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State v. Thomas

Superior Court of Delaware

October 31, 2019

STATE OF DELAWARE,
v.
DAMION THOMAS, Defendant.

          Submitted: September 16, 2019

          Corrected: November 4, 2019

          Cr. A. Nos. IN17-08-0408, etc.

         Upon Defendant Damion Thomas's Motion for Sentence Modification, DENIED.

          Jordan A. Braunsberg, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, for the State of Delaware.

          Damion Thomas, pro se.

          MEMORANDUM OPINION AND ORDER

          Paul R. Wallace, Judge

         Before the Court is Defendant Damion Thomas's motion for sentence reduction or modification. Thomas, who is serving mandatory terms of incarceration for attempted first degree robbery and possession of a firearm during the commission of a felony, asks the Court to alter his sentence so that he will serve those terms concurrently instead of consecutively.[1] For the reasons stated below, Thomas's application is DENIED.

         I. Factual [2] and Procedural Background

         In May 2017, a young man finished his shift and left his job at a New Castle hoagie shop. When he was just a short distance from work, that young man was approached by Thomas who trained a handgun on him and ordered, "give me all your s-t!" When the victim didn't respond immediately to that demand, Thomas hit him in the head with the butt of the gun. The victim fell to the ground. While he was down, Thomas rifled through the victim's pockets and Thomas's compatriot struck the victim again with the butt of a handgun-this time, in the face. Both Thomas and his partner fled when a Samaritan interceded. But the police traced a cell phone the two had left behind, so Thomas was eventually identified and charged.

         On a mid-July afternoon in 2017, another young man pulled into the parking lot of a New Castle apartment complex to complete a pre-arranged deal to buy marijuana and opioids from Thomas. Once this young man parked, Thomas hopped in the car's rear driver's seat behind him; Thomas's cohort got into the front passenger seat. They demanded the young man hand over his cash. He refused. So Thomas pepper-sprayed him while Thomas's accomplice clubbed the victim with what was believed to be a handgun. The victim reacted by putting the car in gear and driving off erratically. Thomas and his partner bailed out and fled.

         These two attacks yielded two separate indictments that included: one count each of Robbery First Degree, Assault First Degree, Possession of a Deadly Weapon by a Person Prohibited, and Possession of a Firearm by a Person Prohibited; and, two counts each of Attempted Robbery First Degree, Assault Second Degree, Conspiracy Second Degree, Possession of a Deadly Weapon During the Commission of a Felony, and Possession of a Deadly Weapon During the Commission of a Felony (PFDCF).[3] These charges were resolved by two separate agreements through which Thomas pleaded guilty to one count each of Robbery Second Degree (as a lesser offense), PFDCF, Attempted Robbery First Degree, Assault Second Degree, and Conspiracy Second Degree.[4]

         Thomas's sentencing for both matters occurred in September 2018, a few months after his second plea was entered and a combined comprehensive presentence investigative report was prepared. Thomas was sentenced to a total period of forty-three years of incarceration, to be suspended for community supervision after serving six years in prison.[5] Those six years of imprisonment are the sum of two separate three-year minimum mandatory terms of incarceration imposed for the attempted first degree robbery count and for the PFDCF count.[6] Each of those terms was statutorily required and could not be suspended in any part.[7] And under the law extant at the time of Thomas's crimes, guilty pleas, and sentencing, those two terms could not be made to run concurrently.[8]

         Thomas filed no direct appeal from his conviction or sentence. Instead, some ten months after his sentencing, he filed the present motion requesting sentence reduction-that is, that his prison term now be halved.[9]

         II. Neither Superior Court Criminal Rule 35(b) Nor "House Bill 5" Permit The Court to Modify Thomas's Sentence to Allow His Terms of Imprisonment to Run Concurrently.

         When addressing a sentence modification request, the Court must determine whether the procedural mechanism the inmate invokes is available in his circumstance.[10] Thomas asks the Court to modify or reduce his sentence by ordering that his two mandatory unsuspended consecutive three-year terms of imprisonment be served concurrently.

         Like scores of other inmates seeking similar diminution of their pre-2019-imposed sentences over the last few months, Thomas incants "House Bill 5" in his petition. "House Bill 5" refers to the recent initiating legislation of the 150th General Assembly's Act that further expanded a Delaware sentencing judge's authority to impose concurrent, rather than consecutive terms of confinement.[11] But just like those many other inmates, Thomas identifies no court rule, statute, or other procedural provision that would allow the Court to now revisit his sentence. For good reason-there is none.

         A. Superior Court Criminal Rule 35(b) is not available to incite review based on post-sentencing statutory changes.

         Thomas does not specifically cite this Court's Criminal Rule 35(b) in his motion. Yet throughout his papers, he does specifically ask the Court to "modify or reduce" his sentence of imprisonment.[12] And, as a general matter, "[t]here is no separate procedure, other than that which is provided under Superior Court Criminal Rule 35, to reduce or modify a sentence."[13] But Rule 35(b) is not now, nor ever has been, an instrument for reexamination of previously imposed sentences in light of subsequent statutory changes.

         The purpose of Superior Court Criminal Rule 35(b) is to provide a reasonable period for the Court to consider alteration of its sentencing judgment.[14] "The reason for such a rule is to give a sentencing judge a second chance to consider whether the initial sentence is appropriate."[15] And "[a] request for leniency and reexamination of the sentencing factors [extant when the original sentence was imposed are] precisely the stuff of which a proper and timely Rule 35(b) motion is made."[16]

         An untimely Rule 35(b) application, on the other hand, is permitted only when an inmate demonstrates "extraordinary circumstances" for consideration.[17]The term "extraordinary circumstances" is generally defined as "[a] highly unusual set of facts that are not commonly associated with a particular thing or event."[18] And for the purposes of Rule 35(b), "extraordinary circumstances" have been found only "when an offender faces some genuinely compelling change in circumstances that makes a resentencing urgent."[19]

         In short, Rule 35(b) is a rule limited to reconsideration and altering of a sentence either upon: (1) immediate reexamination of factors individual to the moving inmate and his or her particular case; or (2) later consideration only when there is a truly compelling change in that inmate's individual circumstances that presents an urgent need for revision of the sentence's terms.[20] It is not some contrivance allowing review of any existing sentencing judgment because of any favorable change in statutory sentencing law occurring after an inmate's sentence was imposed and based on some systemic shifting of principles or policies not specific to the inmate seeking relief.[21] That type of sentence review-if and when available-is governed by statutes and rules carefully tailored to its precise purpose.[22] Rule 35(b) is certainly "no vehicle" to engage when seeking such sentence relief.[23]

         B. "House Bill 5"-the most recent amendment of § 3901(d) granting Delaware judges greater discretion to impose concurrent terms of imprisonment for certain crimes-does not apply retroactively to sentences imposed before June 25, 2019, the effective date of the amendment.

         Section 3901 of the Delaware Criminal Code provides for the fixing of terms of imprisonment. For almost forty years, § 3901(d) read: "No sentence of confinement of any criminal defendant by any court of this State shall be made to run concurrently with any other sentence of confinement imposed on such criminal defendant."[24] The first lifting of this complete ban on concurrent ...


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