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State v. Lum

Superior Court of Delaware

November 13, 2019

STATE OF DELAWARE
v.
DATWAN LUM, Defendant.

          Submitted: October 8, 2019

          James K. McCloskey, Deputy Attorney General

          Datwan J. Lum, pro se (SBI No. 00502966)

          ORDER DENYING DATWAN LUM'S MOTION FOR SENTENCE MODIFICATION

          MEGHAN A. ADORNS, JUDGE

         The Court has reviewed Defendant's Motion for Sentence Modification ("Motion") and the State's response thereto. And now, this 13th day of November, 2019, the Court makes the following findings and conclusions:

         1. On December 22, 2014, a grand jury returned two separate indictments against Defendant Datwan Lum. The indictments arose out of a burglary on August 25, 2014, 2. One indictment (case number 1408022140) charged Defendant with Burglary Second Degree, three counts of felony Theft, Conspiracy Second Degree, Criminal Mischief and Receiving Stolen Property stemming from the burglary.

         3. The second indictment (case number 1408022157) charged Defendant with Possession of a Firearm by a Person Prohibited ("PFBPP"), Carrying a Concealed Deadly Weapon ("CCDW"), Receiving a Stolen Firearm, Resisting Arrest and Possession of Marijuana stemming from Defendant's arrest from the initial burglary investigation. Defendant proceeded to separate trials in both cases.

         4. On September 3, 2015, a jury returned guilty verdicts on Burglary Second Degree, two counts of felony Theft, Conspiracy Second Degree, Receiving Stolen Property and Criminal Mischief.

         5. Case number 1408022157 was severed into parts A&B. This case resulted in three trials. The first trial ended in a mistrial after the jury could not reach a unanimous verdict. Defendant was convicted in the second trial. The Court, however, granted Defendant's motion for a new trial based on the Court's Allen charge to the jury.[1] The third jury returned guilty verdicts for PFBPP, CCDW and Resisting Arrest.

         6. Following a pre-sentence investigation on both cases, on August 26, 2016, the Court sentenced Defendant to five years at Level V for PFBPP (minimum-mandatory), one year at Level V for CCDW and one year at Level V for Burglary Second Degree (minimum-mandatory), followed by probation for the remaining offenses. The Court ordered Defendant to serve the Level V sentences consecutively for a total of seven years.

         7. On July 19, 2019, Defendant filed his Motion for Modification of Sentence. In his Motion, Defendant argues that the newly enacted "House Bill #5" states that "it [is] designed so inmates can get lesser prison sentence[s] under concurrent sentences instead of consecutive sentences." As such, Defendant argues that the Court should reduce his sentence to time served because he has "already served 5 y[ea]rs at level-5, and if [he] was sentenced under a concurrent sentence from day one, [he] would [have] got[ten] a lesser sentence th[a]n 7 y[ea]rs from being sentenced consecutive." Although not explicitly referenced, Defendant is presumably discussing the recent amendment to 11 Del C 3901(d).[2]

         8. Pursuant to Superior Court Criminal Rule 35, the Court may reduce a sentence of imprisonment on a motion promptly made, i.e., within 90 days after the sentence is imposed.[3] The Court has broad discretion under this rule to decide if it should alter its judgment when a motion for reduction of sentence is filed within 90 days of sentencing.[4] "The reason for such a rule is to give a sentencing judge a second chance to consider whether the initial sentence is appropriate."[5]

         9. If a motion is not made within 90 days of the sentence's imposition, an inmate seeking to reduce a sentence of imprisonment must demonstrate "extraordinary circumstances."[6]

         10. In order to "uphold the finality of circumstances/' Delaware law places a heavy burden on the moving party to demonstrate extraordinary circumstances.[7] The Supreme Court of Delaware has defined "extraordinary circumstances" in the context of Rule 35 as circumstances that "specifically justify the delay;" are "entirely beyond a petitioner's control;" and "have ...


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