L. MEDINILLA, JUDGE
NOW TO WIT, this 13th day of November,
2019, upon consideration of Defendant Byron P. White's
("Defendant") Motion for Modification of Sentence,
the sentence imposed upon the Defendant, and the record in
this case, it appears to the Court that:
July 26, 2018, Defendant pleaded guilty to two counts of Rape
Third Degree. On September 24, 2018, Defendant was
issued two consecutive sentences of twenty-five years at
Level V, suspended after two years minimum mandatory at Level
V for three years at Level III, probation to be served
concurrently. In sum, he received four years of
incarceration followed by three years at Level III probation.
Those four years of imprisonment are the sum of two separate
two-year minimum mandatory terms of incarceration.
December 20, 2018,  Defendant asked this Court to modify his
sentence under Rule 35(b). Defendant requests for the Court to
modify/reduce his sentence by "concurrent and any other
relief the court may grant [sic]." In support of his
motion, Defendant states eighteens grounds for
sentence in Defendant's case was imposed pursuant to a
Plea Agreement between the State and Defendant. After an
appropriate colloquy, the Court addressed Defendant in open
court pursuant to Superior Court Criminal Rule 11(c)(1) and
determined that he understood the nature of the charge to
which the plea was offered, the mandatory minimum penalty
provided by law and the maximum statutory penalties.
Defendant fully acknowledged in open court that the range of
possible penalties included the sentence that was imposed by
the Court in this case.
Under Superior Court Criminal Rule 35(b), the Court may
reduce a sentence of imprisonment on a motion made within
ninety days after the sentence is imposed. "Rule 35(b)
allows for a reduction of sentence without regard to the
existence of a legal defect." Thus, relief under Rule
35(b) is within the sound discretion of the Sentencing
Court. Accordingly, a timely and non-repetitive
Rule 35(b) motion is "essentially a 'plea for
leniency.'" However, Superior Court Rule of Criminal
Procedure 35(b) provides no authority for a reduction or
suspension of the mandatory portion of a substantive
statutory minimum sentence. Therefore, while
Defendant's motion is not time barred, it is nonetheless
denied, where Defendant is subject to a minimum mandatory
Furthermore, although Defendant does not specifically cite to
any rule in his motion, Defendant seemingly asks this Court
to modify his sentence to allow for his two consecutive terms
of minimum mandatory incarceration, to run concurrently. In
considering this request, the Court looks to 11 Del.
C. § 3901 that "provides for the fixing of
terms of imprisonment." This Court has held that
§ 3901(d) cannot be applied retroactively to modify a
consecutive sentence to run concurrently. Therefore,
where the Court cannot apply § 3901(d) retroactively,
Defendant's sentences cannot be modified to run
concurrently, where § 3901(d) 2019 amendments were made
in June 2019 and where Defendant was sentenced in September
2018. As such, the sentence was and remains appropriate for
all the reasons stated at the time of sentencing.
SO ORDERED that Defendant's Motion for Modification of
Sentence is DENIED.
 Final Case Review: Pled Guilty. PSI
Ordered. Sentencing 09/13/2018, State of Delaware v.
Byron P. White, Crim. ID No. 1802004471, D.I. 16 (Del.
Super. July 26, 2018).
 Sentence Order Filed, State of
Delaware v. Byron P. White, Crim. ID No. 1802004471,
D.I. 19 (Del. Super. Sept. 24, 2018).
 Defendant's motion was initially
filed on December 20, 2018 with the Kent County Prothonotary;
thereafter, due to a change of venue, it was sent to this
Court and received on August 15, 2019. The Court will apply
Defendant's original filing date in considering
See Motion for Modification
of Sentence Filed (Pro Se), State of Delaware v. Byron P.
White, Crim. ID No. 1802004471, D.I. 20 (Dec. 20, 2018);
see also Motion for Modification of Sentence Filed
(Pro Se), State of Delaware v. Byron P. White, Crim.
ID No. 1802004471, D.I. 21 ...