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State v. Roberts

Superior Court of Delaware

November 27, 2019

BRYAN D. ROBERTS, Defendant.

          Submitted: September 5, 2019

          Cr. A. Nos. IN17-08-0842, etc.

          James K. McCloskey, Deputy Attorney General Timothy J. Weiler, Esquire Mr. Brian D. Roberts, pro se


          Paul R. Wallace, Judge.

         This 27th day of November, 2019, upon consideration of the Defendant Bryan D. Roberts's Pro Se Motions for Additional Credit Time (D.I. 58) and Sentence Reduction or Modification (D.I. 56 and 57), the State's response to those motions (D.I. 61), Roberts' reply (D.I. 62), and the record in this matter, it appears to the Court that:

         (1) On September 18, 2017, a New Castle County grand jury indicted Roberts for Possession of a Firearm By a Person Prohibited (PFBPP), Possession of Ammunition By a Person Prohibited, Carrying a Concealed Deadly Weapon, and Possession of Drug Paraphernalia.[1]

         (2) After a three-day jury trial conducted in March 2018, Roberts was convicted of all charges.[2] After his counsel successfully argued for and obtained Roberts a new trial, [3] Roberts pleaded guilty to the PFBPP count. The plea was a consolidated resolution of these new charges and Roberts' then-pending probation violation from earlier robbery and attempted robbery convictions.[4] Roberts pled in exchange for dismissal of the remaining charges and the State's favorable sentencing recommendation (a total cap of seven years unsuspended imprisonment with other terms).[5]

         (3) Roberts' sentencing occurred several months later, after a presentence investigation report was prepared. Roberts was sentenced to: (a) PFBPP (IN 17-08-0842) - 15 years at Level V, suspended after five years for ten years at Level IV (DOC Discretion), suspended after six months for two years at Level III; (b) VOP-Robbery First Degree (VN09-11-1580-03) - one year at Level V; and (c) VOP-Attempted Robbery First Degree (VN09-11-1581-02) - six days at Level V.[6]

         (4) The five-year term of imprisonment for PFBPP is a minimum term of incarceration that must be imposed and cannot be suspended or reduced.[7] As required by then-extant law, Roberts term of confinement for PFBPP could not be made to run concurrently with either VOP sentence.[8] Nor could the VOP sentences run concurrently with each other as one arose from his prior robbery conviction.[9] Consequently, Roberts must serve a cumulative unsuspended six-year and six-day Level V term before he transitions to community supervision. And that combined sentence's effective date is August 4, 2017.[10]

         (5) Roberts filed no direct appeal from his conviction, violation of probation, or their sentences.[11]

         (6) Roberts has now filed the instant applications requesting some form of sentencing relief: (a) a Rule 35(b) (D.I. 57); (b) a letter that supplements that Rule 35(b) application and requests retroactive application of recent amendments to 11 Del. C. § 3901(d) (D.I. 56); and, (c) a motion for additional credit time (D.I. 58).

         (7) Upon review of the parties' recent filings, it appears any disagreement regarding the calculation of Roberts' credit time has been resolved. The State reports that any error Roberts claims was in his Department of Correction Offender Status Sheet has been corrected and Roberts has received credit for the 12 days he says were previously unaccounted for.[12] Roberts agrees in his reply that any claimed error has been corrected.[13] It is clear that request for additional credit time (D.I. 58) is, therefore, MOOT.

         (8) Roberts also docketed a separate motion under Superior Court Criminal Rule 35(b) requesting reduction of his Level V term.[14] He asks now that the Court order his mandatory term of confinement imposed for PFBPP and his VOP terms be deemed to have run concurrently.[15] In effect, this would reduce his prison term by one year and six days. According to Roberts, this relief is permitted by "New 'State Bill 5'" and is appropriate because of his rehabilitative efforts, acceptance of responsibility, and familial hardship.[16]

         (9) The Court may consider such a motion "without presentation, hearing or argument."[17] The Court will decide his motion on the papers filed and the complete sentencing record in Roberts' case.

         (10) When considering motions for sentence reduction or modification, this Court addresses any applicable procedural bars before turning to the merits.[18]

         (11) "Rule 35(b) requires that an application to reduce imprisonment be filed promptly - i.e. within 90 days of the sentence's imposition - 'otherwise, the Court loses jurisdiction' to act thereon."[19] An exception to this bar exists: to overcome the 90-day time limitation, an inmate seeking to reduce a sentence of imprisonment on his or her own motion must demonstrate "extraordinary circumstances."[20] A heavy burden is placed on the ...

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