Submitted: September 5, 2019
Nos. IN17-08-0842, etc.
K. McCloskey, Deputy Attorney General Timothy J. Weiler,
Esquire Mr. Brian D. Roberts, pro se
ORDER DENYING MOTIONS FOR CREDIT TIME TO REDUCE OR
R. Wallace, Judge.
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:
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
After a three-day jury trial conducted in March 2018, Roberts
was convicted of all charges. After his counsel successfully
argued for and obtained Roberts a new trial,  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. 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).
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.
five-year term of imprisonment for PFBPP is a minimum term of
incarceration that must be imposed and cannot be suspended or
reduced. As required by then-extant law, Roberts
term of confinement for PFBPP could not be made to run
concurrently with either VOP sentence. Nor could the VOP
sentences run concurrently with each other as one arose from
his prior robbery conviction. 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,
Roberts filed no direct appeal from his conviction, violation
of probation, or their sentences.
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).
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. Roberts agrees in his reply that any
claimed error has been corrected. It is clear that request
for additional credit time (D.I. 58) is, therefore,
Roberts also docketed a separate motion under Superior Court
Criminal Rule 35(b) requesting reduction of his Level V
term. 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. 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
Court may consider such a motion "without presentation,
hearing or argument." The Court will decide his
motion on the papers filed and the complete sentencing record
in Roberts' case.
When considering motions for sentence reduction or
modification, this Court addresses any applicable procedural
bars before turning to the merits.
"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." 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." A heavy burden is placed on the ...