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State v. Johns

Superior Court of Delaware

December 3, 2019

DARIUS K. JOHNS, Defendant

          Submitted: September 27, 2019

          Cr. A. Nos. IN17-03-1270, - 1280, -1695, and -1292



         This 3rd day of December, 2019, upon consideration of the Defendant Darius K. Johns' Second Motion for Sentence Reduction or Modification (D.I. 19[*]), the State's response (D.I. 21), and the record in this matter, it appears to the Court that:

         (1) On October 17, 2017, Defendant Darius K. Johns pleaded guilty to one count of Robbery Second Degree, one count of Robbery First Degree, one count of Possession of a Firearm by a Person Prohibited ("PFBPP"), and one count of Conspiracy Second Degree[1] in exchange for dismissal of the remaining indicted charges and a favorable sentence recommendation by the State (no more than the applicable twenty-year minimum).[2]

         (2) Johns' sentencing occurred several months later, after a pre-sentence investigative report had been prepared and the State had filed an habitual criminal petition. Johns was sentenced: (a) for Robbery Second Degree (IN17-03-1270) -five years at Level V to be served under the provisions of the Habitual Criminal Act;[3](b) for PFBPP (IN17-03-1695) - ten years at Level V; (c) for Robbery First Degree (IN17-03-1280) - 25 years at Level V, suspended after serving five years for diminishing levels of supervision; and (d) for Conspiracy Second Degree (IN17-03-1292) - two years at Level V that was suspended in whole for probation.[4] Johns' cumulative 20-year term of unsuspended imprisonment is comprised wholly of minimum terms of incarceration that must be imposed and cannot be suspended.[5]And Johns' several terms of unsuspended incarceration were ordered, as then-required, to be served consecutively.[6]

         (3) Johns filed no direct appeal from his convictions or sentence. Instead, he docketed a motion under Superior Court Criminal Rule 35(b)[7] requesting reduction of his cumulative 20-year Level V term.[8] That motion was denied.[9]

         (4) Johns has now docketed another Rule 35(b) motion requesting reduction of his Level V term.[10] He asks now that the Court order his mandatory terms of confinement imposed for his robberies and PFBPP to run concurrently.[11]In effect, this would reduce his prison term by cutting it in half. Johns suggests this relief is both permitted by the most recent amendment of 11 Del. C. § 3901(d) and constitutionally required.[12]

         (5) The Court may consider such a motion "without presentation, hearing or argument."[13] The Court will decide his motion on the papers filed and the complete record in Johns' case.

         (6) When considering motions for sentence reduction or modification, this Court addresses any applicable procedural bars before turning to the merits.[14]

         (7) As our Supreme Court and this Court have consistently held, Rule 35(b) prohibits consideration of repetitive requests for sentence reduction or modification.[15] There is no exception to the repetitive motion bar.[16] And accordingly, the Court must deny Johns' Rule 35(b) motion on this basis alone.[17]

         (8) To the extent Johns believes that § 3901(d)'s 2019 amendment[18]- which recently further expanded a Delaware sentencing judge's authority to impose concurrent, rather than consecutive terms of confinement-provides some exceptional avenue for relief under Rule 35(b), [19] he, like many fellow inmates, is wrong.[20] "Rule 35(b) is not now, nor ever has been, an instrument for reexamination of previously imposed sentences in light of subsequent statutory changes."[21]

         (9) Lastly, Johns is demanding retroactive application of the 2019 Amended Sentencing Act-a sentencing reform measure enacted while he was already in prison serving his sentence. As this Court held recently, "the General Assembly neither provided for such retroactivity explicitly nor included special procedures to address its retrospective application."[22] Thus, application of the 2019 Amended Sentencing Act to modify the terms of Johns' sentence and allow certain periods of his confinement to run concurrently is prohibited under Delaware law.[23]And mere incantation of Federal Constitutional provisions and inapplicable federal habeas case law does nothing to assist Johns' effort to gain sentence reduction.[24]

         (10) Johns relies heavily on Teague v. Lane.[25] In Teague, the United States Supreme Court articulated the general rule of non-retroactivity for cases on federal habeas review.[26] Shortly thereafter, in Flamer v. State, our Supreme Court adopted the same general rule of non-retroactivity for cases on Delaware state postconviction review.[27]

         (11) Under that non-retroactivity rule, a court reviewing one's collateral application that seeks to set aside his judgment of conviction "need apply only the constitutional standards that prevailed at the time the original proceedings took place."[28] The 2019 Amended Sentencing Act is no "new rule" of constitutional dimension nor any expression of some binding constitutional standard;[29] it is, rather, a state sentencing reform passed by the Delaware General Assembly based on its current legislative judgment of appropriate criminal sentencing ranges and practices.

         (12) And even if the two Teague-Flamer exceptions to non-retroactivity could be invoked here, [30] they are inapplicable to the 2019 Amended Sentencing Act's passage. The first exception to the general rule of non-retroactivity on collateral review deals with situations where previously criminal conduct has been held to be constitutionally protected activity.[31] The 2019 Amended Sentencing Act did no such thing. The second exception encourages application of a newly announced "watershed rule" of criminal procedure that is implicit in the concept of ordered liberty.[32] To qualify as a "watershed" rule of criminal procedure, the rule must not only improve the accuracy with which defendants are convicted or acquitted, but must also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.[33] The 2019 Amended ...

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