Submitted: December 20, 2019
Nos. IN15-03-1133, etc.
ORDER DENYING REPETITIVE MOTION TO REDUCE OR MODIFY
R. Wallace, Judge.
31st day of December, 2019, upon consideration of
the Defendant Tyreek Ducette's Motion for Sentence
Reduction or Modification (D.I. 39[*]) and the record in this
matter, it appears to the Court that:
March 7, 2017, following a non-jury trial, the Court
convicted the Defendant Tyreek Ducette of one count of
Possession of a Firearm by a Person Prohibited
("PFBPP") and one count of Possession of Ammunition
by a Person Prohibited ("PABPP").
Ducette then pleaded guilty in May 2017 to another PFBPP
charge arising from a criminal episode that occurred while he
was on bail for his first firearms offense and was caught
with another loaded handgun.
consolidated sentencing hearing occurred a month later on
June 16, 2017. Mr. Ducette was sentenced to: (a) PFBPP
(INI6-08-1590) -five years at Level V; (b) PFBPP (INI
6-11-1507) - five years at Level V; and (c) PABPP (INI
6-08-1976) - eight years at Level V, suspended in its
entirety for eight years at Level IV (DOC Discretion),
suspended after six months for two years at Level
The sentence has an effective date of November 20, 2016, and
includes 63 days of credit time. Each five-year term of
imprisonment for his PFBPP convictions (IN16-08-1590 and INI
6-11-1507) is a minimum term of incarceration that must be
imposed and cannot be suspended or reduced due to Mr.
Ducette's prior violent felony conviction. Thus, the
unsuspended ten-year Level V term of Mr. Ducette's
sentence is comprised of cumulated minimum or mandatory
periods of incarceration and cannot be suspended or reduced.
Ducette filed no direct appeal from his convictions or
sentences. Instead, he docketed an application under Rule
35(b) requesting reduction of his cumulative Level V
term. That motion was denied.
Ducette has now docketed another motion under Superior Court
Criminal Rule 35(b) requesting reduction of his Level V
term. He asks now that the Court order his
mandatory terms of confinement imposed for his separate PFBPP
counts to run concurrently. In effect, this would cut Mr.
Ducette's prison term in half. According to Mr. Ducette,
this relief is permitted by "New House Bill No.
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 Mr. Ducette's case.
When considering motions for sentence reduction or
modification, this Court addresses any applicable procedural
bars before turning to the merits.
our Supreme Court and this Court have consistently held, Rule
35(b) prohibits consideration of repetitive requests for
sentence reduction or modification. There is no exception to
the repetitive motion bar. And accordingly, the Court
must deny Mr. Ducette's Rule 35(b) motion on this basis
the extent Mr. Ducette suggests that "House Bill No.
5"- which recently further expanded a
Delaware sentencing judge's authority to impose
concurrent, rather than consecutive terms of
confinement-provides some alternative avenue for relief under
Rule 35(b), he is incorrect. "Rule 35(b) is not now, nor
ever has been, an instrument for reexamination of previously
imposed sentences in light of subsequent statutory
Lastly, Mr. Ducette is asking for the retroactive application
of the 2019 Amended Sentencing Act (i.e.,
"House Bill No. 5")-a sentencing reform provision
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." Thus, application of the 2019 Amended
Sentencing Act to modify the terms of Mr. ...