L. MEDINILLA, JUDGE
TO WIT, this 13th day of January 2020, upon
consideration of William H. Piatt Jr.'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:
March 19, 2018, Defendant pleaded guilty to three counts of
Robbery First Degree, Attempted Robbery Second Degree, and
Theft Over $1, 500. On June 22, 2018, Defendant was sentenced
to a sum of eighty-two years at Level V, suspended after ten
years at Level V, followed by transitioning levels of
probation. This included a minimum mandatory sentence
of nine years-three years minimum mandatory for each count of
Robbery First Degree.
September 30, 2019, Defendant filed this
motion. Defendant does not specifically cite to
Superior Court Criminal Rule 35(b) in his motion. However, in
his motion he asks the Court to modify his Level V sentences
to run concurrently. Generally, "[t]here is no separate
procedure, other than that which is provided under Superior
Court Criminal Rule 35, to reduce or modify a
sentence." The Court therefore considers this request
under Superior Court Criminal Rule 35(b).
support of his motion, Defendant states the following grounds
for relief: (1) Defendant concedes his motion is time-barred,
but argues that amendments to "house bill 5,"
qualify as "extraordinary circumstances[;]" (2)
Defendant argues that § 3901(d) "permits this court
to run . . . sentences of confinement concurrently[;]"
and (3) Defendant argues that he "is an optimal
candidate for concurrent sentencing[.]"
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. Defendant is
time-barred. In order to overcome the ninety-day time bar,
Defendant must show that "extraordinary
circumstances" forgive the tardiness of his
Defendant's reference to "house bill 5" and 11
Del. C. § 3901 does not qualify under
extraordinary circumstances. Defendant argues that the Court
has discretion to retroactively apply these statutory
provisions. Defendant's arguments lack merit and are
incorrect. Defendant was sentenced in June 2016 and 11
Del. C. § 3901(d) was amended in June 2019.
Even if the offenses for which he pled guilty fell within the
new discretionary provisions for the fixing of terms of
imprisonment under § 3901(d), the provisions cannot be
applied retroactively to modify a consecutive sentence to run
concurrently in accordance with Delaware case
law. Even if applicable, discretion afforded
the Court would lead to the same conclusion and the request
Additionally, Superior Court Criminal Rule 35(b) also
provides that "[t]he court will not consider
repetitive requests for reduction of
sentence." A motion is considered repetitive when
it "is preceded by an earlier Rule 35(b) motion, even if
the subsequent motion raises new
arguments." The bar to repetitive motions has no
exception. It is absolute and flatly "prohibits
repetitive requests for reduction of
sentence." This Court denied Defendant's first
Motion for Modification of Sentence on October 24,
2018. Therefore, this second Rule 35(b) motion
is also barred as repetitive.
Furthermore, 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, where Defendant is subject to
a minimum mandatory sentence, Defendant's motion is
Defendant's motion is time-barred, barred as repetitive,
and denied where Defendant is subject to a minimum mandatory
sentence. As such, Defendant's Level V sentences are
consecutive and remain appropriate for all the reasons stated
at the time of sentencing.
IS SO ORDERED that Defendant's Motion for
Modification is DENIED.