IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, ) ) ) v. ) ID No. 1408013012 ) ) JOSE G. LOPEZ-MONCADA, ) ) Defendant. )
ORDER
Defendant has moved for a modification of the sentence imposed
after he entered pleas of guilty to one count of third offense DUI and one
count of reckless driving alcohol related, the latter of which arose from a
separate incident. As part of the plea agreement the State agreed not to
seek more than seven months incarceration at Level 5 for the DUI
charge. On December 19, 2014 Defendant was sentenced for a third-
offense DUI as follows:
• Two years at Level 5. This sentence was imposed pursuant to 11 Del. C. § 4202(k), meaning that Defendant is not entitled to any form of early release.
• Six months at Level 3 probation following completion of the two year Level 5 sentence. This probation was imposed pursuant to 11 Del. C. § 4202(l) because the court determined he was in need of additional treatment and monitoring.
The sentence imposed for the reckless driving alcohol related conviction
is not at issue here. Defendant argues in his Rule 35 motion that (1) his sentence was
excessive; (2) the prosecutor made improper comments at sentencing
when he “impliedly suggested” that the court exceed the sentence agreed
upon in the plea agreement; (3) the sentence was imposed in violation of
“the spirit of Supreme Court Administrative Directive 76;” (4) his
treatment needs exceed the need for maximum incarceration; and (5) the
court’s use of section 4204(k) is inconsistent with SENTAC policy.
The sentence was not excessive.
Defendant argues that his sentence was excessive. He asserts that
a “seasoned prosecutor determined that under the totality of
circumstances, and compared with similar cases handled by his office,
that 7 months was a reasonable amount of Level 5 time.” Defendant
expressly recognizes, however, that sentencing authority is vested in the
court and not in the office of the prosecutor.
After a review of the record the court concludes that Defendant’s
sentence was not excessive. This is Defendant’s third DUI conviction
within the past five years and his second within the past two years. He
was pulled over by a police officer for driving in excess of 80 m.p.h. on I-
495. After being stopped Defendant swayed when he walked and his
eyes were glassy and bloodshot. Defendant refused to undergo field
sobriety tests and refused an intoxilyzer test. He was then charged with
DUI.
2 While out on bail for this offense Defendant was involved in a one
car accident in Newport. When police arrived they observed that
Defendant struck two light posts and a tree. Defendant told the police he
had ostensibly swerved to avoid “something” in the middle of the road.
The police observed that Defendant struck two light posts and a tree
while ostensibly swerving to avoid “something.” Because of his injuries
Defendant was taken to the emergency room where his blood alcohol
content was measured at .021, well in excess of the legal limit of .008.
Defendant has previously been charged with multiple offenses, all
or some of which appear to be alcohol-related.
• In 2008 he was imprisoned for convictions of riot and conspiracy second degree. These convictions arose from a gang-related incident in which a victim was shot to death.
• A few months after his release from prison in 2009 Defendant led Delaware police on a 100 m.p.h. chase on I-95 into Pennsylvania where he crashed his car. He was convicted of assorted offenses in Delaware and DUI in Pennsylvania as a result of this incident.
• In the next two years Defendant was convicted of several driving related offenses on four separate occasions. His convictions included driving without a valid license, driving across a median and driving while intoxicated.
• In 2011 Defendant was sentenced to probation by the Court of Common Pleas after he became unruly in a 7-Elevn and refused a police officer’s command to leave the store. According to the police report, the officer detected a strong odor of alcohol on Defendant’s breath.
In his interview with a presentence investigator Defendant
described himself as a “functional alcoholic” who “doesn’t need to drink.”
3 He said he drinks only “every once in a while” and that he drinks to
excess only when he is “bored.”
The court concluded at sentencing, and reaffirms that conclusion
now, that Defendant has a serious alcohol abuse problem. Although
defendant professed at sentencing that he now realizes that he needs
treatment, the court finds his assertions to be self-serving and insincere.
In particular, the fact that Defendant was driving while highly intoxicated
when he was out on bail awaiting trial on a felony DUI charge belies his
professed acknowledgement of his problem and his need for treatment.
The court repeats its finding that Defendant presents a serious menace
to innocent drivers and, because defendant does not appear to be
amenable to treatment at this time, the focus of his sentence must be on
protecting those innocent drivers from Defendant.
The prosecutor did not make improper remarks at sentencing.
Citing Santobello v. New York, 1 Defendant argues that the
prosecutor made improper comments at sentencing when he “impliedly
suggested” that the court exceed the sentence agreed upon in the plea
agreement. The State agreed not to seek more than seven months of
Level 5 time as part of its plea agreement. Defendant contends that the
State breached this agreement by “impliedly” urging the court to
sentence him to more than seven months. Therefore, according to
1 404 U.S. 267 (1971).
4 Defendant, under Santobello he has been deprived of his right to due
process.
The court finds that the State did not breach its agreement to
recommend no more than seven months at Level 5. The prosecutor
scrupulously avoided asking for a sentence in excess of seven months.
To be sure, the prosecutor’s comments fairly placed Defendant in an
unpleasant (but realistic) light, but that was the prosecutor’s obligation
to do so. For all the prosecutor knew, the court could have sentenced
Defendant to less than seven months, and therefore he had every right to
point out factors which justified a seven month sentence. The fact that
these factors, and others not mentioned by the prosecutor, led the court
to impose a longer sentence simply does not constitute a breach of the
prosecutor’s agreement.
The sentence did not violate Supreme Court Administrative Directive 76.
Defendant points out that Administrative Directive 76 requires this
court to set out aggravating factors when exceeding the SENTAC
guidelines. He concedes that his conviction for felony DUI is not covered
by SENTAC and therefore Administrative Directive 76 does not apply
here. He contends, however, that the “spirit” of that Directive applies. It
is difficult to understand why the spirit of Administrative Directive 76
requires the court to list aggravating factors when it exceeds guidelines
for sentencing in a felony DUI when no such guidelines (aside from the
statutory minimum and maximum) exist. In any event, the court made it
5 clear on the record why it chose not to follow the State’s recommendation
of seven months. The fact that those reasons were not listed in the
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, ) ) ) v. ) ID No. 1408013012 ) ) JOSE G. LOPEZ-MONCADA, ) ) Defendant. )
ORDER
Defendant has moved for a modification of the sentence imposed
after he entered pleas of guilty to one count of third offense DUI and one
count of reckless driving alcohol related, the latter of which arose from a
separate incident. As part of the plea agreement the State agreed not to
seek more than seven months incarceration at Level 5 for the DUI
charge. On December 19, 2014 Defendant was sentenced for a third-
offense DUI as follows:
• Two years at Level 5. This sentence was imposed pursuant to 11 Del. C. § 4202(k), meaning that Defendant is not entitled to any form of early release.
• Six months at Level 3 probation following completion of the two year Level 5 sentence. This probation was imposed pursuant to 11 Del. C. § 4202(l) because the court determined he was in need of additional treatment and monitoring.
The sentence imposed for the reckless driving alcohol related conviction
is not at issue here. Defendant argues in his Rule 35 motion that (1) his sentence was
excessive; (2) the prosecutor made improper comments at sentencing
when he “impliedly suggested” that the court exceed the sentence agreed
upon in the plea agreement; (3) the sentence was imposed in violation of
“the spirit of Supreme Court Administrative Directive 76;” (4) his
treatment needs exceed the need for maximum incarceration; and (5) the
court’s use of section 4204(k) is inconsistent with SENTAC policy.
The sentence was not excessive.
Defendant argues that his sentence was excessive. He asserts that
a “seasoned prosecutor determined that under the totality of
circumstances, and compared with similar cases handled by his office,
that 7 months was a reasonable amount of Level 5 time.” Defendant
expressly recognizes, however, that sentencing authority is vested in the
court and not in the office of the prosecutor.
After a review of the record the court concludes that Defendant’s
sentence was not excessive. This is Defendant’s third DUI conviction
within the past five years and his second within the past two years. He
was pulled over by a police officer for driving in excess of 80 m.p.h. on I-
495. After being stopped Defendant swayed when he walked and his
eyes were glassy and bloodshot. Defendant refused to undergo field
sobriety tests and refused an intoxilyzer test. He was then charged with
DUI.
2 While out on bail for this offense Defendant was involved in a one
car accident in Newport. When police arrived they observed that
Defendant struck two light posts and a tree. Defendant told the police he
had ostensibly swerved to avoid “something” in the middle of the road.
The police observed that Defendant struck two light posts and a tree
while ostensibly swerving to avoid “something.” Because of his injuries
Defendant was taken to the emergency room where his blood alcohol
content was measured at .021, well in excess of the legal limit of .008.
Defendant has previously been charged with multiple offenses, all
or some of which appear to be alcohol-related.
• In 2008 he was imprisoned for convictions of riot and conspiracy second degree. These convictions arose from a gang-related incident in which a victim was shot to death.
• A few months after his release from prison in 2009 Defendant led Delaware police on a 100 m.p.h. chase on I-95 into Pennsylvania where he crashed his car. He was convicted of assorted offenses in Delaware and DUI in Pennsylvania as a result of this incident.
• In the next two years Defendant was convicted of several driving related offenses on four separate occasions. His convictions included driving without a valid license, driving across a median and driving while intoxicated.
• In 2011 Defendant was sentenced to probation by the Court of Common Pleas after he became unruly in a 7-Elevn and refused a police officer’s command to leave the store. According to the police report, the officer detected a strong odor of alcohol on Defendant’s breath.
In his interview with a presentence investigator Defendant
described himself as a “functional alcoholic” who “doesn’t need to drink.”
3 He said he drinks only “every once in a while” and that he drinks to
excess only when he is “bored.”
The court concluded at sentencing, and reaffirms that conclusion
now, that Defendant has a serious alcohol abuse problem. Although
defendant professed at sentencing that he now realizes that he needs
treatment, the court finds his assertions to be self-serving and insincere.
In particular, the fact that Defendant was driving while highly intoxicated
when he was out on bail awaiting trial on a felony DUI charge belies his
professed acknowledgement of his problem and his need for treatment.
The court repeats its finding that Defendant presents a serious menace
to innocent drivers and, because defendant does not appear to be
amenable to treatment at this time, the focus of his sentence must be on
protecting those innocent drivers from Defendant.
The prosecutor did not make improper remarks at sentencing.
Citing Santobello v. New York, 1 Defendant argues that the
prosecutor made improper comments at sentencing when he “impliedly
suggested” that the court exceed the sentence agreed upon in the plea
agreement. The State agreed not to seek more than seven months of
Level 5 time as part of its plea agreement. Defendant contends that the
State breached this agreement by “impliedly” urging the court to
sentence him to more than seven months. Therefore, according to
1 404 U.S. 267 (1971).
4 Defendant, under Santobello he has been deprived of his right to due
process.
The court finds that the State did not breach its agreement to
recommend no more than seven months at Level 5. The prosecutor
scrupulously avoided asking for a sentence in excess of seven months.
To be sure, the prosecutor’s comments fairly placed Defendant in an
unpleasant (but realistic) light, but that was the prosecutor’s obligation
to do so. For all the prosecutor knew, the court could have sentenced
Defendant to less than seven months, and therefore he had every right to
point out factors which justified a seven month sentence. The fact that
these factors, and others not mentioned by the prosecutor, led the court
to impose a longer sentence simply does not constitute a breach of the
prosecutor’s agreement.
The sentence did not violate Supreme Court Administrative Directive 76.
Defendant points out that Administrative Directive 76 requires this
court to set out aggravating factors when exceeding the SENTAC
guidelines. He concedes that his conviction for felony DUI is not covered
by SENTAC and therefore Administrative Directive 76 does not apply
here. He contends, however, that the “spirit” of that Directive applies. It
is difficult to understand why the spirit of Administrative Directive 76
requires the court to list aggravating factors when it exceeds guidelines
for sentencing in a felony DUI when no such guidelines (aside from the
statutory minimum and maximum) exist. In any event, the court made it
5 clear on the record why it chose not to follow the State’s recommendation
of seven months. The fact that those reasons were not listed in the
sentencing order in this non-SENTAC case is of no significance.
Defendant’s treatment needs do not require a shorter sentence.
Defendant asserts that his treatment needs exceed the need for
maximum incarceration. This is little different than his argument that
his sentence is excessive. As mentioned previously, the court concluded
(and still finds) that Defendant’s amenability to treatment was so
insubstantial that the need to protect innocent drivers predominates in
the sentencing calculus.
The use of Section 4202(k) is not inappropriate.
The court imposed this sentence pursuant to 11 Del. C. §4204(k),
which means that Defendant is not entitled to any early release for good
time or other reasons. He contends that such sentences add complexity
to the management of the prison population and, if used
indiscriminately, can substantially increase prison populations.
Therefore, according to Defendant, this court must use section 4204(k)
sparingly and then only in exceptional circumstances.
One might intuitively imagine that the absence of any opportunity
for good time makes it more difficult for correctional officers to manage a
prisoner. But the court is not aware of any data supporting this
hypothesis. Nor is the court aware of any data showing that the
6 occasional use of section 4204(k) in DUI cases has had any marked effect
on prison populations. Nonetheless the court has traditionally been
reluctant to use section 4204(k) when imposing any sentence, and
reserves that sanction for appropriate cases, such as ones in which the
need for protection of the public is predominate. This is one such case.
Defendant’s motion for reduction or modification of his sentence is
therefore DENIED.
Dated: June 3, 2015 John A. Parkins, Jr. Superior Court Judge
oc: Prothonotary
cc: Zachary Rosen, Esquire, Department of Justice, Wilmington, Delaware Michael W. Modica, Esquire, Michael W. Modica Law Office, Wilmington, Delaware