State of Delaware v. Unique Loper

• Court: Delaware Court of Common Pleas
• Decided: June 26, 2014
• Docket: 1307012739
• Status: Published

Opinion

IN THE ooURT oF coMMoN PLEAS FoR THE sTATE oF DELAWARE IN ANI) FoR NEW CASTLE CoUNTY

sTATE oF DELAWARE

) ) ) y v. ) Case No. 1307012739 l UNIQUE LOP]ER, ) ) Defendant. ) submia@d; Jun@ 13, 2014 Deoided: 'J'une 24, 2014 Christopher l\/Iarques, Esquire Unique Loper Deputy Attorney General t . Self-Represented lnmate #00440799 820 N. Frenoh Street 1 H.R.Y.C.I. Wilmington, DE 19801 f P.O. BoX 9501 Az‘torneyfor State ~ l Wilmington, DE 19801

d t ORDER v v On Defendant’s Motion to Modify Sentence

Defendant, Unique T. Loper (hereinafter "Loper") brings this motion for

modification or reduction of his sentence pursuant to Court of Cornrnon Pleas Crz`/¢zz`ncz/

% Rzz/e 35 and Crz’wz'na/ Rz¢/e 67.

Loperxvas arrested on Fehruary 7, 2013 and charged motor vehic;leoffenses of Driving After judgment Prohihited, in violation of 27 De/. C. 28 7 O(a); Failure to Have Ins¢granee identification in Possession, in violation of 27 De/. C. 2778@)}( 7 ); Failure to Have Registration Card in Possession,in violation of 27 Dei C.`270

and Carrv License, in violation of 27 De/. C. 272

[Type text]

On August 6, 2013, Loper entered a plea to driving After judgment Prohibited and Failure to l~ilave insurance The Court on the Driving After judgment Prohibited

offense imposed a fine of $1,000 and committed him to Level V for a period of

(30) months, with no probation to follow. ltis the thirty (30) month sentence which _

Loper moves the Court to modify. g

The language ofiCourt of Common Pleas Crz'mz`mz/ Ru/e 35 provides in relevant

f part that, "The Courtmay reduce a sentence of imprisonment on a motion made withtiri

90 days after the sentence is imposed . . . The Court may consider an application made

` thereafter only in extraordinary circumstances . . . The Court will not consider repetitive

requests for reduction of sentence.:§’

Loper filed a motion for reduction of sentence on August 27, 2.013, which was timely under the rules. This Court on @ctober 16, 2013, denied the motion after due consideration. In t.hatmotion, Loper argued that the sentence was too long because he

was driving his girlfriend to the hospital as a result of pain she was experiencing during

l the pregnancy

In the present motion, which l consider under the extraordinary circumstances

provision, Loper advances three arguments. First, that the sentence imposed is the

maximum allowed under the statute; therefore, the sentence is excessive, and constitutes

.cruel and unusual punishment. Secondly, he alleges that he agreed with his attorney

when he took the plea that there was an understanding withthe State that the plea was for 60 days in custody. Thirdly, he argues that attorney was ineffective because when

he asked about why the State took the 60 days back, he was lead to believe that his

lawyer would pursue the issue, but was never addressed

The St_ate opposes the motion setting fortha series of factors it argues justify the sentence. The State pointto the fact that from 2010 to the date of sentencing, loper had been convicted of two (2) insurance violations g seven (7) No Valid License offenses 5 four (4) Driving During Suspension_/Revocation offenses; one Failure to Comply With Conditions of Bond; and twenty-two (22) violation of probation offenses. Further,

the State argues that when Loper was arrested for the Driving During judgment

Prohibited charge, he was on Level l probation for a Driving During Suspension/Revocation offense. f

Addressing seriatim the allegations of Loper, the language of 27 De/. C. 2870 provide that upon a conviction for a first offense, t`_ie sentence may include a period of

imprisonment up to 30 months Loper argues that his sentence of30 months, which is

t the maximum allowable under the statute, is cruel and unusual punishment. The Ez;g/vz‘/a

Awendwen¢ of the United States Constitution as applied to the States through the 74”’

l Awendwenz‘ prevents punishments which are cruel and unusual. The Ezg/yz‘/a Amencz’went

analysis of such principle involves two issues First is proportionality of the sentence

and the second pertains to the method or mode of punishment. ;S`z‘;zz*zz a Wap/tm¢,j 2002

\WL 126400, Del.i Super. The fact that the maximum allowable prison sentence was

imposed does not alone give rise to cruel and unusual punishment Further, Loper was

on probation for a driving offense when he was arrested on the offense forwhich he

was sentenced. Additionally, he had been convicted on several prior occasions for

l)riving While License Susp endedRevoked.

The declared policy of the Habitual Offender provisions is to provide maximum

t safety for all persons who travel or otherwise use the public highways of this State.i

Clearly, Loper’s record indicates he had demonstrated indifference to the safety and

welfare of others NY/hile the sentence is long, it isi imposed to achieve the much needed purpose of safety which is the purpose for which the statute was enacted. Thus, there is no basis for which l can conclude the sentence is not appropriate based upon the acts of Loper in this incident.

Secondly, Loper argues that pursuant to the plea agreement, he was to receive a

60 day sentence. This argument is not supported by the record %The plea agreement set

forth the minimum and maximum range of penalties Additionally, under State

recommendations it is clearly stated "open sentencing,"which imeans the State was

reserving the right to take any position at sentencing :During the colloquy, the State

indicated on the record itwas open sentencing Further, the Court reviewed with Loper

all the rights in the plea document, inquired if he had questions forthe Court and read the lnformation to l,oper. Loper responded to all the Court’ s questions that he understood the charges and was guilty of the offenses charged.

During the sentencing stage, the State requested the Court impose 30 months

based upon S:ENTAC aggravating factors "_Fhe factors advanced by the State are prior

violent criminal conduct, repetitive criminal conduct,i and lack of amenability to lesser

sanction. Thereafter, defense argued against the State’s position prior to sentencing When imposing the sentence, the Court indiq;ated that it was relying upon the aggravating factors in reaching its decision. The Court reviewediwith l,oper its finding based upon his prior record.

Thirdly, l,oper argues his attorney was ineffective inhis representation of g the defendant. "l`o prevail on an ineffective assistance of counsel allegation, defendant must demonstrate first that counsel’s performance was deficient, that such representation fell below an objective standard of reasonableness l\/lere allegations of ineffectiveness is not sufficient, the defendant must f setforth specific allegations of actual prejudice, and substantiate them. Furthermore,i defendant must demonstrate that the deficiencies prejudiced him by depriving him of his rights toa fair proceeding ln essence, Loper must demonstrate that there is _a reasonable probability, that but for counsel’s unprofessional errors, the result of the proceeding would have been different. lmra a ]@i.¢,», 2014 wi,2i19703 (Dei super.)

The Court when sentencing Loper stated it was relying upon the statutory

aggravating factors, and these factors justified the sentence imposed. Therefore, a

review of the record indicates there is no fair probability the results would be different Further,jLoper’s attorney urged the Court not to follow the State’s recommendation and raise mitigating factors

The record clearly reflects that Loper understood the consequences and potential sentence and consulted with his attorney during the course of the proceedings

Accordingly, based upon the foregoing, the motion is hereby Denied

so 0111)12111§1):111324“ day @rjtm@, 2014

Chief judge

Unique Loper-ORD june 2014

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