State v. Bolling

• Court: Superior Court of Delaware
• Decided: June 14, 2021
• Docket: 1607011243
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ID No. 1607011243 ) AARON L. BOLLING, ) Defendant. )

Submitted: May 5, 2021 Decided: June 14, 2021

ORDER DENYING MOTION TO REDUCE AND MODIFY SENTENCE

This 14th day of June, 2021, upon consideration of the Defendant’s Motion

for Sentence Reduction and Modification (D.I. 16),1 the State’s response thereto

(D.I. 18), the Defendant’s Reply and supplement (D.I. 19 and 20), and the record in

this matter, it appears to the Court that:

(1) In February 2017, Aaron L. Bolling, pleaded guilty to one count of first

degree robbery and one count of second degree conspiracy in exchange for dismissal

1 Mr. Bolling captions his application a “Modification, Deferral, Suspension or Reduction of Sentence for Serious Physical Illness, Injury or Infirmity.” D.I. 16. Therein, he cites various constitutional provisions, state statutes, and cases. Id. But, at bottom, he appears to recognize that this motion is governed by Superior Court Criminal Rule 35(b). See Def. Repl., at 3 (D.I. 19) (citing Rule 35(b) and its “extraordinary circumstance” exception); see also Super. Ct. Crim. R. 35(b) (Super. Ct. Crim. R. 35(b) (providing that, under certain conditions, the Court may reduce a sentence of imprisonment on an inmate’s motion; providing also that the Court may reduce a term or the conditions of partial confinement or probation); and Jones v. State, 2003 WL 21210348, at *1 (Del. May 22, 2003) (“There is no separate procedure, other than that which is provided under Superior Court Criminal Rule 35, to reduce or modify a sentence.”).

-1- of the other indicted charges and the State’s capped sentencing recommendation.2

Thereafter, on April 25, 2017, he was sentenced as follows: (a) for Robbery First

Degree—15 years at Level V suspended after serving six years at Level V for nine

years at Level IV-DOC Discretion, suspended after serving six months at Level IV

for two years of supervised probation; and (b) for Conspiracy Second Degree—one

year Level V suspended in whole for a concurrent probated term.3 The effective

date of Mr. Bolling’s sentence is October 5, 2016.4

(2) Mr. Bolling filed no direct appeal from his convictions or sentence.

(3) Instead, within a month of his sentencing, Mr. Bolling (with the

assistance of his plea counsel) filed an application under Superior Court Criminal

Rule 35(b) requesting that the Court “simply acknowledge this Motion as Defendant

Bolling’s request to present a more thorough Motion for Modification, at some point

in the future.”5 Put another way, Mr. Bolling was asking that the Court deem that

reduction motion timely, hold it in abeyance, and consider reducing his term of

imprisonment at some unspecified future date after he might have a “chance to prove

2 Plea Agreement, State v. Aaron L. Bolling, I.D. No. 1607011243 (Del. Super. Ct. Feb. 20, 2017) (D.I. 9). 3 Sentence Order, State v. Aaron L. Bolling, I.D. No. 1607011243 (Del. Super. Ct. Apr. 25, 2017) (D.I. 13). 4 Id. at 1. 5 Def. 1st Rule 35(b) Mot., at 2 (D.I. 14).

-2- [him]self, as a model inmate, and/or take advantage of any rehabilitative tools and

programs, offered by the Department of Corrections.”6 Because the Court will not

accept filing of a timely Rule 35(b) motion as a “placeholder” or “bookmark” for the

Court to retain and exercise jurisdiction over the life of an inmate’s sentence, Mr.

Bolling’s May 2017 motion was denied.7

(4) Mr. Bolling has now filed a second Rule 35(b) motion.8 He essentially

requests the Court to reduce his Level V term to time-served9 and argues the Court

should grant this Level V reduction now due to “extraordinary circumstances”

brought on by the COVID-19 pandemic.10 Mr. Bolling asks the Court to also modify

6 Id. 7 D.I. 15 (citing State v. Tollis, 126 A.3d 1117, 1121, 1124 (Del. Super. Ct. 2016), which held that “this Court’s two distinct sources of sentence reduction or modification authority (i.e., its statutory authority and its inherent authority) [do not] fashion some form of judicially-supervised parole.”). 8 Def. 2nd Rule 35(b) Mot., Repl., and Supp. (D.I. 16, 19-20). In the first of his recent filings, Mr. Bolling seeks to invoke the Court’s “inherent authority” over its sentencing judgments. Def. 2nd Rule 35(b) Mot., at 8 (D.I. 16). As this Court recently explained when addressing another of these cookie-cutter applications by a different inmate, “none of the conditions [that] might allow the Court its rare exercise of its inherent authority to modify a sentencing judgment are present here.” State v. Dickerson, 2021 WL 2285238, at *2 n.15 (Del. Super. Ct. June 4, 2021). Too, Mr. Bolling’s resort to 11 Del. C. § 4221 is unvailing; his sentence is well over a year in duration. See White v. State, 2021 WL 1828069, at *1 (Del. May 6, 2021) (Holding, when disposing of another inmate’s same argument, that “Section 4221 does not apply to [inmates’] sentence because that statute, among other things, only applies to minimum or mandatory sentences of one year or less.”). 9 Def. 2nd Rule 35(b) Mot., at 10; Def. Repl., at 3 (D.I. 19). 10 Def. 2nd Rule 35(b) Mot.; Def. Repl., at 2.

-3- his Level IV term.11 He wants the Court to now expressly designate that him

imposed Level IV term be served on home confinement.12

(5) According to Mr. Bolling, his immediate release from prison is

appropriate because his continued incarceration during the current pandemic

amounts to cruel and unusual punishment violative of the Eighth Amendment.13 And

the Court should remove the Department of Correction (DOC)’s discretion to

determine his Level IV placement, Mr. Bolling says, because he believes: (a) the

DOC would leave him at Level V instead of sending him to work release; 14 and (b)

“it would be more beneficial for [him] to complete [my] Level 4 term on house

arrest” in a stable home environment.15

(6) First, Mr. Bolling’s cruel and unusual punishment argument rests on

Eighth Amendment cases that involved civil litigation, not modification of a

defendant’s criminal sentence. As such, his Eighth Amendment claim simply does

11 Def. 2nd Rule 35(b) Mot., at 9. 12 Id.; Def. Supp., at 1 (D.I. 20). 13 Def. 2nd Rule 35(b) Mot., at 1-5; Def. Repl. 14 Def. 2nd Rule 35(b) Mot., at 9. 15 Def. Supp., at 1.

-4- not support the relief Mr. Bolling seeks.16 So, the Court must consider Mr. Bolling’s

request under Criminal Rule 35(b) rather than under the Eighth Amendment.17

(7) The Court may consider a Rule 35(b) motion “without presentation,

hearing or argument.”18 The Court will decide his motion on the papers filed and

the complete record in Mr. Bollng’s case.

(8) When considering motions for sentence reduction or modification, this

Court addresses any applicable procedural bars before turning to the merits.19

(9) “Rule 35(b) requires that an application to reduce imprisonment be

filed promptly—i.e. within 90 days of the sentence’s imposition—‘otherwise, the

Court loses jurisdiction’ to act thereon.”20 An exception to this bar exists: to

overcome the 90-day time limitation, an inmate seeking to reduce a sentence of

imprisonment on his own motion must demonstrate “extraordinary

16 Woods v. State, 2021 WL 304007, at *1 (Del. Jan. 28, 2021); White, 2021 WL 1828069, at *1. 17 Woods, 2021 WL 304007, at *1; Dickerson, 2021 WL 2285238, at *2. 18 Super. Ct. Crim. R. 35(b). 19 State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015). 20 Redden, 111 A.3d at 607 (internal citations omitted).

-5- circumstances.”21 A heavy burden is placed on the inmate to establish

“extraordinary circumstances” in order to uphold the finality of sentences.22

(10) The term “extraordinary circumstances” is generally defined as “[a]

highly unusual set of facts that are not commonly associated with a particular thing

or event.”23 “And for the purposes of Rule 35(b), ‘extraordinary circumstances’

have been found only ‘when an offender faces some genuinely compelling change

in circumstances that makes a resentencing urgent.’”24 In short, Rule 35(b) is a rule

limited to reconsideration and altering of a sentence after the 90-day motion

deadline “only when there is a truly compelling change in that inmate’s individual

circumstances that presents an urgent need for revision of the sentence’s terms.”25

(11) Mr. Bolling filed this motion almost four years after he was sentenced.

21 Sample v. State, 2012 WL 193761, at *1 (Del. Jan. 23, 2012) (“Under Rule 35(b), the Superior Court only has discretion to reduce a sentence upon motion made within 90 days of the imposition of sentence, unless ‘extraordinary circumstances’ are shown.”) (emphasis added). 22 State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015) (“In order to uphold the finality of judgments, a heavy burden is placed on the defendant to prove extraordinary circumstances when a Rule 35 motion is filed outside of ninety days of the imposition of a sentence.”).

23 Diaz, 2015 WL 1741768, at *2 (citing BLACK’S LAW DICTIONARY (10th ed. 2014)); id. (Observing also that, in the Rule 35(b) context, “‘extraordinary circumstances’ are those which ‘specifically justify the delay;’ are ‘entirely beyond a petitioner’s control;’ and ‘have prevented the applicant from seeking the remedy on a timely basis.’”); State v. Remedio, 108 A.3d 326, 332 (Del. Super. Ct. 2014). 24 State v. Thomas, 220 A.3d 257, 262 (Del. Super. Ct. 2019) (quoting Fountain v. State, 139 A.3d 837, 842 n.20 (Del. 2016)). 25 Id.

-6- To the extent he is arguing that conditions of his confinement and potential exposure

to COVID-19 constitute “extraordinary circumstances” under Rule 35(b), they do

not.26 Rather, as this Court and the Delaware Supreme Court have instructed others

who have raised COVID-19 concerns: “[S]hould Mr. [Bolling]’s specific individual

medical circumstance warrant sentence reduction, then the proper vehicle to deliver

such relief is an application by the Department of Correction under 11 Del. C. §

4217.”27

(12) Mr. Bolling’s failure to meet Rule 35’s “extraordinary circumstance”

criterion prohibits this Court from considering his time-barred prayer for reduction

of his Level V term.

(13) As to Mr. Bolling’s accompanying request to modify the Level IV term

imposed, this is a first application for modification of his term of partial confinement

or probation. So, there are no bars to consideration of that prayer under Rule 35(b).28

26 State v. Jones, 2020 WL 4483673, at *2 (Del. Super. Ct. Aug. 4, 2020) (citing State v. Lindsey, 2020 WL 4038015, at *2 (Del. Super. Ct. July 17, 2020) (collecting cases)). 27 Lindsey, 2020 WL 4038015, at *3; Jones v. State, 2021 WL 1590188, at *2 (Del. Apr. 22, 2021) (“As to COVID-19, an application by DOC under §4217 is the proper vehicle for relief should Jones’s personal health warrant sentence modification.”); Williams v. State, 2020 WL 7311325, at *1 (Del. Dec. 10, 2020) (same); Johnson v. State, 2020 WL 5626231, at *2 (Del. Sept. 18, 2020) (same). 28 See Teat v. State, 2011 WL 4839042, at *1 (Del. Oct. 12, 2011) (finding this Court erred in holding that motion for modification of Level IV time was subject to ninety-day period but could be affirmed because motion was repetitive); State v. Bennett, 2015 WL 1746239, at *2 (Del. Super. Ct. Apr. 13, 2015) (bar to repetitive motions is applicable to requests for modification of a Level IV term of a sentence).

-7- (14) The Court has fully reviewed Mr. Bolling’s application, the State’s

response, the record of Mr. Bolling’s case, his prior supervision history, and all

sentencing information available. The Court finds that the Level IV term—i.e. a

period in a highly structured community-based supervision in a DOC-determined

setting complementary to the incarcerative term Mr. Bolling has served—is a

component of his sentence that is integral to the Court’s overall “sentencing scheme”

or “plan.”29

(15) After thorough review of the merits of this request, the Court finds its

original sentencing judgment regarding the Level IV component remains

appropriate. Mr. Bolling’s placement and program assignment for completion of his

Level IV term is a matter the Court has left to the DOC to determine given his

circumstances when he has finished the Level V portion of his sentence. The Court

has every confidence that the DOC will exert its best efforts to execute the Court’s

sentence as ordered—that is, determine an appropriate Level IV placement that

complements the other terms Mr. Bolling has served and the programs he has

completed. In turn, the Court will exercise its discretion30 under Rule 35(b) and

deny Mr. Bolling’s request to reduce or modify his Level IV term.

29 Defoe v. State, 750 A.2d 1200, 1202 (Del.2000). 30 Rondon v. State, 2008 WL 187964, at *1 (Del. Jan. 15, 2008) (“The merit of a sentence modification under Rule 35(b) is directed to the sound discretion of the Superior Court.”); Kiser v. State, 2010 WL 5141242, at *1 (Del. Dec. 10, 2010) (same for motion that seeks reduction or modification of partial confinement). -8- (16) NOW, THEREFORE, IT IS ORDERED that Mr. Bolling’s motion

for immediate termination of his Level V term must be DENIED because it is time-

barred. IT IS FURTHER ORDERED that Mr. Bolling’s motion for modification

of the Level IV term of his sentence is DENIED for the reasons set forth above.

Paul R. Wallace, Judge Original to Prothonotary cc: Mr. Aaron L. Bolling, pro se John S. Taylor, Deputy Attorney General Investigative Services Office

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