State v. Bowen

• Court: Superior Court of Delaware
• Decided: February 20, 2024
• Docket: 2105014420
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) ) v. ) I.D. No. 2105014420 ) ZACHERY BOWEN, ) ) Defendant. )

ORDER

Submitted: November 28, 2023 Decided: February 20, 2024

AND NOW TO WIT, this 20th day of February, 2024, upon consideration

of Zachery Bowen (“Defendant”)’s Motion for Modification of Sentence under

Superior Court Criminal Rule 35(b), the State’s response thereto, the sentence

imposed upon the Defendant, and the record in this case, it appears to the Court

that:

1. On August 31, 2021, Defendant was indicted on charges for Rape

First Degree and Sexual Abuse of a Child by a Person in a Position of Trust

Authority or Supervision in the First Degree.1 Defendant was reindicted in

September 2022.2 The nature of the offenses involves sexual acts committed by

Defendant and his co-defendant girlfriend against Defendant’s then four-year old

1 D.I. 1. 2 D.I. 13. son. This included at least one act of rape committed at the direction of and

videotaped by Defendant, simultaneously while he engaged in sexual intercourse

with his co-defendant.3

2. On April 5, 2023, Defendant pled guilty to Rape First Degree.4 The

Truth-In-Sentencing Guilty Plea Form signed by Defendant with the assistance

of counsel confirmed that the maximum penalty that Defendant faced was life

in prison with a minimum mandatory period of incarceration of twenty-five (25)

years.5 The State agreed to cap its recommendation of incarceration to thirty (30)

years.6

3. A presentence investigation (PSI) was ordered.7 Upon review of the

PSI, on August 11, 2023, the Court sentenced Defendant to a life sentence at

Level V, suspended after forty (40) years pursuant to 11 Del. C. § 4204(k)8, for

the balance to be served at transitioning levels of Level IV and Level III

probation.9

3 Defendant was charged federally for distribution and production of child pornography. 4 Case Review: Pled Guilty, D.I. 21. 5 Id. 6 Id. 7 Id. 8 11 Del. C. 4204(k)(1) provides: “Except as provided in this subsection, notwithstanding any statute, rule, regulation or guideline to the contrary, the court may direct as a condition to a sentence of imprisonment to be served at Level V or otherwise that all of a specified portion of said sentence shall be served without benefit of any form of early release, good time, furlough, work release, supervised custody or any other form of reduction or diminution of sentence.” 9 Sentence: Approved ASOP Order Signed and Filed, D.I. 22. 2 4. On November 8, 2023, Defendant, with the assistance of counsel, filed

this timely Motion for Modification of Sentence under Rule 35(b).10 Defendant asks

this Court to reconsider its sentence. Alternatively, he seeks to remove the “k”

portions of his sentence so that he may receive the benefit of earned good and merit

time.11

5. The basis of the request is that Defendant is already serving a federal

sentence of 262 months.12 He further asserts that his co-defendant13 received a ten-

year sentence.14

6. The State responded and noted that although the sentence exceeded the

State’s agreement to cap the Level V time, the Court articulated the reasons for its

sentence, memorialized the aggravators, and was “within its rights” to impose the

sentence it did.15 And that where Defendant executed plea paperwork with the

understanding that he was facing a life sentence such that this result was a possibility

at sentencing,16 the State takes no further position.17

7. Under Superior Court Criminal Rule 35(b), the Court may reduce a

10 D.I. 23. 11 Id. at ¶¶ 6-7. 12 Id. at ¶ 8. 13 Defendant’s co-defendant accepted a plea where she admitted that she engaged in committing sexual acts against Defendant’s son at the direction of Defendant. 14 Id. at ¶ 9. 15 D.I. 25 at ¶¶ 2-3. 16 Id. at ¶ 3. 17 Id. at ¶ 4. 3 sentence of imprisonment on a motion made within ninety days after the sentence is

imposed.18 “Rule 35(b) allows for a reduction of sentence without regard to the

existence of a legal defect.”19 Thus, relief under Rule 35(b) is within the sound

discretion of the Sentencing Court.20 Accordingly, a timely and non-repetitive Rule

35(b) motion is “essentially a ‘plea for leniency.’”21

8. This sentence was imposed pursuant to a Plea Agreement. After an

appropriate plea colloquy, the Court addressed Defendant in open court and

determined that Defendant understood the nature of the charge to which the plea was

offered. He fully acknowledged in open court that the range of possible penalties

included no less than twenty-five years and up to a maximum of life in prison. The

Court imposed a sentence within that range. Defendant further acknowledged that

no promises were made to him about what his sentence would be, that the State’s

recommendation to cap the sentence at thirty years was only a recommendation, and

that the Court was not bound to that recommendation.22

9. To the extent that the sentence exceeded the applicable SENTAC

guidelines, the Court articulated the aggravating factors that informed such

departure: a need for correctional treatment, the vulnerability of the victim, the

18 DEL. SUPER. CT. CRIM. R. 35(b) (emphasis added). 19 State v. Lewis, 797 A.2d 1198, 1201 (Del. 2002). 20 Id. 21 Id. at 1202 (quoting United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973)). 22 D.I. 21. 4 multiple roles Defendant played in orchestrating, committing, and creating

electronic images of the sexual offenses against his child, that they were committed

by a person in a position of trust, and that anything less than the period imposed

would unduly appreciate the nature of the offense of Rape First Degree.23

10. The Court further considered the victim’s family implorations that

Defendant’s sentence be lengthy for not only his conduct but to consider the resultant

damage, which remains unknown since the victim experiences nightmares, exhibits

behavioral issues, and continues to recall the events involving his father.

11. That Defendant is serving a federal sentence for similar crimes was

taken into consideration at the time of sentencing and does not now persuade this

Court to modify this sentence. Defendant is to serve his sentence without the benefit

of early release as authorized under Delaware law.

12. Defendant’s Motion for Modification of Sentence is DENIED.

/s/ Vivian L. Medinilla Vivian L. Medinilla Judge

oc: Prothonotary cc: Defendant Erika B. LaCon, Esquire Nicholas R. Wynn, Deputy Attorney General Investigative Services Office

23 See Sentencing Order, D.I. 22. 5