State v. Byrd

• Court: Superior Court of Delaware
• Decided: September 25, 2023
• Docket: 1606018393
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) ID No. 1606018393 ) KYSHEEM BYRD, ) ) Defendant. ) )

Date Submitted: July 31, 2023 Date Decided: September 25, 2023

ORDER

Upon consideration of Defendant Kysheem Byrd’s “Motion for Sentence

Modification” (“Motion”), Superior Court Criminal Rule 35(b)1, statutory and

decisional law, and the record in this case, IT APPEARS THAT:

(1) On November 9, 2017, Byrd pled guilty to one count of Home Invasion,

one count of Possession of a Firearm During the Commission of a Felony

(“PFDCF”), and one count of Conspiracy in the Second Degree (“Conspiracy

Second Degree”).2 For the Home Invasion, effective June 23, 2016, Byrd was

sentenced to 6 years of unsuspended Level V time.3 For the PFDCF, Byrd was

sentenced to 3 years unsuspended Level V time.4 And for the Conspiracy Second

1 See Super. Ct. Crim. R. 35(b). 2 D.I. 36. 3 Byrd’s sentence for the Home Invasion is as follows: 17 years at Level V supervision, suspended after 6 years at supervision Level V for 6 months supervision Level IV, followed by 1 year at supervision Level III. Id. 4 Id. Degree, Byrd was sentenced to 6 months at Level III probation.5

(2) On July 14, 2023, Byrd filed the instant Motion seeking modification

of his sentence pursuant to Rule 35(b).6 He asks the Court to discharge the remainder

of his Level IV and Level III sentence “in the interest of ensuring Movant[’]s

continued fluid and positive momentum.”7 In the alternative, he requests a transfer

to Pennsylvania to serve the remainder of his sentence.8 In support of his Motion,

Byrd cites his detainer in his Pennsylvania home in which he has a 3-6 year sentence

remaining, his support system in Pennsylvania, and his model behavior and

productivity while incarcerated.9

(3) The State filed its Response to Byrd’s Motion on July 31, 2023,

opposing modification.10 The State claims Byrd’s Motion is time-barred and raises

no grounds for the imposition of an illegal sentence.11 The State maintains should

the Court find Byrd’s Motion is not time-barred, then the Court would be statutorily

5 Byrd’s sentence for the Conspiracy Second Degree is as follows: 2 years at supervision Level V, suspended for 6 months at Level III. Level III probation on the Conspiracy Second Degree was to run concurrent with his Level III probation under his Home Invasion charge. Id. 6 D.I. 41. 7 Id. 8 Id. The State addressed Byrd’s request for transfer in their response and stated Pennsylvania will not process a request for transfer until Byrd is released from incarceration on probation. In his Motion, Byrd maintains his release from incarceration at Level V supervision was to take place on August 4, 2023. His subsequent release occurred after the State submitted their response. At the time of this Order, Byrd has since been released from Level V supervision in Delaware and was transferred to Pennsylvania. Therefore, Byrd’s plea of transfer to Pennsylvania is rendered moot. 9 Id. 10 D.I. 43. 11 Id.

2 barred from removing all Level IV and Level III time pursuant to 11 Del. C. §

4204(l).12 The statute imposes the minimum custodial supervision time when Level

V custody totals 1 year or more.13

(4) Rule 35(b) governs motions for modification or reduction of sentence.14

“Under Rule 35(b), a motion for sentence modification must be filed within 90 days

of sentencing, absent a showing of ‘extraordinary circumstances.’” 15 Rule 35(b) also

mandates that “[t]he [C]ourt will not consider repetitive requests for reduction of

sentence.”16 “[T]his bar is absolute and flatly ‘prohibits repetitive requests for

reduction of sentence.’”17

(5) Byrd’s Motion is procedurally barred as untimely and repetitive.18

(6) Byrd was sentenced on November 9, 2017, and filed the instant Motion

on July 14, 2023, well outside the 90-day filing deadline.19 The Court does not find

Byrd’s arguments pertaining to his good behavior and familial connection to

12 Id. 13 Id.; see also 11 Del. C. § 4204(l). 14 Super. Ct. Crim. R. 35(b). 15 Croll v. State, 2020 WL 1909193, at *1 (Del. Apr. 17, 2020) (TABLE) (affirming the Superior Court’s denial of a motion for modification of sentence where the motion was repetitive and filed beyond the 90-day limit). 16 Super. Ct. Crim. R. 35(b) (emphasis added). 17 State v. Redden, 111 A.3d 602, 609 (Del. Super. 2015) (quoting Thomas v. State, 2002 WL 31681804, at *1 (Del. Nov. 25, 2002)). 18 See Super. Ct. Crim. R. 35(b). 19 D.I. 36, 41.

3 Pennsylvania sufficient to establish an extraordinary circumstances exception.20

Therefore, the 90-day deadline will not be extended.

(7) Further, Byrd filed his first Motion for Sentence Reduction and

Modification on February 26, 2018.21 On April 19, 2018, the Court denied his

request.22 On January 24, 2020, Byrd filed his second Motion for Modification23

which was denied as repetitive on February 6, 2020.24

(8) Pursuant to Rule 35(b), the Court finds Byrd’s third Motion for

Modification repetitive, and thus barred under Rule 35(b).25

(9) Because the Motion is untimely and repetitive, the State’s argument that

the Court is statutorily barred from discharging Byrd’s minimal custodial

supervision time imposed by 11 Del. C. § 4204(l) need not be addressed.26

NOW, THEREFORE, IT IS HEREBY ORDERED that Kysheem Byrd’s

Motion for Sentence Modification is DENIED.

/s/ Jan R. Jurden Jan R. Jurden, President Judge

20 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 imposition of a sentence”). 21 D.I. 37. 22 D.I. 38. 23 D.I. 39. 24 D.I. 40; see also Super. Ct. Crim. R. 35(b). 25 Super. Ct. Crim. R. 35(b). 26 11 Del. C. § 4204(l).

4 Original to Prothonotary

cc: Kysheem Byrd, Defendant Matthew Hicks, DAG