State v. Chamberlain

• Court: Superior Court of Delaware
• Decided: November 13, 2023
• Docket: 1605009503
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) Case # 1605009503 ) RICHARD M. CHAMBERLAIN, ) ) Defendant. )

ORDER Submitted: August 21, 2023 Decided: November 13, 2023

AND NOW TO WIT, this 13th day of November, 2023, upon

consideration of Richard M. Chamberlain (“Defendant”)’s Sixth Motion for

Modification of Sentence under Rule 35, the sentence imposed upon the

Defendant, and the record in this case, it appears to the Court that:

1. On September 6, 2016, Defendant pleaded guilty to Driving Under the

Influence (“DUI”) 7th Offense, Vehicular Assault First Degree, and two counts of

Vehicular Assault Second Degree.1 On November 4, 2016, he was sentenced to: for

the DUI 7th Offense, 15 years at Level V, suspended after 7 years, for partial

incarceration and probation; for Vehicular Assault First Degree, 3 years at Level V,

suspended after one year for 2 years at Level III; and for each Vehicular Assault

Second Degree charge, one year at Level V, suspended after 6 months for one year

1 D.I. 7. at Level III.2

2. Defendant has previously filed five Motions to Modify/Reduce his

Sentence under Superior Court Criminal Rule 35(b)3, which were all denied by this

Court.4 On June 20, 2023, Defendant filed this current Motion for Modification

asking the Court to suspend the remaining 5 months of Level IV Work Release, and

instead be placed on Level III probation and TASC.5 In support, he states that: (1)

while at Level IV, he is unable to return to his employment with the International

Brotherhood of Electrical Workers (IBEW); (2) if permitted to return to IBEW, he

can fulfill child support obligations; (3) the Deputy Warden at his Level IV

placement is retaliating against him due to past litigation and a settlement against a

former correctional officer; and (4) he is “self-sufficient without the need for work

release,” and Level IV is serving to hinder his ability to succeed.6

3. On August 18, 2023, the State filed its response in opposition, namely

that Defendant’s request is procedurally barred.7 The State is correct.

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

sentence of imprisonment on a motion made within ninety days after the sentence is

2 D.I. 15. 3 D.I. 17; D.I. 20; D.I. 26; D.I. 29; D.I. 31. 4 D.I. 18; D.I. 22; D.I. 28; D.I. 30; D.I. 32. 5 D.I. 33. 6 D.I. 33. 7 D.I. 35. 2 imposed.8 Defendant is time-barred. To overcome the time bar, he must show that

“extraordinary circumstances”9 forgive the tardiness of his Motion.10 His grounds

for relief do not constitute extraordinary circumstances under Rule 35(b).

5. Morevoer, “[t]he Court will not consider repetitive requests for

reduction of sentence.”11 A motion is considered repetitive when it “is preceded by

an earlier Rule 35(b) motion, even if the subsequent motion raises new arguments.”12

This is Defendant’s sixth motion.13 Defendant’s request is barred as repetitive. Rule

35 does not allow the Court to use its discretion to ignore this bar. 14

6. Defendant’s Motion for Modification of Sentence is SUMMARILY

DISMISSED.

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

oc: Prothonotary cc: Defendant Barzilai K. Axelrod, Department of Justice Investigative Services Office

8 Del. Super. Ct. Crim. R. 35(b). 9 The Delaware Supreme Court has defined “extraordinary circumstances” as circumstances 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. Diaz, 113 A.3d 1081, 2015 WL 1741768, at *2 (Del. 2015) (TABLE) (quoting State v. Lewis, 797 A.2d 1198, 1203, 1205 (Del. 2002) (Steele, C.J., dissenting)). 10 See Colon v. State, 900 A.2d 635, 638 (Del. 2006) (citations omitted). 11 Del. Super. Ct. Crim. R. 35(b). 12 State v. Culp, 152 A.3d 141, 144 (Del. 2016). 13 See D.I. 17; D.I. 20; D.I. 26; D.I. 29; D.I. 31. 14 Culp, 152 A.3d at 145 (reversing the Superior Court’s decision to grant the defendant’s motion for modification where the motion was repetitive and untimely). 3