State v. Dunlap

• Court: Superior Court of Delaware
• Decided: January 25, 2021
• Docket: 1710003110
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) I.D. No. 1710003110 ) RANDY DUNLAP, ) ) Defendant. )

Date Submitted: December 21, 2020 Date Decided: January 25, 2021

ORDER

Upon consideration of Defendant’s Motion for Modification of Sentence (the

“Motion”),1 the State’s response, Superior Court Criminal Rule 35, statutory and

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

1. On August 26, 2019, Defendant pled guilty to one count of aggravated

menacing and one count of terroristic threatening.2 On September 26, 2019,

Defendant was sentenced as follows: for aggravated menacing, 5 years at Level V,

with credit for 221 days previously served, suspended after 18 months at Level V,

for 6 months at Level IV (Work Release), followed by 1 year at Level III; and for

terroristic threatening, 10 months at Level V.3

1 D.I. 23. Unless otherwise noted, docket item citations refer to I.D. No. 1710003110. 2 D.I. 15. On the same day, Defendant also pled guilty to one count of harassment in a separate criminal case. I.D. No. 1710007429, D.I. 18. The Court need not discuss that case, however, because Defendant’s motion does not ask the Court to modify the sentence imposed in it. 3 D.I. 18. On the same day, Defendant received a sentence for his harassment offense in the other criminal case. I.D. No. 1710007429, D.I. 20. 2. On February 27, 2020, Defendant filed a Motion for Modification of

Sentence, which the Court denied on April 21, 2020.4 On June 12, 2020, Defendant

filed a second Motion for Modification of Sentence, and, on June 25, 2020, the Court

denied that motion as well.5

3. On November 23, 2020, Defendant filed a third Motion for

Modification of Sentence—the instant Motion.6 In this Motion, Defendant writes

that in February 2021, he will begin serving the Level IV (Work Release) portion of

his sentence.7 He asks the Court to modify that portion to Level IV (Home

Confinement) with GPS monitoring.8 In support, Defendant explains that this

modification would allow him to work, pay his restitution, and maintain his mental

health treatment.9

4. On December 21, 2020, the State filed a response to the instant

Motion.10 The State argues that the Court should deny Defendant’s Motion pursuant

to Superior Court Criminal Rule 35(b).11 First, the State notes that Rule 35(b)

forbids the Court from considering repetitive motions.12 The State also argues that

4 D.I. 19–20. 5 D.I. 21–22. 6 D.I. 23. 7 Id. 8 Id. 9 Id. 10 D.I. 25. 11 Id. 12 Id. 2 Defendant’s Motion is time barred because it was filed more than 90 days after

Defendant’s sentence was imposed and does not meet either exception to the time

bar.13 Lastly, the State contends that Defendant will be able to work and make

payments toward his restitution on Level IV (Work Release), so these reasons do not

warrant modifying Defendant’s sentence.14

5. Superior Court Criminal Rule 35(b) governs the modification and

reduction of sentences.15 Pursuant to Rule 35(b), a motion to modify a sentence of

imprisonment must be filed no later than 90 days after the sentence is imposed.16

That time bar does not apply here, however, because Defendant has not asked the

Court to modify the Level V portion of his sentence.

6. Nonetheless, the Court must deny Defendant’s Motion because it is

repetitive. Rule 35(b) prohibits the Court from considering “repetitive requests for

reduction of sentence.”17 A motion is repetitive when it is “preceded by an earlier

Rule 35(b) motion, even if the subsequent motion raises new arguments.”18 As noted

13 Id. See Super. Ct. R. 35(b) (“The court will consider an application made more than 90 days after the imposition of sentence only in extraordinary circumstances or pursuant to 11 Del. C. § 4217.”). 14 D.I. 25. 15 Super. Ct. R. 35(b). 16 Id. 17 Id. 17 Super. Ct. R. 35(b). 18 State v. Culp, 152 A.3d 141, 144 (Del. 2016). 3 above, Defendant has twice sought to modify the sentence imposed in this case.19

Accordingly, the instant Motion is barred as repetitive.

7. The Court finds that Defendant’s sentence is appropriate for all of the

reasons stated at the time of sentencing. No additional information has been

provided to the Court that would warrant a modification of Defendant’s sentence.

NOW, THEREFORE, IT IS ORDERED that Defendant’s Motion for

Modification of Sentence is DENIED.

Jan R. Jurden Jan R. Jurden, President Judge

Original to Prothonotary

cc: Randy Dunlap (SBI# 00180136) Anna E. Currier (DAG)

19 D.I. 19, 21. 4