State v. Gale

• Court: Superior Court of Delaware
• Decided: September 20, 2022
• Docket: 1702011402
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ) I.D. No. 1702011402 ) KEVIN T. GALE, ) ) Defendant. )

ORDER

Submitted: August 30, 2022 Decided: September 20, 2022

AND NOW TO WIT, this 20th day of September, 2022, upon consideration of

Defendant’s Motion for Reduction/Modification of Sentence, the sentence imposed

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

1. On July 10, 2017, Defendant pled guilty to Possession of a Firearm

by a Person Prohibited (“PFPP”) and Possession of Ammunition by a Person

Prohibited (“PAPP”). 1 On July 17, 2017, the State filed a Motion to Declare

Defendant a Habitual Offender.2 On August 25, 2017, Defendant was sentenced as

a habitual offender to a total of fifteen years and six months at Level V, suspended

after seven years and six months of minimum mandatory imprisonment, followed

by eighteen months at Level III. 3 In an unrelated matter in March 2017, the late J.

1 Final Case Review: Pled Guilty. PSI Ordered, D.I. 12. 2 State's Motion to Declare Defendant a Habitual Offender, D.I. 16. 3 Sentence: ASOP Order Signed and Filed, D.I. 18

1 Parkins had imposed four months of prison under 11 Del. C. 4204(k) on a violation

of probation (VOP). 4

2. Defendant has filed several motions for modification of his sentence

under Delaware Superior Court Criminal Rule 35(b).5 The first motion was filed

November 16, 2017.6 That request was denied. 7 The second filed on November 18,

2019,8 was also denied. 9 And a third request was summarily dismissed on

November 10, 2021.10

3. In this newest motion, Defendant asks that his minimum mandatory

sentence in this matter be permitted to run concurrently the VOP sentence imposed

in 2017. Like prior requests for reduction/modification, the bases of this motion are

that he has “completed numerous programs…obtained a high school diploma…and

has not received any class 1 or 2 infractions….” 11

4. Defendant is again reminded that under Superior Court Criminal Rule

35(b) “[t]he court will not consider repetitive requests for reduction of sentence.”12

4 Sentence: ASOP Order Signed and Filed, Crim. ID No. 1505015376, D.I. 46. 5 Del. Super. Ct. Crim. R. 35(B). 6 See Motion for Reduction/Modification of Sentence, D.I. 19. 7 See Motion for Modification/Reduction of Sentence Denied, D.I. 20 8 See Motion for Sentence Reduction/Modification of Sentence, D.I. 22. 9 See Motion for Modification of Sentence Denied, D.I. 23. 10 D.I. 25. 11 Motion for Modification of Sentence, D.I. 26. 12 Del. Super. Ct. Crim. R. 35(b) (emphasis added).

2 This motion is considered repetitive as preceded by an earlier Rule 35(b) motion.13

The bar to repetitive motions has no exception. It is absolute and flatly “prohibits

repetitive requests for reduction of sentence.” 14 Therefore, where Defendant has

previously submitted a Motion for Modification,15 and where such motion was

denied,16 this motion is also barred as repetitive. 17 The Court cannot use its

discretion to ignore this bar.18

IT IS SO ORDERED that Defendant’s Motion for Modification of Sentence is

SUMMARILY DISMISSED.

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

oc: Prothonotary cc: Defendant Erika Flaschner, Esquire, Deputy Attorney General Investigative Services

13 State v. Culp, 152 A.3d 141, 144 (Del. 2016). 14 Thomas v. State, 812 A.2d 900, 2002 WL 31681804, at *1 (Del. 2002) (TABLE); see also Jenkins v. State, 954 A.2d 910, 2008 WL 2721536, at *1 (Del. 2008) (TABLE) (affirming the Superior Court’s denial of defendant’s Rule 35(b) motion for modification where Rule 35(b) “prohibits the filing of repetitive sentence reduction motions.”); Morrison v. State, 846 A.2d 238, 2004 WL 716773, at *2 (Del. 2004) (TABLE) (finding that defendant’s Rule 35(b) motion for modification “was repetitive, which also precluded its consideration by the Superior Court.”). 15 See Motion for Reduction/Modification of Sentence, D.I. 19; Motion for Sentence Reduction/Modification of Sentence, D.I. 22. 16 D.I. 20; D.I. 23; D.I. 25. 17 Even if not repetitive, the Motion would have been denied where this Court reviewed the sentence imposed on August 25, 2017, and confirmed with the State and defense counsel that all prison time was to run consecutive. 18 Culp, 152 A.3d at 145 (reversing the Superior Court’s decision to grant defendant’s Motion for Modification where the motion was repetitive and untimely).