State v. Gomez

• Court: Superior Court of Delaware
• Decided: September 27, 2022
• Docket: 0607012785
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ) I.D. No. 0607012785 LEONARDO GOMEZ, ) Defendant. )

ORDER

On Defendant’s Motion for Modification of Sentence – DENIED

Filed: September 3, 2022 Decided: September 27, 2022

James Kriner, Esquire, Deputy Attorney General, for the State of Delaware

Leonardo Gomez, pro se

BRENNAN, J. Before the Court is Defendant’s Motion for Modification of Sentence

pursuant to Superior Court Criminal Rule 35, dated September 3, 2022. Defendant

was sentenced on February 1, 2008, for the charge of Murder 2nd Degree to a period

of eighteen (18) years at Level V to be suspended after serving fifteen (15) years for

three (3) years at Level IV Home Confinement or Work Release, which is to be

suspended after six (6) months for two (2) years supervision Level III, effective July

19, 2006.1 On February 26, 2021, the Court received a letter from the Department

of Corrections regarding a detainer lodged against Defendant by the Department of

Homeland Security. This letter did not include a request for modification, nor was

one made by Defendant immediately following. Accordingly, this letter was noted

and placed upon the criminal docket in this criminal action as it did not constitute a

request under 11 Del. C. § 4217.2

The instant motion for modification is, therefore, the first such motion filed in

this case. Defendant now moves the Court to modify his sentence to eliminate the

remaining 150 days of Level V so that he can be placed in the custody of

Immigration and Customs Enforcement (hereinafter “ICE”) for deportation back to

his home county of Mexico. The State opposes this motion.

1 D.I. 29. 2 D.I. 30. Rule 35(b) provides that the Court, “may reduce a sentence of imprisonment

on a motion made within 90 days after the sentence is imposed.” 3 Defendant filed

his motion well after 90 days from the date of his sentence and is time-barred. The

Court will only consider such an application made after this 90 day time period upon

a showing of “extraordinary circumstances” by Defendant.4

Defendant argues in support of his motion that, “[t]he court has prior granted

a defendant modification of their sentences because of deportation issues under the

extraordinary circumstances clause of … Rule 35.”5 While Defendant cites no legal

authority in support of his assertion, both the State’s response and the Court’s own

research revealed that in previous cases before this Court, the potential for

deportation has acted as a factor in favor of sentence modification and reduction of

Level V time. However, this was only true in where a defendant requested a

modification to avoid deportation. That is not the situation here. In fact, the situation

is the opposite. Defendant wishes to avoid completing his Level V sentence so that

he can expedite his own deportation to his home country, without any assurances to

the Court that any sort of supervision over Defendant would occur.

In determining whether extraordinary circumstances exist to circumvent the

procedural bar of Rule 35 where a defendant is facing potential deportation, the

3 SUPER. CT. CRIM. R 35(b). 4 Super. Ct. Crim. R. 35(b); Fenimore v. State, 839 A.2d 665 (Del. 2003). 5 Defendant’s Motion for Modification of Sentence Court may weigh varying factors. These factors include, but are not limited to: 1)

the nature of the initial sentence, 2) the time the defendant has spent incarcerated, 3)

possible deportation of the defendant and 4) the hardships on innocent third parties

should a defendant be deported due to his or her sentence.6 The Court has weighed

these factors and determined they do not favor Defendant.

In weighing the relevant factors, the Court first turns to the nature of the initial

offense: one of the most serious crimes in the criminal code, the reckless killing of

another under circumstances which manifested a cruel, wicked and depraved

indifference to human life.7 This factor weights against modification. Further,

while Defendant has served all but roughly 150 days of his Level V sentence, in

comparison to the nature of the charges and the fact that Defendant is the one seeking

to expedite his own deportation, the Court does not find this rises to the level of

extraordinary circumstances justifying the relief sought.8 Defendant has not

6 See State v. Lewis, 2000 WL 33113932, at *3 (Del. Super. Oct. 27, 2000), State v. Laboy, 2003 WL 21517974, at *2 (Del. Super. July 1, 2003) and State v. Johnson, 2006 WL 32849 (Del. Super. Dec. 7, 2006). 7 11 Del. C. § 635(1). 8 C.f. State v. Culp, 152 A.3d 141 (Del. 2016) (rehabilitative efforts while incarcerated insufficient to qualify as extraordinary circumstances), State v. DeRoche, 2003 WL 22293654, at *3 (Del. Super. Aug. 29, 2003) (granting the defendant's motion for reduction of sentence due to Department of Correction’s failure to give adequate medical care as an “extraordinary circumstance”); Briddell v. State, 810 A.2d 349 (Del. 2002) (upholding a denial of a reduction of sentence where defendant failed to meet his burden under extraordinary circumstances for failing to provide support for claims provided the Court with any basis for a finding in his favor with respect to the

remaining factors, nor has he given the Court any reason whatsoever to suspend his

remaining Level V time other than by simply stating he wishes to be placed in ICE

custody. The Court finds the reasoning for this request insufficient. As such,

defendant has failed to meet his heavy burden to show how this reason for

modification rises to the level of extraordinary circumstances. Consequently,

Defendant’s Motion for Modification of Sentence is DENIED.

IT IS SO ORDERED, this 27th day of September, 2022.

/s/ Danielle J. Brennan _________________________ Danielle J. Brennan, Judge

that the Department of Corrections did not meet his medical needs), and State v. Lewis, 2000 WL 33113932 at *2 (finding extraordinary circumstances existed, in part, due to the nature of the original sentence was to provide for a long probationary period).