State v. Gordon

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ) I.D. No. 2005005984 AKIM GORDON, ) ) Defendant. )

ORDER

Submitted: April 5, 2023 Decided: May 15, 2023

AND NOW TO WIT, this 15th day of May 2023, upon consideration of

Akim Gordon (“Defendant”)’s Motion for Modification/Reduction 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 March 28, 2022, Defendant pled guilty to Drug Dealing Cocaine

and Conspiracy Second Degree.1 For the former charge, Defendant was sentenced

to five years at Level V, suspended after two years, for transitioning levels of

probation, and for the Conspiracy, he received a suspended Level V sentence to one

year at Level III.2

2. On October 3, 2022, Defendant filed his first Rule 35 motion asking the

1 D.I. 10. 2 D.I. 11. Court to place him in a DOC program to address his drug addiction.3 This motion

was denied.4

3. This second Rule 35 Motion asks that this Court reduce his remaining

Level V sentence after he completes “Track 1 of the R2R Program” so that he can

support his family affected by his grandmother’s recent death.5

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

imposed.6 Defendant remains time barred. To overcome the time bar, he must show

that “extraordinary circumstances”7 forgive the tardiness of his Motion.8 The sole

basis for his request to support his family does not constitute extraordinary

circumstances.

5. Further, “[t]he court will not consider repetitive requests for reduction

of sentence.”9 A motion is considered repetitive when it “is preceded by an earlier

Rule 35(b) motion, even if the subsequent motion raises new arguments.”10 He

3 D.I. 12. 4 D.I. 13. 5 D.I. 14. 6 Del. Super. Ct. Crim. R. 35(b). 7 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)). 8 See Colon v. State, 900 A.2d 635, 638 (Del. 2006) (citations omitted). 9 Del. Super. Ct. Crim. R. 35(b). 10 State v. Culp, 152 A.3d 141, 144 (Del. 2016). 2 previously filed in October of 2022.11 Thus, Defendant’s request is barred as

repetitive. Rule 35 does not allow the Court to use its discretion to ignore this bar.12

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

DISMISSED.

IT IS SO ORDERED.

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

oc: Prothonotary cc: Defendant Department of Justice Investigative Services Office

11 D.I. 12. 12 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