State v. Hester

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

)

v. ) ID Nos. 0912010604, ) 1002002758, CORNELL L HESTER, ) 1305016160 )

Defendant. )

)

Date Submitted: October 21, 2024 Date Decided: January 16, 2025

OMNIBUS ORDER

Upon consideration of Cornell Hester’s Motions for Sentence Modification,1 Delaware Superior Court Criminal Rule 35(b),2 statutory and decisional law, and the record, IT APPEARS THAT:

BACKGROUND

(1) Hester is currently incarcerated.3 Hester’s adjusted release date from Level V is February 21, 2025.4

1 Hester has filed multiple motions for sentence modification in multiple cases. For clarity of the record, the Court will refer to Hester’s Case Numbers by their last four digits. The motions resolved by this omnibus order are: Case No. 0604, D.I. 209. Case No. 0604, D.I. 210 (filed under seal). Case No. 0604, D.I. 211 (filed under seal); see also Case No. 2758, D.I. 101 (filed under seal). Case No. 2758, D.I. 102 (filed under seal). Case No. 6160, D.I. 17 (filed under seal). Case No. 0604, D.I. 219 (filed under seal); see also Case No. 2758, D.I. 109 (filed under seal). Case No. 6160, D.I. 19 (filed under seal). Case No. 0604, D.I. 223 (filed under seal); see also Case No. 2758, D.I. 110 (filed under seal). 2 Del. Super. Ct. Crim. R. 35(b). 3 See Exhibit A, Offender Status Sheet. 4 See Exhibit A, at 1.

(2) Once released from Level V, Hester is to serve Level IV time,5 followed by Level III time.6 (3) Hester has filed multiple motions for modification of sentence across his three cases. The Court now addresses all of Hester’s outstanding motions below.

MOTION TO SUSPEND (CASE NUMBER 0604, D.I. 209)

(4) On July 15, 2024, Hester filed a Motion to Suspend Remainder of Sentence (“Motion to Suspend”) requesting the Court to “suspend the remainder of [his] six-months . . .” Level V sentence.7 (5) On October 21, 2024, the State filed a response to Hester’s Motion to Suspend, arguing that Hester’s Motion to Suspend should be denied because it is procedurally barred as untimely.8 The Court agrees.

(6) Delaware Superior Court Criminal Rule 35(b) governs motions for modification of sentence.9 The purpose of Rule 35(b) is to “provide a reasonable period for the Court to consider alteration of its sentencing judgments.”10

5 Id., at 2-3. Hester was sentenced to one year of consecutive Level IV in Case Number 0604, Criminal Action Number IN10-02-0130-W. Id., at 3; see also Case No. 0604, D.I. 27. Hester was also sentenced to one year of concurrent Level IV in Case Number 1005001480 (consolidated into Case Number 2758), Criminal Action Number IN10-06-1490. Exhibit A, at 3; see also Case No. 2758, D.I. 87. 6 Exhibit A, at 4. Hester was sentenced to various amounts of Level III in the following cases: Case Numbers 6160, 1005001480 (consolidated into Case Number 2758), and 0604. Id.; see also Case No. 6160, D.I. 12; Case No. 2758, D.I. 87; Case No. 0604, D.I. 27. 7 Case No. 0604, D.I. 209, at 1. 8 Case No. 0604, D.I. 221, at 2. 9 Del. Super. Ct. Crim. R. 35(b). 10 State v. Remedio, 108 A.3d 326, 331 (Del. Super. 2014) (citing Johnson v. State, 234 A.2d 447, 448 (Del. 1967)).

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(7) Pursuant to Rule 35(b), “the [C]ourt may reduce a sentence of imprisonment on a motion made within 90 days after the sentence is imposed.”11 “The [C]ourt will consider an application made more than 90 days after the imposition of sentence only in extraordinary circumstances . . . .” 12 Extraordinary circumstances are “those 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.”13 (8) Hester was sentenced on September 10, 2010, but did not file his Motion to Suspend until July 15, 2024.14 The Court acknowledges Hester’s familial hardship; however, it does not qualify as “extraordinary circumstances” justifying Hester’s delay in filing his Motion to Suspend.15 (9) Because his Motion to Suspend was filed more than 90 days after sentencing and no extraordinary circumstances justify the delay, his Motion to Suspend is procedurally barred as untimely.

(10) Therefore, Hester’s Motion to Suspend is DENIED.

JULY LETTER MOTION (CASE NUMBER 0604, D.I. 210)

(11) On July 29, 2024, Hester wrote a letter (“July Letter Motion”)

11 Del. Super. Ct. Crim. R. 35(b). 12 Id. 13 State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015) (quotations omitted). 14 Case No. 0604, D.I. 27; D.I. 209. 15 See Jones v. State, 2003 WL 356788, at *1 (Del. Feb.14, 2003) (holding that familial hardship does not constitute an extraordinary circumstance).

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requesting the Court to “suspend any possible level-four sentence and the remaining six months . . .” of his Level V sentence.16 (12) On October 21, 2024, the State filed a response to Hester’s July Letter Motion, arguing that Hester’s request to suspend the remainder of his Level V sentence should be denied because it is procedurally barred as untimely.17 The Court agrees.

(13) Hester was sentenced on September 10, 2010, but did not write his July Letter Motion until July 29, 2024.18 The Court again acknowledges Hester’s familial hardship, as well as the programming he has completed since being incarcerated; however, the Court reiterates that these do not qualify as “extraordinary circumstances” justifying Hester’s delay in filing his July Letter Motion.19 (14) Because his July Letter Motion was filed more than 90 days after sentencing and no extraordinary circumstances justify the delay, the portion of his July Letter Motion requesting a modification of Level V is procedurally barred as untimely.

16 Although not titled as such, the Court considers this letter as a Motion for Modification because Hester requests a change to his Level V and Level IV sentences. Case No. 0604, D.I. 210, at 4 (filed under seal). 17 Case No. 0604, D.I. 220, at 1 (filed under seal). 18 Case No. 0604, D.I. 27; D.I. 210 (filed under seal). 19 See supra note 15. See also State v. Culp, 152 A.3d 141, 145-146 (Del. 2016) (The Delaware Supreme Court “has held that ‘participation in educational and rehabilitative programs, while commendable, does not, in and of itself, constitute ‘extraordinary circumstances’ for purpose of Rule 35(b).”).

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(15) Therefore, the portion of Hester’s July Letter Motion requesting a modification of Level V is DENIED.

(16) Hester’s July Letter Motion also requests the Court to modify his Level IV sentence by “transfer[ing] everything else for [him] to serve . . . in the state . . . where [he] has been for the last four years.”20 The State took no position on this request, deferring to the Court.21 (17) The procedural bar for timeliness only applies to requests for modification of Level V.22 Therefore, the portion of Hester’s July Letter Motion requesting a modification of Level IV is not procedurally barred for timeliness.

(18) For good cause shown, and under extraordinary circumstances, the Court finds that a modification of Hester’s Level IV sentence is appropriate.

(19) Therefore, the portion of Hester’s July Letter Motion that requests a modification of his Level IV sentence is GRANTED.

(20) The Court modifies Hester’s sentence for his Unlawful Imprisonment conviction23 as follows: The defendant is placed in the custody of the Department of Correction for 1 year at Level V, suspended for 2 years at Level III.

(21) Hester seeks to transfer his probation to the state in which he is

20 Case No. 0604, D.I. 210, at 4 (filed under seal). 21 Case No. 0604, D.I. 220, at 2 (filed under seal). 22 Del. Super. Ct. Crim. R. 35(b) (“The court may suspend the costs or fine, or reduce the fine or term or conditions of partial confinement or probation, at any time.”). 23 Case No. 0604, Criminal Action No. IN10-02-0130. This conviction is the only conviction from this case with a Level IV sentence. Case No. 0604, D.I. 27.

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currently incarcerated.24 The Court has no objection to Hester transferring his probation to another state.

(22) In conclusion, Hester’s July Letter Motion is DENIED as to Level V and GRANTED as to Level IV.

MOTION FOR MODIFICATION OF SENTENCE (CASE NUMBER 0604, D.I. 211; CASE NUMBER 2758, D.I. 101)

(23) On August 20, 2024, Hester filed a Motion for Change of Sentence, Reduction, Suspension of Sentence or Modification of Sentence (“Motion for Modification of Sentence”) requesting the Court to “suspend [his] level-four work release sentence so [he] can . . . have the level-3 switch[ed] to [the state of his incarceration] before [his] . . . release date.”25 This Motion for Modification of Sentence was filed in two cases.26 (24) On October 21, 2024, the State filed a response to Hester’s Motion for Modification of Sentence, taking no position on Hester’s request to suspend his Level IV sentence and deferring to the Court.27 (25) Because the Court is granting Hester’s July Letter Motion in part by

24 Case No. 0604, D.I. 210, at 4 (filed under seal). 25 Case No. 0604, D.I. 211, at 10 (filed under seal); see also Case No. 2758, D.I. 101, at 10 (filed under seal). 26 Case No. 0604, D.I. 211, at 10 (filed under seal); see also Case No. 2758, D.I. 101, at 10 (filed under seal). This Motion for Modification is repetitive as to Case Number 0604 since the same request was previously raised in Hester’s July Letter Motion. Case No. 0604, D.I. 210, at 4 (filed under seal). 27 Case No. 0604, D.I. 220, at 2 (filed under seal).

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eliminating his Level IV sentence in Case Number 0604,28 Hester’s Motion for Modification of Sentence is DENIED AS MOOT in that case.29 (26) However, the identical Motion for Modification of Sentence requesting a modification of Level IV in Case Number 2758 is not moot because the Level IV sentence in that case has not yet been modified.30 (27) For good cause shown, and under extraordinary circumstances, the Court finds that modification of Hester’s Level IV sentence in Case Number 2758 is appropriate.

(28) Therefore, Hester’s Motion for Modification of Sentence is GRANTED in Case Number 2758.

(29) The Court modifies Hester’s sentence for his Assault Second conviction31 as follows: The defendant is placed in the custody of the Department of Correction for 8 years at Level V, suspended after 5 years at Level V for 2 years at Level III.

(30) Hester seeks to transfer his probation to the state in which he is

28 See supra ¶¶ 19-21. 29 A request becomes moot when it has already been resolved and the Court’s involvement would no longer be helpful. Tyson Foods, Inc. v. Aetos Corp., 809 A.2d 575, 582 (Del. 2002) (“A controversy may become moot . . . because . . . the dispute is no longer amenable to judicial resolution.”) (citing General Motors Corp. v. New Castle County, 701 A.2d 819, 823 (Del. 1997)). 30 Case No. 2758, D.I. 87. The July Letter Motion was only filed in Case Number 0604. Case No. 0604, D.I. 210, at 4 (filed under seal). 31 Case No. 2758, Criminal Action No. IN10-06-1490. This conviction is the only conviction from this case with a Level IV sentence. Case No. 2758, D.I. 87.

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currently incarcerated.32 The Court has no objection to Hester transferring his probation to another state.

(31) In conclusion, Hester’s Motion for Modification of Sentence is DENIED in part and GRANTED in part, with the Level IV portion of his sentence in Case Number 2758 is modified to Level III.

AUGUST LETTER MOTION (CASE NUMBER 2758, D.I. 102)

(32) On August 28, 2024, Hester filed a Letter (“August Letter Motion”)

requesting the Court to “suspend [his] level-four work release.”33 (33) On October 21, 2024, the State filed a response to Hester’s August Letter Motion, taking no position on Hester’s request to suspend his Level IV sentence and deferring to the Court.34 (34) Because the Court is granting Hester’s Motion for Modification of Sentence, the August Letter Motion is moot since Hester’s Level IV sentence in Case Number 2758 has been modified to Level III.35 (35) Therefore, Hester’s August Letter Motion is DENIED AS MOOT.

SEPTEMBER LETTER MOTION (CASE NUMBER 6160, D.I. 17)

(36) On September 30, 2024, Hester wrote a Letter (“September Letter

32 Case No. 0604, D.I. 210, at 4 (filed under seal). 33 The Court considers this letter as a Motion for Modification. Case No. 2758, D.I. 102, at 6 (filed under seal). 34 Case No. 0604, D.I. 220, at 2 (filed under seal). 35 See supra ¶¶ 28-30.

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Motion”) requesting the Court to “suspend/vacate [his] . . . level four work release.”36 (37) On November 20, 2024, Judge Vavala filed a letter informing Hester that his concerns were referred to the Department of Corrections.37 (38) Because Hester was never sentenced to Level IV time in this case, the September Letter Motion is moot.38 (39) Therefore, Hester’s September Letter Motion is DENIED AS MOOT.

OCTOBER LETTER MOTION

(CASE NUMBER 0604, D.I. 219; CASE NUMBER 2758, D.I. 109)

(40) On October 18, 2024, Hester filed a Letter (“October Letter Motion”)

requesting the Court to “suspend [his] Level-4 work release.”39 (41) Because the Court is granting Hester’s July Letter Motion with regard to Level IV in Case Number 0604 and his Motion for Modification of Sentence in Case Number 2758, the October Letter Motion is moot since Hester’s Level IV sentences have been modified to Level III.40 (42) Therefore, Hester’s October Letter Motion is DENIED AS MOOT.

36 The Court considers this letter as a Motion for Modification. Case No. 6160, D.I. 17, at 6 (filed under seal). 37 Case No. 6160, D.I. 18. 38 See Case No. 6160, D.I. 12. 39 The Court considers this letter as a Motion for Modification. This Motion was filed in two cases. Case No. 0604, D.I. 219, at 2 (filed under seal); see also Case No. 2758, D.I. 109, at 2 (filed under seal). 40 See supra ¶¶ 19-21, 28-30.

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NOVEMBER LETTER MOTION (CASE NUMBER 6160, D.I. 19)

(43) On November 29, 2024, Hester wrote a Letter (“November Letter Motion”) requesting the Court to “set-up [a] video conference . . . [for his] Motion to Suspend Level four work release . . . .”41 (44) Because Hester was never sentenced to Level IV time in this case, the November Letter Motion is moot.42 (45) Therefore, Hester’s November Letter Motion is DENIED AS MOOT.

DECEMBER LETTER MOTION

(CASE NUMBER 0604, D.I. 223; CASE NUMBER 2758, D.I. 110)

(46) On December 30, 2024, Hester filed a Letter (“December Letter Motion”) requesting the Court to “vacate or suspend [his] . . . level-four work release . . . .”43 (47) Because the Court is granting Hester’s July Letter Motion with regard to Level IV in Case Number 0604 and his Motion for Modification of Sentence in Case Number 2758, the December Letter Motion is moot since Hester’s Level IV sentences have been modified to Level III.44 (48) Therefore, Hester’s December Letter Motion is DENIED AS MOOT.

41 The Court considers this letter as a Motion for Modification. Case No. 6160, D.I. 19, at 4 (filed under seal). 42 See Case No. 6160, D.I. 12. 43 The Court considers this letter as a Motion for Modification. This Motion was filed in two cases. Case No. 0604, D.I. 223, at 4 (filed under seal); see also Case No. 2758, D.I. 110, at 4 (filed under seal). 44 See supra ¶¶ 19-21, 28-30.

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CONCLUSION

(49) The Court is not modifying Hester’s Level V sentences; therefore, Hester will serve the remainder of his Level V time. Upon completion of Hester’s Level V sentence, he will be released form Level V to serve Level III probation.45 The Court has no objection to Hester transferring his probation to another state.

NOW, THEREFORE, IT IS HEREBY ORDERED that Hester’s Motion to Suspend is DENIED as procedurally barred; his July Letter Motion is DENIED in part and GRANTED in part; his Motion for Modification of Sentence is DENIED in Case Number 0604 and GRANTED in Case Number 2758; and his August, September, October, November, and December Letter Motions are DENIED AS MOOT.

IT IS SO ORDERED.

/s/ Jan R. Jurden

Jan R. Jurden, President Judge

cc: Original to Prothonotary Jenna R. Milecki, Esq.

Ross A. Flockerzie, Esq.

Cornell L. Hester (SBI # 00591963)

45 Hester’s Level IV time has been modified to Level III. See supra ¶¶ 19-21, 28-30.