State v. Luis Levante

• Court: Superior Court of Delaware
• Decided: May 17, 2023
• Docket: 2109011186
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ) I.D. No. 2109011186 ) LUIS LEVANTE, ) ) Defendant. )

ORDER

Submitted: April 18, 2023 Decided: May 17, 2023

AND NOW TO WIT, this 17th day of May 2023, upon consideration

of Luis Levante (“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 June 21, 2022, Defendant pled guilty to Possession of a

Firearm During the Commission of Felony (PFDCF) and Reckless

Endangering First Degree. 1 On January 20, 2023, Defendant was sentenced

for PFDCF to 25 years at Level V, suspended after 3 years, for transitioning

levels of probation. 2 For Reckless Endangering First Degree, he received 5

1 D.I. 12. 2 Although the parties originally believed a prior conviction from Puerto Rico would expose Defendant to a five-year minimum sentence as reflected in the Truth-In-Sentencing paperwork, at the time the plea agreement was entered, it was agreed that a three-year minimum sentence applied years at Level V, suspended for 2 years at Level III. 3

2. On April 14, 2023, Defendant filed a Motion for

Modification/Reduction of Sentence, asking the Court to suspend his Level V

sentence upon completion of his “intense behavioral modification program,” due

to improved conduct he attributes to full compliance with that programming. 4

3. Under Superior Court Criminal Rule 35(b), the Court may reduce a

sentence of imprisonment on a motion made within 90 days after the sentence is

imposed. 5 “Rule 35(b) allows for a reduction of sentence without regard to the

existence of a legal defect.”6 Accordingly, a timely and non-repetitive Rule 35(b)

motion is “essentially a ‘plea for leniency.’” 7

4. Although Defendant’s Motion was filed within 90 days of

sentencing—and not time-barred—Defendant is still serving the minimum

mandatory period of his sentence. So, although the Court generally has wide

discretion to reduce a sentence upon this timely Rule 35(b) application, the Court

has no authority to reduce or suspend the mandatory portion of any substantive

instead. 3 D.I. 14. 4 D.I. 15 (stating that Defendant has mental health and substance abuse issues). 5 Del. Super. Ct. Crim. R. 35(b). 6 State v. Lewis, 797 A.2d 1198, 1201 (Del. 2002). 7 Id. at 1202 (quoting United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973)). 2 minimum sentence.8

5. Furthermore, the Court afforded leniency when it imposed the

minimum mandatory sentence. Thus, Defendant’s sentence is appropriate for all

the reasons set forth at sentencing.

IT IS SO ORDERED that Defendant’s Motion for Sentence

Modification/Reduction is DENIED.

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

oc: Prothonotary cc: Defendant Department of Justice Investigative Services

8 State v. Sturgis, 947 A.2d 1087, 1092 (Del. 2008) (“Superior Court Rule of Criminal Procedure 35(b) provides no authority for a reduction or suspension of the mandatory portion of a substantive statutory minimum sentence.”) (emphasis in original). 3