State v. McCray

• Court: Superior Court of Delaware
• Decided: March 1, 2024
• Docket: 02080020744
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) ) v. ) I.D. # 0208020744 ) KEVIN MCCRAY, ) ) Defendant. ) )

Submitted: January 2, 2024 Decided: March 1, 2024

ORDER DENYING KEVIN MCCRAY’S MOTION FOR SENTENCE MODIFICATION

1. After his arrest for a string of robberies, Kevin McCray (“McCray”)

plead guilty to two counts of Robbery First Degree and one count of Possession of

a Firearm During the Commission of a Felony (“PFDCF”). He was sentenced on

December 5, 2003 as follows: as to the first count of Robbery First Degree, 8 years

Level V, the first four of which were mandatory; as to the second count of Robbery

First Degree, 20 years Level V, suspended after 8 years, followed by declining levels

of supervision; and as to the PFDCF count, 10 years at Level V. 1 McCray was

ordered to pay restitution to the three institutions he robbed, in the total amount of

$58,198.26.2

1 D.I. 10. 2 Id. 2. McCray has filed a series of motions for post-conviction relief, and

sentence modification, which were denied.3

3. Currently pending is McCray’s Motion to Reduce or Abate all Court

Fines and Restitution (the “Motion”).4 McCray argues that due to the amount of

time he has served, his age, disability, and homelessness status once he is released

from Level V, and that he is not likely to reoffend, payment of the Court ordered

restitution would be a hardship. Therefore, he seeks to be relieved of this obligation.5

4. Superior Court Criminal 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.” The Court will consider a Rule 35(b) motion after the 90-day

period “only in extraordinary circumstances” or when the DOC has filed a motion

pursuant to 11 Del. C. § 4217. Under Rule 35(b), the Court may consider reducing

the term or conditions of partial confinement or probation at any time. Rule 35(b),

however, further provides that the Court “will not consider repetitive requests for

reduction of sentence.” (emphasis added).

5. Because McCray does not seek to reduce his Level V sentence, but to

modify his restitution, his request is not time-barred. However, the bar to

3 See D.I. 19, 20, 86 (denying motions for post-conviction relief); 95, 97 (denying motions for sentence modification). 4 D.I. 98. 5 Id. 2 considering repetitive requests for modification of a sentence is absolute.6 This

procedural bar applies even when the subsequent motion requests a reduction or

modification of a term of partial confinement or probation.7 McCray previously

filed at least two motions, none of which modified his sentence. Therefore, the

Motion is barred as repetitive.

6. Even if the Court considered the merits of the Motion, it would not be

granted. McCray presented no additional information that would warrant a reduction

or modification of this sentence. Accordingly, the Motion is DENIED.

IT IS SO ORDERED.

/s/Kathleen M. Miller Judge Kathleen M. Miller

6 State v. Burton, 2020 WL 3057888, at *2 (Del. Super. June 5, 2020) (The bar to considering repetitive motions has no exceptions). 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.”). 7 Burton, 2020 WL 3057888, at *2; State v. Pryor, 2023 WL 3496289, *2 (Del. Super. May 17, 2023). 3