State v. Miller

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ) I.D. Nos. 1909007362, 1909007180, JAMES MILLER, ) 1907012442 & 1907018191 ) Defendant. )

ORDER

Submitted: June 2, 2023 Decided: July 10, 2023

AND NOW TO WIT, this 10th day of July 2023, upon consideration of

James Miller (“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 January 27, 2020, Defendant pled guilty to two counts of Burglary

Second Degree, one count of Non-compliance with Bond Conditions, and one count

of Assault Third Degree. 1 On April 23, 2020, Defendant was sentenced to: for each

Burglary Second Degree charge, 8 years at Level V, suspended after 3 years, for 18

months at Level III; for Non-Compliance with Bond Conditions, 2 years at Level

V, suspended for 12 months at Level III; and for Assault Third Degree, Defendant

was sentenced to one year at Level V, suspended for 12 months at Level III.2

1 Crim ID No. 1909007362, D.I. 7. 2 Crim ID No. 1909007362, D.I. 9. Defendant was also sentenced to restitution for a burglary 2. In June and July of 2020, Defendant filed his first Rule 35 motion with

a supplemental letter, 3 respectively, asking that his sentences run concurrently under

11 Del. C. § 3901(d)4 and 11 Del. C. § 825,5 and that he be permitted to participate

in a DOC treatment program. The Court denied the requests.6

3. On May 17, 2023, Defendant filed this Motion for Modification of

Sentence asking now that this Court reduce the remaining year of his Level V

sentence to Level IV. 7 In support, he states that, as he completed numerous

programs, including educational, therapeutic, and violence-alternative programs, he

is able to create a stable lifestyle upon his early release. 8

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. 9 Defendant is time-barred. To overcome the time bar, he must show that

“extraordinary circumstances” 10 forgive the tardiness of his Motion. 11 The sole basis

charge, paying $3,950.00 to the victim. Id. 3 See Crim ID No. 1909007362, D.I. 8; D.I. 10. 4 See 11 Del. C. § 3901 (providing for the fixing of terms of imprisonment within the Court’s discretion to direct). 5 See 11 Del. C. § 825 (providing the definition of Burglary in the Second Degree). 6 Crim ID No. 1909007362, D.I. 11. 7 Crim ID No. 1909007362, D.I. 12. 8 Id. 9 Del. Super. Ct. Crim. R. 35(b). 10 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)). 11 See Colon v. State, 900 A.2d 635, 638 (Del. 2006) (citations omitted). 2 for his request to create a stable life upon early release does not constitute

extraordinary circumstances.

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

of sentence.”12 A motion is considered repetitive when it “is preceded by an earlier

Rule 35(b) motion, even if the subsequent motion raises new arguments.” 13 He

previously filed a Rule 35(b) motion in June of 2020. 14 Thus, Defendant’s request

is barred as repetitive. Rule 35 does not allow the Court to use its discretion to ignore

this bar.15

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

12 Del. Super. Ct. Crim. R. 35(b). 13 State v. Culp, 152 A.3d 141, 144 (Del. 2016). 14 See Crim ID No. 1909007362, D.I. 8. 15 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