State v. Perez

• Court: Superior Court of Delaware
• Decided: August 26, 2024
• Docket: 2007000677
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) I.D.: 2007000677 ) JOSE O. PEREZ, ) ) Defendant. )

SUBMITTED: August 6, 2024 DECIDED: August 26, 2024

ORDER

Upon Consideration of Defendant’s Motion to Correct and/or Modify Sentence

DENIED

This 26th day of August, upon consideration of the Motion to Correct and/or

Modify Sentence by Defendant Jose O. Perez (“Perez” or “Defendant”), it appears

to the Court that:

1. On April 27th, 2022, Perez was sentenced by this Court to: Racketeering – 15

years at Level V, suspended after 5 years at Level V, for 12 months Level III,

concurrent to any probation now serving; Controlled substance – 10 years at

Level V, suspended after 2 years at Level V, for 12 months at Level III,

concurrent to any probation now serving; Controlled substance - 10 years at

Level V, suspended after 2 years at Level V, for 12 months at Level III, 1 concurrent to any probation now serving; Conspiracy second-degree – 2 years

at Level V, suspended for 12 months at Level III, concurrent to any probation

now serving.1

2. On August 6, 2024, Perez filed this Motion to Correct and/or Modify Sentence

as it relates to the April 27th, 2022 sentencing.2 Perez suggests that the

sentence be corrected and/or modified, in the interest of justice and society, to

facilitate a more structured and quasi-incarceration form of Defendant’s re-

entry into society.3 Specifically, Defendant asks that the Court: (1) minimize

the Defendant’s risk to recidivism, and (2) allow Defendant to gain

employment through work release and gradually integrate back into society.4

According to Defendant, this should be done by imposing a Level IV portion

to his sentence. Defendant seeks to modify his sentence by substituting 1 year

of his Level V time for 9 months at Level IV.

3. Under Superior Court Criminal Rule 35(a), the court may correct an illegal

sentence at any time and may correct a sentence imposed in an illegal manner

within the time provided herein for the reduction of sentence. 5 There is

1 Docket Item (“D.I”.) 29. 2 D.I. 30. 3 Id. 4 Id. 5 Del. R. Super. Ct. 35(a).

2 nothing illegal about Defendant’s sentence and he does not allege any such

position. Therefore, Defendant is not entitled to relief under Rule 35(a).

4. Under Rule 35(b), a motion for reduction or modification of sentence must be

filed within 90 days of sentencing absent a showing of extraordinary

circumstances.6 A heavy burden is placed on a defendant to establish

extraordinary circumstances in order to uphold the finality of sentences. 7

Defendant has failed to satisfy, as required under Rule 35(b), the heavy burden

placed on him to establish extraordinary circumstances in order to uphold the

finality of sentences.8 This Court is satisfied that the Court’s sentence was

legal, and no extraordinary circumstances exist that would result in the

correction and/or modification of Defendant’s sentence.

Wherefore, Defendant Jose Perez’s Motion to Correct and/or Modify Sentence

is DENIED.

IT IS SO ORDERED

/s/ Francis J. Jones, Jr., Francis J. Jones, Jr., Judge

Original to Prothonotary

cc: Daniel B. McBride, Deputy Attorney General Jose O. Perez, S.B.I. # 00632637

6 Fidalgo v. State, 2024 WL 1252118 (Del. 2024). 7 Id. 8 Defendant will likely be flowed to Level IV during the first six months at Level V, per DOC discretion.