State v. Perez-Lugo

• Court: Superior Court of Delaware
• Decided: October 3, 2023
• Docket: 1910005724 & 2005007139
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ID Nos. 1910005724 & 2005007193 ) Jose A. Perez-Lugo, ) ) Defendant, )

Date Submitted: August 1, 2023 Date Decided: October 3, 2023

ORDER

Upon consideration of Defendant Jose Perez Lugo’s “Motion to Modify No

Contact Provision” (“Motion”), the State’s response,1 Superior Court Criminal Rule

35(b) 2 , statutory and decisional la,, and the record in this case, IT APPEARS

THAT:

(1) On September 16, 2021, Perez-Lugo pled guilty to the follo,ing

charges: Assault 2nd Degree, IN20-02-1018; Noncompliance ,ith Conditions of

Bond, IN20-12-0007; and Endangering the Welfare of a Child, IN20-01-0167.3 By

Order dated November 3, 2021, Perez-Lugo ,as sentenced as follo,s: As to Assault

2nd Degree, 8 years at Level 5, suspended after 1 year at Level 5, for 7 years Level 4

DOC discretion, suspended after 6 months Level 4 DOC discretion for 18 months

1 D.I. 17. 2 Super. Ct. Crim. R. 35(b). 3 D.I. 15. Level 3, hold at Level 5 until space is available at Level 4 DOC discretion. As to

Noncompliance ,ith Conditions of Bond, 5 years Level 5 suspended after 1 year at

Level 5, for 18 months at Level 3. As to Endangering the Welfare of a Child, 1 year

Level 5 suspended for 1 year at Level 3. Perez-Lugo is to have no contact ,ith

Rebecca Angeline or Brianne Eichman.4 Brianne Eichman has t,o children ,ith

Perez-Lugo: Cameron Perez (DOB 9/25/20) and Amelia Perez (DOB 12/20/21).5

(2) On August 1, 2023, Perez-Lugo filed this Motion asking the Court to

modify the “no contact” provision bet,een him and Brianne Eichman to a “no

unla,ful contact” provision. 6 In support of his request, Perez-Lugo cites Ms.

Eichman’s strong desire to co-parent upon his release to the community, her

enrollment in a domestic violence program, and utilization of therapy efforts to

discuss ,hat is necessary for a healthy relationship ,ith the father of her children.7

(3) On September 25, 2023, the State filed its response to the Perez-Lugo’s

motion.8 The State is opposed to a modification from “no contact” to “no unla,ful

contact,” but is not opposed to the Court modifying the no contact order to read: “No

contact ,ith Brianne Eichman except pursuant to a valid Family Court order.9

4 Id. 5 Id. 6 D.I. 17. 7 Id. 8 Id. 9 Id. 2 (4) Rule 35(b) governs motions for modification or reduction of sentence.10

“Under Rule 35(b), a motion for sentence modification must be filed ,ithin ninety

days of sentencing, absent a sho,ing of ‘extraordinary circumstances.’”11 Ho,ever,

under Rule 35(b), a motion for modification of partial confinement or probation, is

not procedurally barred by the 90-day requirement.12

(5) Although the State is not opposed to modifying the no contact order to

“no contact except pursuant to a valid Family Court order,” 13 the State remains

concerned about the victim’s safety. 14 Further, because Perez-Lugo committed a

violation approximately t,o months after being released from Level 5 custody, and

the State is unable to contact the victim, the State is not optimistic Perez-Lugo can

engage in la,ful behavior.15

(6) Given the State’s concerns, Perez-Lugo’s violation of probation, and

the State’s inability to speak ,ith the victim about the modification request, the

Court declines to modify the no-contact provision of Perez-Lugo’s sentence.

10 Super. Ct. Crim. R. 35(b). 11 Croll v. State, 2020 WL 1909193, at *1 (Del. Apr. 17, 2020) (TABLE) (affirming the Superior Court’s denial of a motion for modification of sentence ,here the motion ,as repetitive and filed beyond the 90-day limit). 12 State v. Redden, 111 A.3d 602, 606 (Del. Super. 2015) (affirming the Superior Court’s ability to reduce the term or condition of partial confinement or probation at any time). 13 D.I. 17. 14 Id. 15 Id. See State v. Gerleve, 2021 Del. Super. LEXIS 382 (Del. Super. Ct. 2021) (denied modification of no contact provision ,here Defendant ,as arrested and faced subsequent charges and State attempted to reach the mother of the victim but ,as unable to do so). 3 NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s

Motion for Modification of Sentence is DENIED.

/s/ Jan R. Jurden Jan R. Jurden, President Judge

cc: Original to Prothonotary Jenna R. Milecki, DAG