State v. Scott

• Court: Superior Court of Delaware
• Decided: December 7, 2020
• Docket: 1004019692 1309013326
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) I.D. Nos. 1004019692, ) 1309013326 DESMOND SCOTT, ) ) Defendant. )

Date Submitted: October 22, 2020 Date Decided: December 7, 2020

ORDER

Upon consideration of Defendant’s Motion for Modification of Sentence

(“Motion”),1 Superior Court Criminal Rule 35, statutory and decisional law, and the

record in this case, IT APPEARS THAT:

1. On October 26, 2010, Defendant pled guilty to Trafficking.2 The Court

immediately sentenced Defendant to 10 years at Level V, suspended after 3 years at

Level V, for 18 months at Level III.3

2. While Defendant was serving his sentence for the Trafficking

conviction, he was found in violation of probation (“VOP”) twice.4

1 ID No. 1004019692, D.I. 50; ID No. 1309013326, D.I. 22. 2 ID No. 1004019692, D.I. 10. 3 ID No. 1004019692, D.I. 12. 4 ID No. 1004019692, D.I. 15, 27. 3. The conduct underlying Defendant’s second VOP resulted in new

charges, which were filed in a new criminal case.5 The new charges included

Possession of a Firearm by a Person Prohibited (“PFBPP”) and Possession of

Ammunition by a Person Prohibited (“PABPP”).6 On March 18, 2014, Defendant

pled guilty to PFBPP and PABPP.7

4. On December 19, 2014, the Court issued two sentencing orders.8 In the

first of these sentencing orders, effective September 19, 2014, the Court sentenced

Defendant for his second VOP in the Trafficking case. Defendant was sentenced to

3 years at Level V.9 In the second sentencing order, effective December 19, 2014,

the Court sentenced Defendant for his PFBPP and PABPP conviction as follows: 10

years at Level V, suspended after 6 years at Level V, for 4 years at Level IV (Work

Release), suspended after 6 months at Level IV (Work Release), for 2 years at Level

III, hold at Level V until space is available at Level IV (Work Release).10

5. On December 5, 2016, Defendant filed a Motion for Modification of

Sentence in his PFBPP/PABPP case.11 On February 6, 2017, the Court denied the

Motion as time barred.12

5 ID No. 1309013326, D.I. 1. 6 Id. 7 ID No. 1309013326, D.I. 11. 8 ID No. 1004019692, D.I. 30; ID No. 1309013326, D.I. 14. 9 ID No. 1004019692, D.I. 30. 10 ID No. 1309013326, D.I. 14. 11 ID No. 1309013326, D.I. 15. 12 ID No. 1309013326, D.I. 16. 2 6. On October 22, 2020, Defendant filed the instant Motion for

Modification of Sentence (the “Motion”).13 In his Motion, Defendant asks the Court

to modify the Level IV portion of his sentence “to reflect more level 3 time” or to

suspend his Level IV time completely because he is “currently at a level 4 facility.”14

In support of his Motion, Defendant notes that he has obtained a GED and a high

school diploma and has completed various programs while at Howard R. Young

Correctional Institution.15 Defendant also writes that he is striving to become a

responsible citizen and resolves to pay his fines and court costs upon finding a job.16

7. As an initial matter, the Court notes that although Defendant has filed

his Motion in both his PFBPP/PABPP case and his VOP case, he was sentenced to

Level IV time only in the former case.17 The Court therefore construes Defendant’s

Motion as a request to modify the Level IV portion of the sentence in the

PFBPP/PABPP case.

8. Superior Court Criminal Rule 35(b) governs the reduction of

sentences.18 That Rule provides, in relevant part, that the Court “will not consider

repetitive requests for reduction of sentence.”19 A motion is repetitive when it is

13 ID No. 1004019692, D.I. 50; ID No. 1309013326, D.I. 22. 14 ID No. 1004019692, D.I. 50; ID No. 1309013326, D.I. 22. 15 ID No. 1004019692, D.I. 50; ID No. 1309013326, D.I. 22. 16 ID No. 1004019692, D.I. 50; ID No. 1309013326, D.I. 22. 17 See ID No. 1004019692, D.I. 30; ID No. 1309013326, D.I. 14. 18 Super. Ct. Crim. R. 35(b). 19 Id. 3 “preceded by an earlier Rule 35(b) motion, even if the subsequent motion raises new

arguments.”20 As noted above, Defendant has already sought to modify his sentence

in the PFBPP/PABPP case. Accordingly, the instant Motion is barred as repetitive.

9. Although Defendant’s rehabilitative accomplishments are

commendable, the Court finds that Defendant’s sentence is appropriate for all of the

reasons stated at the time of sentencing. No additional information has been

provided to the Court that would warrant a reduction or modification of Defendant’s

sentence.

NOW, THEREFORE, IT IS ORDERED that Defendant’s Motion for

Modification of Sentence is DENIED.

Jan R. Jurden Jan R. Jurden, President Judge

Original to Prothonotary

cc: Desmond Scott (SBI# 00558030) Periann Doko, Esq., DAG

20 State v. Culp, 152 A.3d 141, 144 (Del. 2016). 4