State v. Smith

• Court: Superior Court of Delaware
• Decided: June 7, 2023
• Docket: 2008003722
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ) I.D. No. 2008003722 LLOYD SMITH, ) ) Defendant. )

ORDER

Submitted: April 27, 2023 Decided: June 7, 2023

AND NOW TO WIT, this 7th day of June 2023, upon consideration of

Lloyd Smith (“Defendant”)’s Motion for Modification/Reduction of Sentence

under Superior Court Criminal Rule 35, the sentence imposed upon the

Defendant, and the record in this case, it appears to the Court that:

1. On August 26, 2021, Defendant pled guilty to Possession of a Firearm

During the Commission of a Felony (PFDCF), Carrying a Concealed Deadly

Weapon (CCDW), and Conspiracy Second Degree.1 On November 5, 2021, for the

PFDCF charge, Defendant was sentenced to ten years at Level V, suspended after

four years, followed by one year at Level IV DOC discretion and transitioning Level

III of probation.2 For the CCDW charge, Defendant was sentenced to two years at

Level V, suspended for two years at Level III; and, for the Conspiracy Second

1 D.I. 23. 2 D.I. 30. Degree charge, one year at Level V, suspended for one year at Level II probation.3

2. On April 8, 2022, Defendant filed his first Rule 35 motion seeking

reduction of his Level V sentence. 4 On October 18, 2022, Defendant filed another

Rule 35 motion, requesting to modify his Level IV sentence terms. 5 Both motions

were denied.6

3. On April 24, 2023, Defendant again filed this Motion for Modification.

This time, Defendant asks the Court to remove the Level IV sentence and allow

Defendant to receive the Level III sentence for two years after completion of his

Level V sentence.

4. Under Rule 35(b), the Court may reduce the “term or conditions of

partial confinement or probation, at any time.” 7 But, “[t]he court will not consider

repetitive requests for reduction of sentence.” 8 A motion is considered repetitive

when it “is preceded by an earlier Rule 35(b) motion, even if the subsequent motion

raises new arguments.” 9 The repetitive motion bar applies to the request for

reduction or modification of a term of partial confinement or probation.10

3 D.I. 30. 4 D.I. 29. 5 D.I. 30. 6 D.I. 31. 7 Del. Super. Ct. Crim. R. 35(b). 8 Id. (emphasis added). 9 State v. Culp, 152 A.3d 141, 144 (Del. 2016). 10 See Teat v. State, 31 A.3d 77, 2011 WL 4839042, at *1 (Del. 2011) (Table); State v. Weidlow, 2015 WL 1142583, at *1–2 (Del. Super. Ct. Mar. 11, 2015). 2 Defendant’s request is barred as repetitive. Rule 35 does not allow the Court to use

its discretion to ignore this bar.11

IT IS SO ORDERED that the Motion for Modification of Sentence is

SUMMARILY DISMISSED.

/s/ Vivian L. Medinilla Vivian L. Medinilla Judge

oc: Prothonotary cc: Defendant Department of Justice Investigative Services

11 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