State v. Smith

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ) I.D. No. 2009010616 ZAKIER SMITH, ) ) Defendant. )

ORDER

Submitted: May 3, 2023 Decided: July 6, 2023

AND NOW TO WIT, this 6th day of July 2023, upon consideration of

Zakier Smith (“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 18, 2023, Defendant pled guilty to Gang Participation,

Assault Second Degree, and Possession of a Firearm During the Commission of

a Felony (“PFDCF”). 1 On March 24, 2023, he was sentenced to: (1) for Gang

Participation, 3 years at Level V, suspended for 1 year at Level III; (2) for

Assault Second Degree, 8 years at Level V, suspended after 2 years at Level III;

and (3) for PFDCF, 25 years at Level V, suspended after 3 years for transitioning

1 D.I. 59. Defendant also pled guilty to Violation of Probation for Gang Participation. Id. levels of probation. 2

2. On May 1, 2023, Defendant filed a Motion for

Modification/Reduction of Sentence, asking the Court to run his last 6 months

of Level V time concurrently with his Level IV time because he will already

be serving a Level IV sentence, 3 while enrolled in the Key Program.

3. Under Superior Court Criminal Rule 35(b), the Court may reduce

a sentence of imprisonment on a motion made within 90 days after the sentence

is imposed.4 “Rule 35(b) allows for a reduction of sentence without regard to

the existence of a legal defect.” 5 Accordingly, a timely and non-repetitive Rule

35(b) motion is “essentially a ‘plea for leniency.’” 6

4. Although Defendant’s Motion was filed within 90 days of

sentencing—and not time-barred—Defendant is still serving the minimum

mandatory period of his sentence. So, although the Court generally has wide

discretion to reduce a sentence upon this timely Rule 35(b) application, the

Court has no authority to reduce or suspend the mandatory portion of any

substantive minimum sentence. 7 Further, DOC confirmed via email that it has

2 D.I. 62. 3 D.I. 64. 4 Del. Super. Ct. Crim. R. 35(b). 5 State v. Lewis, 797 A.2d 1198, 1201 (Del. 2002). 6 Id. at 1202 (quoting United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973)). 7 State v. Sturgis, 947 A.2d 1087, 1092 (Del. 2008) (“Superior Court Rule of Criminal Procedure 2 not been decided whether Defendant’s last six months of Level V time will be

substituted with a Level IV program. 8

5. The Court afforded leniency when it imposed the minimum

mandatory sentence. Thus, Defendant’s sentence is appropriate for all the

reasons set forth at sentencing.

IT IS SO ORDERED that Defendant’s Motion for Sentence

Modification/Reduction is DENIED.

/s/Vivian L. Medinilla Vivian L. Medinilla Judge oc: Prothonotary cc: Defendant Department of Justice Investigative Services

35(b) provides no authority for a reduction or suspension of the mandatory portion of a substantive statutory minimum sentence.”) (emphasis in original). 8 See D.I. 65. 3