State v. Turay

• Court: Superior Court of Delaware
• Decided: March 14, 2023
• Docket: 1809013709
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) ID No. 1809013709 ) GABRIEL TURAY, ) ) Defendant. )

ORDER

On this 14th day of March, 2023, upon consideration of Defendant, Gabriel

Turay’s (“Defendant”) pro se Motion for Sentence Modification (the “Motion”),1

the sentence imposed upon Defendant, and the record in this case, it appears to the

Court that:

1. On June 17, 2019, Defendant pled guilty to the charges of Strangulation

and Theft Under $1500.2 On October 15, 2019, Defendant was sentenced to six

years at Level V, suspended after three years and six months, followed by eighteen

months Level III, with GPS monitoring.3

2. On January 18, 2023, Defendant filed this Motion for Reduction of

Sentence, requesting his sentence be modified to remove the 18 months at Level III

1 D.I. 34. 2 D.I. 18. 3 D.I. 25. Effective May 31, 2019, Defendant was sentenced as follows: (1) Strangulation, five years at Level V, suspended after three years and six months, for eighteen months Level III GPS, hold at Level V until space is available at Level III and (2) Theft, twelve months at Level V. The sentences are to run consecutively. GPS monitoring requirement to 12 months at “supervised probation.”4 In support,

Defendant argues “Extraordinary Circumstances” in that his family has relocated out

of state and they are his sole means of financial and recovery support. Movant

additionally asserts “Accountability” as he has completed DOC mandated programs

and “Interstate Compact Filing,” to indicate that while he is at Plummer Center

(Level IV), he will be filing for interstate transfer in order to work in Lauren, MD.5

3. Previously, Defendant has filed a Motion for Sentence Modification on

two previous occasions. On March 21st, 2022, Defendant filed such a motion,

requesting that his Level V sentence for Theft under $1500 be modified to Level III

probation to be served concurrently with the existing eighteen months already

sentenced.6 In that motion, Defendant asserted that he has completed an anger

management program, and is enrolled in a GED class and a Road to Recovery

program.7

4. That motion was denied as it was barred as repetitive and that “no

additional information [was] provided to the Court that would warrant a reduction

or modification of [Defendant’s] sentence.”8

4 D.I. 34 5 Id. 6 D.I. 32. 7 Id. 8 D.I. 33; State v. Gabriel Turay, ID No. 1809013709, Super. Ct. June 28, 2022, Rennie, J., ORDER. 2 5. Prior to that, Defendant, through counsel, submitted a motion for reduction

of sentence on January 8, 2020.9 The Court denied that on May 20, 2020, on the

grounds that no information had been provided that would warrant a reduction of his

sentence.10

6. Pursuant to Superior Court Criminal Rule 35(b), “[“[t]he court will not

consider repetitive requests for reduction of sentence.”11 A motion is considered

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

subsequent motion raises new arguments.”12 The bar to repetitive motions has no

exception.13 The repetitive motion bar is applicable even when the request is for

reduction or modification of probation.14 Defendant’s previous motion for

modification of sentence15 had been denied.16 Therefore, this Rule 35(b) Motion is

also barred as repetitive.

9 D.I. 26. 10 D.I. 31 11 Morrison v. State, 846 A.2d 238, 2004 WL 716773, at *1-2 (Del. Mar. 24, 2004) (TABLE) (emphasis added). 12 State v. Culp, 152 A.3d 141, 144 (Del. 2016). 13 Thomas v. State, 812 A.2d 900, 2002 WL 31681804, at *1 (Del. Nov. 25, 2002) (TABLE) (It is absolute and flatly “prohibits repetitive requests for reduction of sentence.”). See Jenkins v. State, 954 A.2d 910, 2008 WL 2721536, at *1 (Del. July 14, 2008) (TABLE) (Rule 35(b) “prohibits the filing of repetitive sentence reduction motions.”); see also Morrison v. State, 846 A.2d 238, 2004 WL 716773, at *2 (Del. Mar. 24, 2004) (TABLE) (defendant’s “motion was repetitive, which also precluded its consideration by the Superior Court.”). 14 See Teat v. State, 2011 WL 4839042, at *1 (Del. Oct. 12, 2011); see also State v. Bennett, 2015 WL 1746239, at *2 (Del. Super. Apr. 13, 2015); see also State v. Weidlow, 2015 WL 1142583, at *1–2 (Del. Super. Mar. 11, 2015). 15 D.I. 26. 16 D.I. 31. 3 6. Further, Criminal Rule 35(b) permits a reduction or modification of

sentence on “a motion made within 90 days after the sentence is imposed.”17

Defendant’s most recently filed instant motion is not only barred as repetitive, but is

time-barred, as well. Only two exceptions permit the Court to review a time-barred

motion for reduction of sentence: upon a showing of “extraordinary circumstances

by the movant, and upon an application of the Department of Corrections pursuant

to 11 Del. C. § 4217.18 As this is Defendant’s motion, and not an application made

pursuant to 11 Del. C. § 4217, he must show extraordinary circumstances to warrant

review, which is his “heavy burden” to overcome.19 Extraordinary circumstances

are those that “specifically justify the delay; are entirely beyond a petitioner’s

control; and have prevented the applicant from seeking the remedy on a timely

basis.”20

7. In his motion, Defendant asserts that extraordinary circumstances exist

because his family – his financial and emotional recovery support system – has

relocated to Laurel, MD, “because of circumstances beyond his control.”21 This

unsupported factual basis fails to meet Defendant’s high burden for relief here.

17 Superior Court Criminal Rule 35(b). 18 State v. Culp, 152 A.3d at 145. 19 Id. 20 Id., citing Diaz v. State, 2015 WL 1741768, *2 (Del. 2015) (internal quotations and citations omitted). 21 Defendant’s Motion, page 2. 4 8. Not only has no additional information has been provided to the Court from

Defendant’s previous submissions that would warrant a reduction or modification of

this sentence, allowing an untimely, repetitive motion under Rule 35(b) would “end-

run” the procedural bars set forth in the Rule and “risk overwhelming the courts and

undercutting the finality of sentences.”22 Accordingly, Defendant’s Motion for

Modification of Sentence is DENIED.

IT IS SO ORDERED.

____________________________ Danielle J. Brennan, Judge

Original to Prothonotary Cc: Gabriel Turay (SBI #00685012) Department of Justice Investigative Services

22 Culp, 152 A.3d at 146-147. 5