State v. Velez

• Court: Superior Court of Delaware
• Decided: March 1, 2024
• Docket: 2103017132
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) ) v. ) I.D. # 2103017132 ) BRENNAN VELEZ, ) ) Defendant. ) )

Submitted: January 3, 2024 Decided: March 1, 2024

ORDER DENYING BRENNAN VELEZ’S THIRD MOTION FOR REDUCTION/MODIFICATION OF SENTENCE

This 1st day of March, 2024, the Court having considered Brennan Velez’s

(“Velez”) Motion for Reduction/Modification Sentence (the “Third Reduction

Motion”), for the following reasons, the motion is DENIED.

1. On May 25, 2022, Velez pleaded guilty to one count of Assault Second

Degree and one count of Possession of a Firearm During the Commission of a Felony

(“PFDCF”). As a result of the plea, Velez faced a three-year minimum mandatory

sentence. The Court sentenced Velez on June 1, 2022 as follows: (1) as to Assault

Second Degree, eight years at Level V, suspended for 18 months of Level III

probation; and (2) as to PFDCF, ten years at Level V, suspended after five years for

1 6 months at Level IV at Department of Corrections’ (“DOC”) discretion, followed

by 18 months at Level III. The sentence was effective March 30, 2021.1

2. On November 18, 2022, Velez filed a Motion for Sentence Reduction

(the “First Reduction Motion”), seeking to reduce his five-year unsuspended Level

V sentence.2 In support of his First Reduction Motion, Velez argued that he was

awarded a high school diploma in 2019, he plans to obtain a commercial drivers

license upon his release to support his family’s financial needs, and that he had no

prior criminal record. He further stated that he completed an anger management

program while incarcerated. Finally, he stated that he changed his mindset and will

not engage in criminal conduct in the future.3

3. Superior Court Criminal Rule 35(b) provides that the Court “may

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

sentence is imposed.” The Court will consider a Rule 35(b) motion after the 90-day

period “only in extraordinary circumstances” or when the DOC has filed a motion

pursuant to 11 Del. C. § 4217, which is not applicable here. Rule 35(b) further

provides that the Court “will not consider repetitive requests for reduction of

1 The effective date was originally listed as May 25, 2022, but was corrected to reflect an effective date of March 30, 2021 by order dated February 16, 2023. See D.I. 21. 2 D.I. 19. 3 Id. 2 sentence.” (emphasis added). Finally, under Rule 35(b), the Court may consider

reducing the term or conditions of partial confinement or probation at any time.

4. By Order dated February 17, 2023, the Court Denied the First

Reduction Motion as untimely because it was filed more than 90 days after his

sentencing.4 Additionally, the Court found that Velez failed to establish

extraordinary circumstances for his untimely Rule 35(b) motion.5 Finally, the Court

noted that even if the Court could consider the merits, the First Reduction Motion

did not state a basis to reduce the sentence. Velez shot his victim in the chest when

the victim attempted to purchase marijuana from Velez.6 The victim survived due to

the skill of the medical providers. Velez did not appeal the denial of the First

Reduction Motion.

5. In his Second Reduction Motion, Velez requested that his Level IV

sentence be modified to Level III, with GPS monitoring and conditions of

participation in substance abuse counseling and mental health evaluation and

treatment. In support of his motion, Velez asserted that he: is remorseful for his past

criminal behavior; had no prior arrests; has successfully completed an anger

management program; is working on attaining a G.E.D.7; has displayed impeccable

4 D.I. 20, ¶ 4. 5 Id., ¶ 5. 6 Id. 7 The record reflects that Velez graduated from high school in 2020. D.I. 17. 3 behavior while incarcerated; has a stable support system upon his release; and now

has a 10 month-old daughter. Velez asserted that he has employment upon his

release driving a van for special needs children, which will require him to drive into

Pennsylvania. This, he said, would be prohibited by Level IV supervision and,

accordingly, he would be prevented from fulfilling his financial obligations to his

child.

6. The bar to considering repetitive requests for modification of a sentence

is absolute.8 This procedural bar applies even when the subsequent motion requests

a reduction or modification of a term of partial confinement or probation.9 Because

Velez previously filed his First Reduction Motion, the Court did not consider the

merits of the Second Reduction Motion and denied it on October 26, 2023.10

7. Even if the Court had considered the merits of the Second Reduction

Motion, the Court ruled that it would not be granted. Velez’s Level IV is subject to

the DOC’s discretion based on its assessment at the time Velez is ready for release

8 State v. Burton, 2020 WL 3057888, at *2 (Del. Super. Ct. June 5, 2020) (The bar to considering repetitive motions has no exceptions). See also Jenkins v. State, 954 A.2d 910, 2008 WL 2721536, at *1 (Del. 2008) (TABLE) (affirming the Superior Court’s denial of defendant’s Rule 35(b) motion for modification where Rule 35(b) “prohibits the filing of repetitive sentence reduction motions.”); Morrison v. State, 846 A.2d 238, 2004 WL 716773, at *2 (Del. 2004) (TABLE) (finding that defendant’s Rule 35(b) motion for modification “was repetitive, which also precluded its consideration by the Superior Court.”). 9 Id. 10 D.I. 24. 4 from Level V. Velez could be placed on work-release, among other options. Thus,

his request was premature. Further, the Court ruled, the DOC is in a better position

to determine what conditions would be appropriate. The Court found that Velez’s

sentences are appropriate. No additional information had been provided to the Court

that would warrant a reduction or modification of these sentences.

8. On January 3, 2024, Velez filed the Third Reduction Motion. He makes

the same arguments as he made in the previous motions. He feels that it is unfair for

the DOC to have discretion over his Level IV sentence. The motion is denied as

repetitive. The Court continues to find that Velez’s sentences are appropriate. No

additional information had been provided to the Court that would warrant a reduction

or modification of these sentences.

March 1, 2024

/s/Kathleen M. Miller Judge Kathleen M. Miller