State v. Walker

• Court: Superior Court of Delaware
• Decided: June 22, 2016
• Docket: 0509010302A
• Status: Published

Opinion

SUPERIOR COURT OF THE STATE OF DELAWARE

JOHN A. PARKINS, JR. NEW CASTLE COUNTY COURTHOUSE JUDGE 500 NORTH KING STREET, SUITE 10400 WILMINGTON, DELAWARE 19801-3733 TELEPHONE: (302) 255-2584

June 22, 2016

Dwayne A. Walker SBI 354596 James T. Vaughn Correctional Center 1181 Paddock Road Smyrna, Delaware 19977

Re: State of Delaware v. Dwayne A. Walker I.D. No. 0509010302A

Dear Mr. Walker:

This letter refers to your latest motion for reduction of

sentence and your June 2, 2016 motion for transcripts of your

sentencing.

In 2005 you were indicted for murder in the first degree, one

count of possession of a deadly weapon during the commission of

a felony and one count of possession of a deadly weapon by a

person prohibited. You pleaded guilty to murder in the second degree and were sentenced to 30 years at Level 5 suspended after

20 years for decreasing levels of probation.1 You previously filed

motions for reduction of sentence which were denied on

December 29, 2006; January 24, 2014 and October 22, 2014.

Criminal Rule 35(b) of this court provides in pertinent part

that “[t]he court will consider an application made more than 90

days after the imposition of sentence only in extraordinary

circumstances . . . . The court will not consider repetitive

requests for reduction of sentence.” Your motion is barred for

both of these reasons. First, you have not shown extraordinary

circumstances. You efforts at rehabilitation are commendable,

but rehabilitation does not constitute an extraordinary

circumstance. The Delaware Supreme Court “has held that

participation in educational and rehabilitative programs, while

commendable, is not in and of itself sufficient to establish

extraordinary circumstances warranting review of an untimely

motion for sentence modification.”2 In your most recent motion

you wrote “with all due respect to my victim and loved ones, there 1 At the time of your crime you were on probation for three 2001 offenses, and your commission of the murder constituted a violation of those probations. The Judge who sentenced you for your murder-two conviction discharged you from the 2001 probations you were then serving. 2 Morgan v. State, 2009 WL 1279107 (Del.).

2 is nothing that I can do and no amount of level 5 time that I serve

can change that fact.” The judge who sentenced you was, of

course aware that no amount of time spent at Level 5 would bring

your victim back. Therefore this can hardly constitute an

“extraordinary circumstance.” Finally it is good that you are

remorseful for your crime, but remorse does not itself constitute

an extraordinary circumstance. Therefore your Rule 35 motion

for reduction or modification of your sentence is DENIED.

In a separate motion you request a copy of the transcript of

your sentencing. You state that you want the transcript for your

“personal files” and that you plan to use it in the future in a post-

conviction motion. You write:

He is now seeking appeals to reconsider certain issues relevant to his conviction and sentence. He believes there may have been errors that affect the outcome of the case. The sentencing transcripts are material, and hold information for reviewal.

Such a generalized explanation why you need the transcript does

not persuade the court one should be prepared for you. This

court has previously written:

An application for the production of transcripts is addressed to the sound discretion of this Court. The Constitution does not “require that an indigent be furnished every possible legal tool, no matter how speculative its value, and no matter how devoid of

3 assistance it may be.” Thus it is not an abuse of discretion to deny a request for transcripts where the transcripts are sought for the preparation of a Rule 61 motion for post conviction relief and it appears that the Rule 61 motion would be procedurally barred. Given the complete absence of any showing that Defendant has a colorable claim for post conviction relief that is not procedurally barred, his motion for probation of transcripts and other documents is DENIED.3

The same reasoning holds true in your case, and your request for

transcripts is DENIED.

Very truly yours,

John A. Parkins, Jr.

oc: Prothonotary

cc: Ipek K. Medford, DAG, Department of Justice, Wilmington, Delaware

3 State v. Bailey, 2009 WL 5192051 (Del. Super.)(footnotes omitted).