State v. Welch

• Court: Superior Court of Delaware
• Decided: May 27, 2020
• Docket: 1208013045
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) ID No. 1208013045 ) SHAWN C. WELCH, ) ) Defendant. )

Date Submitted: May 11, 2020 Date Decided: May 27, 2020

ORDER

Upon consideration of Defendant’s Motion for Sentence Modification

(“Motion”), Superior Court Criminal Rule 35, statutory and decisional law, and the

record in this case, IT APPEARS THAT:

1. On March 11, 2013, Defendant pled guilty to Sexual Abuse of a Child

by a Person in a Position of Trust First Degree.1 By Order dated June 6, 2017,

effective August 16, 2012, Defendant was sentenced to 15 years at Level V,

suspended after 12 years, for 3 years at Level IV Home Confinement, suspended

after 6 months, for 2 years and 6 months at supervision Level III.2 The first 10 years

of this sentence is a mandatory term of incarceration pursuant to 11 Del. C. § 778.3

1 D.I. 7. 2 D.I. 20 (Amended ASOP Order signed and filed on June 19, 2017). 3 Id. 2. On May 11, 2020, Defendant filed the instant Motion, asking the Court

to suspend the remaining Level V portion of his sentence for an additional 6 months

at Level IV Home Confinement followed by 4 years and 6 months at supervision

Level III.4 In support of his Motion, Defendant cites to: (1) his participation in a

sex offenders program and mental health treatment program; (2) his medical

condition and his vulnerability to COVID-19 due to such medical condition; 5 and

(3) receipt of his high school diploma.6

3. Superior Court Criminal Rule 35 governs motions for modification of

sentence. “Under Rule 35(b), a motion for sentence modification must be filed

within ninety days of sentencing, absent a showing of ‘extraordinary

circumstances.’”7

4. Defendant filed this Motion well beyond the 90-day limit, and therefore

the Motion is time-barred. The Court will consider an application made more than

90 days after the imposition of sentence only in “extraordinary circumstances,” or

pursuant to 11 Del. C. § 4217. Delaware law places a heavy burden on the moving

party to establish extraordinary circumstances in order to “uphold the finality of

4 D.I. 21. 5 Defendant states he has been diagnosed with white matter disease. 6 D.I. 21. 7 Croll v. State, 2020 WL 1909193, at *1 (Del. Apr. 17, 2020) (TABLE) (affirming the Superior Court’s denial of a motion for modification of sentence where the motion was repetitive and filed beyond the 90-day limit); see Hewett v. State, 2014 WL 5020251, at *1 (Del. Oct. 7, 2014) (“When a motion for reduction of sentence is filed within ninety days of sentencing, the Superior Court has broad discretion to decide whether to alter its judgment.”). 2 sentences.”8 “Extraordinary circumstances” excusing an untimely Rule 35(b)

motion are circumstances 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.”9 Mitigating factors that could have been presented at sentencing,

exemplary conduct, or successful rehabilitation while incarcerated does not

constitute “extraordinary circumstances.”10 The Court does not find Defendant has

established the existence of any extraordinary circumstances in connection with his

Motion.

5. Defendant asks the Court to suspend a mandatory portion of his

sentence for Sexual Abuse of a Child. Rule 35(b) provides no authority for a

reduction or suspension of the mandatory portion of a substantive minimum

sentence.11 Moreover, Defendant’s sentence is appropriate for all the reasons stated

at the time of sentencing. 12

8 State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015). 9 State v. Culp, 152 A.3d 141, 145 (Del. 2016) (internal quotations omitted) (quoting Diaz, 2015 WL 1741768, at *2). 10 See id. at 145–46 (recognizing that participation in educational and rehabilitative prison programs is commendable, but does not by itself constitute “extraordinary circumstances” for purposes of Rule 35(b)). 11 State v. Sturgis, 947 A.2d 1087, 1092 (Del. 2008) (“Superior Court Rule of Criminal Procedure 35(b) provides no authority for a reduction or suspension of the mandatory portion of a substantive statutory minimum sentence.”). 12 See D.I. 11, 20. The sentence at issue takes into account the following aggravating factors: (1) Defendant blamed the victim; (2) Defendant blamed his strained marital status relationship; and (3) the age and vulnerability of the victim. 3 NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s

Motion for Sentence Modification is DENIED.

Jan R. Jurden Jan R. Jurden, President Judge

Original to Prothonotary

cc: Shawn C. Welch (SBI# 00344638) Susan G. Schmidhauser, DAG