State v. Wing

• Court: Superior Court of Delaware
• Decided: April 8, 2024
• Docket: 2307004229
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) ID No. 2307004229 ) JAMAL S. WING, ) ) Defendant. ) )

Date Submitted: April 5, 2024 Date Decided: April 8, 2024

ORDER

Upon consideration of Defendant Jamal S. Wing’s (“Wing”) Motion for

Sentence Modification (“Motion”),1 Superior Court Criminal Rule 35(b), statutory

and decisional law, and the record, IT APPEARS THAT:

(1) On February 14, 2024, Wing pled guilty to Assault Second Degree

(IN23-07-0899) and Driving Under the Influence (“DUI”) (IN23-07-0902).2 That

same day, Wing was sentenced as follows: for Assault Second Degree, 8 years at

Level V, with credit for 221 days previously served, suspended after 12 months for

1 year Level III; and for DUI, 2 years at Level V, suspended after 3 months for 1

year at Level III.3

1 D.I. 14. 2 D.I. 12. 3 D.I. 13. Wing’s probation is to run concurrently and his Level V sentence for DUI is pursuant to a mandatory minimum. Id. (2) Wing filed the instant Motion on March 28, 2024.4 In his Motion, Wing

requests that the Court modify the remainder of his Level V sentence to either Level

IV or Level III GPS.5 In support of his Motion, Wing states that his father has

received a terminal diagnosis and is in hospice.6

(3) The State opposes Wing’s Motion.7 The State maintains that Wing’s

Level V sentence remains appropriate as “a necessary measure to protect the public

from the threat posed by [Wing’s] actions and to deter future recidivism.”8

(4) Superior Court Criminal Rule 35(b) governs motions for modification

or reduction of sentence.9 The purpose of Rule 35(b) is to “provide a reasonable

period for the Court to consider alteration of its sentencing judgments.”10 Rule 35(b)

contains procedural bars for timeliness and repetitiveness.11 Under Rule 35(b), the

“[C]ourt may reduce a sentence of imprisonment on a motion made within 90 days

after the sentence was imposed.”12 However, the Court cannot modify the minimum

mandatory portion of a sentence.13

(5) Wing’s Motion is not procedurally barred. His Motion was filed on

4 D.I. 14. 5 Id. 6 Id. 7 D.I. 16. 8 Id. 9 Super. Ct. Crim. R. 35(b). 10 State v. Remedio, 108 A.3d 326, 331 (Del. Super. 2014). 11 See Super. Ct. Crim. R. 35(b). 12 Id. 13 11 Del. C. § 4204(d); D.I. 27. March 28, 2024, within 90 days of his sentencing date, and is therefore timely.14

Also, this is Wing’s first motion for sentence modification and thus not barred as

repetitive.

(6) Rule 35(b) places the burden of proof on “the movant to establish cause

to modify a lawfully imposed sentence.”15 Although Rule 35(b) does not set forth

specific criteria which must be met before the Court may grant a Rule 35(b) motion,

“common sense dictates that the Court may modify a sentence if present

circumstances indicate that the previously imposed sentence is no longer

appropriate.”16

(7) Wing’s sentence of 3 months at Level V for DUI is a mandatory

minimum sentence and the Court has no authority to reduce it.17

(8) This is Wing’s third DUI offense.18 Wing drove while impaired and

assaulted and injured two Delaware State Police officers during his arrest.19 He also

bit and seriously injured a law enforcement K9.20

(9) Based on the record, the Court finds Wing’s sentence remains

appropriate for all the reasons stated at the time of sentencing.

14 D.I. 12, D.I. 14. 15 State v. Joseph, 2018 WL 1895697, at *1 (Del. Super. Apr. 11, 2018). 16 State v. Bailey, 2017 WL 8787504, at *1 (Del. Super. Oct. 3, 2017). 17 See 21 Del. C. § 4177(d)(3). 18 See D.I. 16. 19 Id. 20 Id. NOW, THEREFORE, IT IS HEREBY ORDERED that Jamal S. Wing’s

Motion for Sentence Modification is DENIED.

IT IS SO ORDERED.

/s/ Jan R. Jurden Jan R. Jurden, President Judge

cc: Original to Prothonotary Isaac Rank, DAG Jamal S. Wing (SBI # 00254817)