§ 4217 — Jurisdiction over sentence retained; sentence modification process

Delaware § 4217

• Jurisdiction: Delaware
• Title: 11
• Part: Criminal Procedure Generally
• Ch. 42: CLASSIFICATION OF OFFENSES; SENTENCES

Text

(a) (1) For purposes of this section, “person” means an individual serving an aggregate sentence of incarceration at Level V in excess of 1 year.

(2) If a court imposes an aggregate sentence of incarceration at Level V in excess of 1 year, the court retains jurisdiction over the person to modify the sentence to reduce the level of custody or time to be served under this section.

(3) A person may apply for a sentence modification under this section if any of the following apply:

a. The application for a sentence modification is based solely on the person’s serious medical illness or infirmity.

b. The person is 60 years of age or older, has served at least 15 years of the originally imposed Level V sentence, and the application for sentence modification is based solely on the person’s rehabilitation.

c. The person has served at least 25 years of the originally imposed Level V sentence and the application for sentence modification is based solely on the person’s rehabilitation.

(4) A person who is eligible to apply for a sentence modification under paragraph (a)(3) of this section may apply for the sentence modification even if the person is sentenced to a statutorily mandated term of incarceration at Level V that is imposed for a conviction of an offense under this or another title.

(5) Except as provided in paragraphs (a)(3) and (a)(4) of this section, a person is not eligible for a sentence modification under this section if any of the following apply:

a. The person is serving a sentence of incarceration at Level V imposed for a conviction of a Title 11 violent felony under § 4201(c) of this title and has not yet served ½ of the originally imposed Level V sentence.

b. The person is serving a statutorily mandated term of incarceration at Level V for a conviction of any offense under this title and has not yet served all of the statutorily mandated portion of the Level V sentence.

(b) (1) The court may modify the person’s sentence if the court finds all of the following:

a. The court is authorized under subsection (a) of this section to consider the person for a sentence modification.

b. Good cause for a sentence modification.

c. The release of the person does not constitute a substantial risk to any of the following:

1. The community.

2. A victim of, or witness to, an offense that is the subject of the sentence modification.

3. The person’s own self.

(2) An application for sentence modification may be filed under this section by any of the following:

a. The person, or the person’s attorney, as provided under paragraph (a)(3) or (a)(5) of this section.

b. The Department of Correction (“Department”), the person, or the person’s attorney, as provided under subsection (d) of this section.

c. The Department, the person, or the person’s attorney, at any time other than as provided under subsection (d) of this section, if the basis for the application is the person’s serious medical illness or infirmity.

(3) a. Except as provided under paragraph (b)(3)b. of this section, an application must include a copy of the Department’s written statement required under paragraph (d)(2)b. or (d)(3)a. of this section.

b. An application filed under paragraph (a)(3)a. of this section is not required to include a copy of the Department’s written statement required under paragraph (d)(2)b. or (d)(3)a. of this section.

(4) The court’s review of an application for sentence modification filed under this section shall include the court’s review of the facts of an offense that is the subject of the sentence modification, including the underlying circumstances and nature of the offense, the felony classification of the offense, the length of the underlying sentence, and the court’s finding as to all of the following:

a. The person’s present likelihood of posing, and ability to pose, a substantial risk to any of the following:

1. The community.

2. A victim of, or witness to, an offense that is the subject of the sentence modification.

3. The person’s own self.

b. For an application for a sentence modification based on rehabilitation, the person’s participation in programs during incarceration, including drug or alcohol counseling or treatment, education, or employment.

c. For an application for a sentence modification based on serious medical illness or infirmity, all of the following:

1. The person’s diagnosis and likelihood of recovery.

2. The ability of the Department to meet the medical needs of the person.

3. The impact that the person’s continued incarceration may have on the general provision of medical care within the Department.

(5) The court shall state on the record the court’s findings under paragraphs (b)(1) and (b)(4) of this section and the court’s rationale for granting or denying the application for sentence modification.

(6) The court may summarily dismiss an application for a sentence modification for any of the following reasons:

a. If the person is not eligible for a sentence modification under subsection (a) of this section.

b. If the person submits a subsequent application before the expiration of the period determined by the court under paragraph (e)(4) or (e)(5) of this section.

c. If the person’s application does not include a copy of the Department’s written statement, as required under paragraph (b)(3) of this section.

d. If the court determines summary dismissal is warranted.

(7) A person applying for sentence modification under this section has the right to counsel.

a. On the Department’s completion of the eligibility review under paragraph (d)(1) of this section, the Department shall provide the person with information regarding the person’s right to counsel under this section.

b. The person may retain a private attorney at the person’s expense.

c. The person may request that the Court refer the person to the Office of Defense Services for representation. The Court shall refer the person to the Office of Defense Services if the Court does not summarily dismiss the person’s application under paragraph (b)(6) of this section.

d. The person may proceed without an attorney only as provided under court rules.

(8) The Department shall provide the person, or the person’s attorney of record, with access to any information in the possession of the Department reasonably necessary for the person’s application for a sentence modification.

(9) The person, or the person’s attorney of record, may supplement or amend an application for a sentence modification filed by the Department or the person.

(10) A party filing an application for sentence modification under this section must provide a copy of the application to the Department of Justice.

(11) The court may adopt rules to implement this section. The rules should provide for a person to proceed without an attorney with permission of the court.

(c) For purposes of this section:

(1) “Good cause” includes rehabilitation of the person, serious medical illness or infirmity of the person, and prison overcrowding.

(2) “Prison overcrowding” means the number of individuals who are incarcerated exceeds the operating capacity of a correctional facility that can be reasonably accommodated based on design, staffing, available programs, and services.

(3) “Rehabilitation” means the process of restoring a person to a useful and constructive place in society especially through some form of vocational, correctional, or therapeutic training.

(4) “Serious medical illness or infirmity” includes all of the following:

a.Cognitively incapacitated. —

As used in this paragraph (c)(4)a., “cognitively incapacitated” means suffering from a cognitive condition, such as dementia, that greatly impairs activities of daily living such as feeding, toileting, dressing, and bathing and renders incarceration of a person nonpunative and nonrehabilitative.

b.Permanently physically incapacitated.—

As used in this paragraph (c)(4)b., “permanently physically incapacitated” means suffering from any of the following:

1. A physical condition caused by injury, disease, or illness, such as a persistent vegetative state, that, to a reasonable degree of medical certainty, permanently and irreversibly physically incapacitates the person to the extent that the person needs help with most activities of daily living, such as feeding, toileting, dressing, and bathing, or that no significant physical activity is possible.

2. An incurable, progressive condition that substantially diminishes the person’s capacity to function in a correctional setting.

c.Severely ill.—

As used in this paragraph (c)(4)c., “severely ill” means suffering from a significant and permanent or chronic physical or mental condition that meets all of the following:

1. Requires extensive medical or behavioral health treatment with little to no possibility of recovery.

2. Significantly impairs rehabilitation.

d.Terminally ill.—

As used in this paragraph (c)(4)d., “terminally ill” means suffering from a condition caused by disease, illness, or injury, except self-inflicted injury, which, to a reasonable degree of medical certainty will lead to profound functional, cognitive, or physical decline, and likely will result in death within 18 months.

(d) (1) For each person, the Department shall biennially determine all of the following:

a. If the person may apply for a sentence modification under paragraph (a)(3) of this section or is not ineligible for a sentence modification under paragraph (a)(5) of this section.

b. Whether the Department recommends the person for a sentence modification. For the Department to recommend a person for a sentence modification, the Department must find the requirements of paragraphs (b)(1)b. and (b)(1)c. of this section are met.

(2) If the Department recommends a sentence modification, the Department, with the consent of the person, shall do all of the following:

a. File an application for sentence modification with the court.

b. Include with the application filed under paragraph (d)(2)a. of this section a written statement of the satisfied requirements of this section that form the Department’s basis for recommending the sentence modification.

c. Provide notice of the application filed under paragraph (d)(2)a. of this section to the person, the person’s attorney of record, and, if the attorney of record is unavailable to receive notice, the Office of Defense Services.

(3) If the Department does not recommend a sentence modification, the Department shall do all of the following:

a. State in writing the Department’s reasons for not recommending a sentence modification, including the unsatisfied requirements of this section that form the Department’s basis for not recommending the sentence modification.

b. Provide the writing required under paragraph (d)(3)a. of this section to the person, the person’s attorney of record, and, if the attorney of record is unavailable to receive notice, the Office of Defense Services.

(4) If the Department provides notice under paragraph (d)(3) of this section, the person or the person’s attorney may file an application for sentence modification with the court on a form provided by the court if the person meets the eligibility criteria established under paragraph (a)(3) or (a)(5) of this section. The person or the person’s attorney shall attach a copy of the Department’s reasons for not recommending a sentence modification.

(e) (1) On receipt of an application for sentence modification, the court may grant or deny the application or may request additional information.

(2) If the application for sentence modification is based on the person’s serious medical illness or infirmity, the court may require the Department to submit a medical release plan for the person. The medical release plan may include all of the following:

a. The proposed course of treatment.

b. The proposed site for treatment and post-treatment care.

c. The insurance program in place, which must include the person’s eligibility for enrollment in commercial insurance, Medicare, or Medicaid, or the person’s access to other adequate financial resources to cover the cost of care after release, including those under existing partnerships with agencies or organizations.

d. Any other information requested by the court.

(3) The court may not grant the application for sentence modification without first providing the Department of Justice and the victim of an offense that is the subject of the application with a reasonable period of time to be heard, in writing or in person, on the application.

(4) Except as provided under paragraph (e)(5) of this section, if the court denies an application for sentence modification because the court finds the person constitutes a substantial risk under paragraph (b)(1)c. of this section, or because the court finds that the application lacks good cause, the person who is the subject of the denied application may not be the subject of a subsequent application for sentence modification for a period determined by the court not to exceed 3 years from the date of the denial.

(5) If the court denies an application for sentence modification based on a person’s serious medical illness or infirmity, the person may submit a subsequent application if at least 60 days have passed since the date of the court’s denial and if the application demonstrates a material change in the person’s circumstances.

(f) [Repealed.]

(g) This section may not be construed to limit the court’s ability to modify a sentence within the scope of the court’s duly adopted rules.

(h) The Department may adopt regulations to implement this section. The Department may not impose additional restrictions, exclusions, or eligibility requirements for persons seeking sentence modification under this section.

(i)Reporting requirements.—

(1) The Statistical Analysis Center shall annually prepare a report containing all of the following information provided to the Statistical Analysis Center by the following state agencies:

a. From the Department, aggregated information including all of the following:

1. The number of persons who the Department determines under paragraph (d)(1)a. of this section are eligible for a sentence modification, with demographic data including race or ethnicity, gender, age, and correctional facility.

2. The number of applications submitted to the court by the Department under paragraph (d)(2) of this section and the basis for the application, with demographic data including race or ethnicity, gender, age, and correctional facility.

3. The number of persons for whom the Department did not recommend a sentence modification under paragraph (d)(3) of this section and a general reason for the Department’s decision, with demographic data including race or ethnicity, gender, age, and correctional facility.

4. The number of persons released from Level V custody under this section and the good cause on which the application is based, with demographic data including race or ethnicity, gender, age, and correctional facility.

5. Information on serious medical illness and infirmity experienced by persons incarcerated at the Department’s correctional facilities, including all of the following:

A. The number of persons currently receiving full-time 1-on-1 medical care or assistance with activities of daily living within the Department’s correctional facilities and whether that care is provided by a medical practitioner or another individual, along with the facilities at which the persons are incarcerated.

B. The number of persons who spent more than 1 month in outside hospital care during the previous year and the persons’ home correctional facility.

C. Demographic data, including race or ethnicity, gender, age, and correctional facility, for each person under paragraphs (i)(1)a.5.A. and (i)(1)a.5.B of this section.

b. 1. From the courts, all of the following:

A. The number of persons granted a sentence modification under this section.

B. The number of persons denied a sentence modification on the merits under this section.

C. The number of persons whose application for sentence modification is summarily dismissed under paragraph (b)(6) of this section.

2. The Statistical Analysis Center shall report the data provided by the courts and use the data provided by the courts to report aggregated demographic data including race or ethnicity, gender, age, and correctional facility, and the good cause on which each application is based.

(2) The Statistical Analysis Center shall annually publish the report on the Statistical Analysis Center’s website and submit the report to all of the following not later than October 1 of each year:

a. The Chair of the Senate Corrections and Public Safety Committee.

b. The Chair of the House of Representatives Corrections Committee.

c. The Chief Justice.

d. The Attorney General.

e. The Chief Defender.

f. The Director of the Division of Legislative Services.

g. The State Archivist.

h. The Governor.

Legislative History

67 Del. Laws, c. 130, § 14 ; 67 Del. Laws, c. 350, §§ 4-6 ; 69 Del. Laws, c. 311, §§ 1-3 ; 70 Del. Laws, c. 186, § 1 ; 77 Del. Laws, c. 362, §§ 1, 2 ; 85 Del. Laws, c. 76, § 2 ; 85 Del. Laws, c. 235, § 1