IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
)
v. ) Case ID Nos.: 1704012772
) 1705002012
)
GARY STEADMAN )
)
Defendant. )
ORDER

AND NOW TO WIT, this 14th day of December, 2018, upon consideration
of Defendant Gary Steadman (“Defendant”)’s Motion for Modification/Amendment
of Sentence under Superior Court Criminal Rule 35, the sentence imposed upon
Defendant and the record in this case, it appears to the Court:

l. On January 5, 2018, Defendant pled guilty to three felonies for drug
dealing. Speciflcally, he accepted a plea to two counts of Drug Dealing Tier 4
Heroin and one count of Drug Dealing Tier 2 Heroin. The three counts of Drug
Dealing relate to separate offenses that took place on separate occasions, alleged to
have occurred on March 4, 2017 (Tier 2), March 23, 2017 (Tier 4), and May 2, 2017
(Tier 4).

2. On May 25, 2018, on each count of Drug Dealing Tier 4, Defendant
Was sentenced to 25 years, suspended after the minimum mandatory of two years,

followed by various levels of probation. As to Drug Dealing Tier 2, Defendant was

sentenced to 15 years at Level V, suspended after one year, also followed by
probation. The Level V sentences are ordered to run consecutively for a total
unsuspended five years of incarceration

3. Defendant files the present motion under Superior Court Criminal Rule
35(b) requesting reduction of his Level V term, and seeks to have his sentences run
concurrently under ll Del. C. § 3901(d).l Defendant argues reduction is warranted
because he: (l) has remorse for his actions; (2) has “employment” opportunities with
his CDL (commercial driver’s license) and a strong work history; (3) had
“ineffective counsel” raising issues related to an investigation by the Delaware Bar
Association regarding his defense counsel; and (4) claims he was improperly re-
indicted and sentenced twice for the same crime such that the State failed to merge
his charges under 16 Del C. § 4766.2

4. The Court first examines Defendant’s fourth ground for relief under
Rule 35(a) regarding his claim that he was illegally sentenced. Under Rule 35(a),
the Court “may correct an illegal sentence at any time.”3 Rule 35(a) applies in
limited situations where the sentence imposed: exceeds its statutorily-authorized

limits, violates double jeopardy, “is ambiguous with respect to the time and manner

 

l Def.’s Mot. at 2.
2 ld.

3 DEL. SUPER. CT. CRIM. R. 35(a). Defendant’s Motion was filed on August lO, 2018.

in which it is to be served, is internally contradictory, omits a term required to be
imposed by statute, is uncertain as to the substance of the sentence, or is a sentence
which the judgment of conviction did not authorize.”4 Under Rule 35(a), the
“narrow function” is to correct illegal sentences, “not to re-examine errors occurring
at the trial or other proceedings prior to the imposition of sentence.”5

5. The record is clear that Defendant was not illegally sentenced. The
State confirmed that Defendant was not re-indicted, but rather indicted once on July
24, 2017.6 As charged in the indictment, the first count of Drug Dealing Tier 4
alleged that the offense occurred on March 23, 2017, and the second on May 2,
2017.7 Thus, the sentences do not implicate double jeopardy as Defendant was
indicted on, pled to, and sentenced on two separate and distinct counts of Drug
Dealing that occurred on separate dates, not required to be merged under 16 Del. C.
§ 4766. Thus, Defendant does not establish a claim for relief under rule 35(a) where
his sentence does not exceed a statutory maximum, is neither ambiguous nor

contradictory, and does not violate double jeopardy.

 

4 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998) (citations omitted). See, e.g., Ellerbe v.
State, 155 A.3d 1283, 2017 WL 462144, at *1 (Del. Feb. 2, 2017) (TABLE).

5 Brittingham, 705 A.2d at 578 (quoting Hill v. Um`l‘ed States, 368 U.S. 424, 430 (1962)).
6 State’s Resp. 11 10.

7 D.I. #3 (July 24, 2017) (IN17-05-0628 or Count VII and INl7-05-1391 or Count XII).

6. Defendant’s third ground for relief under Rule 35(a) claims ineffective
assistance of counsel. This ground is not cognizable under Rule 35(a) because it
falls outside the limited scope and purpose of Rule 35.8 An ineffective assistance of
counsel claim may be brought under Rule 61 as a post-conviction motion but will
not be considered as a basis for modification/reduction of sentence under Rule 35.9

7. Lastly, Defendant claims remorse and employment opportunities are
sufficient reasons why this Court Should modify his Level V time to run concurrently
rather than consecutively, as ordered. Under Rule 35(b), the Court “may reduce a
sentence of imprisonment on a motion made within 90 days after the sentence is
imposed.”'O Under Rule 35(b), a sentence may be reduced, “without regard to the
alter its judgment[]” when a Rule 35(b) motion is timely filed within ninety days.ll
The purpose for this rule “is to give a sentencing judge a Second chance to consider

whether the initial sentence is appropriate.”12

 

8 Cochran v. State, 935 A.2d 255, 2007 WL 2812870, at *2 (Del. Sept. 28, 2007) (TABLE)
(citing Brittingham, 705 A.2d 578). See also Glenn v. State, 829 A.2d 936, 2003 WL 21714083,
at *1 (Del. July 21, 2003) (TABLE) (citations omitted).

9 Cochran, 2007 WL 2812870, at *2. (holding that Superior Court properly denied ineffective
assistance of counsel claim brought under Rule 35(a)).

‘° DEL SUPER. CT. CRIM. R. 35(b).

ll State v. Johnson, 2015 WL 3880586, *1 (Del. Super. June 24, 2015) (citing Hewett v. State,
2014 WL 502()25l, at *l (Del. OCt. 7, 2014)).

12 State v. Bradley, 2015 WL 3863243, at *2 (Del. Super. June 22, 2015) (quoting State v.
Remedio, 108 A.3d 326, 331 (Del. Super. Dec. 31, 2014)).

8. Here, Defendant timely filed his Motion so it is not procedurally barred
by the ninety-day rule.13 Also, he is correct that 11 Del. C. § 3901(d)14 now allows
the imposition of some offenses that carry minimum mandatory incarceration to be
served concurrently. Nevertheless, Defendant’s remaining grounds for this relief are
without merit.

9. This sentence was imposed pursuant to a Plea Agreement between
Defendant and the State.15 Defendant acknowledged in his Truth-In-Sentencing
Guilty Plea Form that the total consecutive maximum penalty he faced was sixty-
five years of incarceration; two to twenty-five for each Drug Dealing Tier 4 and up
to fifteen years for Drug Dealing Tier 2. The record establishes that he understood
that he was pleading to two separate counts of Drug Dealing Tier 4, which carried a
minimum mandatory incarceration period of two years for each, and the plea
agreement signed by Defendant expressly states that the incarceration periods would
be served consecutively. As a result of the plea agreement, Defendant also obtained

the benefit that the State dismissed his then pending fourteen charges. Although

 

13 Defendant’s Rule 35 motion was filed by the Prothonotary on August 10, 2018, which is
within 90 days of his May 25 , 2018 sentencing

1411 Del. C. §3901(d)(2014).

15 DEL. SUPER. CT. CRIM. R. ll(e).

there may have been some issue related to one pending matter, the Court has
confirmed that there are no pending matters

10. Remorse and employment prospects are not sufficient bases for relief
under Rule 35(b). And although 11 Del. C. § 3901(d) now gives the Court the
discretion to impose Defendant’s sentences to be served concurrently, no
information was provided to the Court that would warrant a modification of
Defendant’s sentence at this time. Defendant’s sentence is appropriate for the
reasons stated above and at the time of sentencing

For the foregoing reasons, Defendant’s Motion for Modification of his
Sentence is DENIED.

/""

ViviM/Medim
Judge

oc: Prothonoatry

cc: Defendant
Joseph Benson, Esquire
Amanda Diliberto, Deputy Attorney General
Office of Investigative Services

