     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                          )
                                            )
                                            )
v.                                          )             ID No. 1212005871A
                                            )
JOEQWELL S. COVERDALE,                      )
                                            )
                         Defendant.         )


                             Submitted: July 31, 2014
                             Decided: August 11, 2014
                            Corrected: August 13, 2014* 1

        ORDER DENYING MOTION TO REDUCE SENTENCE

       This 11th day of August, 2014, upon consideration of the Defendant’s

Motion for Sentence Reduction and the record in this matter, it appears to

the Court that:

       (1)    On February 14, 2014, following a jury trial, Joeqwell S.

Coverdale was convicted of three counts of first degree robbery, one count

of second degree robbery, second degree conspiracy and four counts of




*       This corrected order is issued to clarify the bases for the Court’s finding of the
inapplicability of 79 DEL. LAWS c. 297 (2014) to Coverdale’s sentence, and to address
typographical errors in paragraph 6 of the original order. See Super. Ct. Crim. R. 36 (The
Court may correct its clerical errors at any time).
possession of a firearm during the commission of a felony (“PFDCF”). 2 On

June 13, 2014, Coverdale was sentenced to serve: (1) ten years at Level V,

suspended after three years for lesser levels of supervision for one robbery

first degree charge, and three years at Level V for each of the other two

robbery first degree charges; (2) three years at Level V for each of the four

PFDCF counts; (3) five years at Level V, suspended immediately for

robbery second degree; and (4) two years at Level V, suspended

immediately for conspiracy second degree. Coverdale’s 21-year term of

unsuspended imprisonment is comprised wholly of minimum terms of

incarceration that must be imposed and cannot be suspended.3

       (2)     Coverdale filed a direct appeal from his convictions and

sentence, which is now pending. 4




2
       DEL. CODE ANN. tit. 11, § 832 (2012) (robbery in the first degree); id. at § 831
(robbery in the second degree); id. at 512 (conspiracy in the second degree); id. at §
1447A (PFDCF).
3
        DEL. CODE ANN. tit. 11, § 832(b)(1) (2012) (“Notwithstanding any provisions of
this section or Code to the contrary, any person convicted of robbery in the first degree
shall receive a minimum sentence of . . . [t]hree years at Level V . . .”); id. at
§§ 1447A(b) & (d) (“A person convicted [of PFDCF] shall receive a minimum sentence
of 3 years at Level V . . . [and a]ny sentence imposed for a violation of this section shall
not be subject to suspension . . .”). See State v. Lennon, 2003 WL 1342983, at *1 (Del.
Mar. 11, 2003) (court must impose the statutory minimum for robbery first degree).
4
        See Not. of Appeal, Joeqwell S. Coverdale v. State of Delaware, No. 377, 2014
(Del. filed July 14, 2014).



                                            -2-
         (3)     Coverdale then filed the present motion under Superior Court

Criminal Rule 35(b) requesting reduction of his Level V term. 5 Coverdale

appears to seek application of recently amended provisions of 11 Del. C.

§ 3901, 6 suggesting they may be applied under Rule 35(b) to reduce his

overall term of incarceration by running certain of his sentences

concurrently. 7 He asks also that the Court defer ruling on his motion until

after disposition of his direct appeal.8

         (4)         The Court may consider such a motion “without presentation,

hearing or argument.” 9 And while the Court may defer decision of this

motion during the pendency of Coverdale’s appeal, the Court may also

decide the motion now. 10 The Court will decide this motion on the papers

filed.




5
       Super. Ct. Crim. R. 35(b) (providing that, under certain conditions, the Court may
reduce a sentence of imprisonment on an inmate’s motion).
6
       See 79 DEL. LAWS c. 297 (2014) (effective July 9, 2014; amends 11 Del. C.
§ 3901(d) to grant a sentencing judge discretion to impose either concurrent or
consecutive sentences for certain crimes).
7
         Def. Rule 35(b) Mot. at 1-2.
8
         Id. at 2.
9
         Super. Ct. Crim. R. 35(b).
10
         Id.



                                          -3-
       (5)    The intent of Superior Court Criminal Rule 35(b) has

historically been to provide a reasonable period for the Court to consider

alteration of its sentencing judgments. 11 Where a motion for reduction of

sentence is filed within 90 days of sentencing, the Court has broad

discretion to decide if it should alter its judgment. The reason for such a

rule is to give a sentencing judge a second chance to consider whether the

initial sentence is appropriate.12 But, while the Court has wide discretion to

reduce a sentence upon a timely Rule 35 application, the Court has no

authority to reduce or suspend the mandatory portion of any substantive

statutory minimum sentence. 13

        (6)   The Court was constrained to impose at least a 3-year

mandatory prison term for each first degree robbery charge 14 and at least a


11
       Johnson v. State, 234 A.2d 447, 448 (Del. 1967) (per curiam).
12
        See United States v. Ellenbogan, 390 F.2d 537, 541, 543 (2d Cir. 1968)
(explaining time limitation and purpose of then-extant sentence reduction provision of
Federal Criminal Rule 35, the federal analogue to current Superior Court Criminal Rule
35(b)); see also United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973) (Rule 35
allows sentencing court “to decide if, on further reflection, the original sentence now
seems unduly harsh” . . . such request “is essentially a ‘plea for leniency.’”) (citations
omitted).
13
      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.”) (emphasis in original).
14
       DEL. CODE ANN. tit. 11, § 832(b) (2012). See State v. Lennon, 2003 WL
1342983, at *1 (Del. March 11, 2003) (court must impose minimum for robbery first
degree; at the time of Lennon’s plea that was 2 years).

                                           -4-
3-year mandatory prison term for each PFDCF charge. 15 At Coverdale’s

sentencing, the Court was statutorily prohibited from ordering any of those

prison terms to run concurrently. 16 And, though Coverdale might argue

otherwise, the new provisions of § 3901(d) – enacted some 18 months after

his crimes and about a month after his sentencing – have no retroactive

effect. 17 But even if they did, under now-amended § 3901(d), the Court still

has no authority to impose concurrent sentencing for certain serious crimes.

Those crimes include robbery first degree and PFDCF. 18

        (7)     In turn, the Court must deny Coverdale’s motion to reduce his

sentence.



15
        DEL. CODE ANN. tit. 11, § 1447A(b) (2012).
16
       DEL. CODE ANN. tit. 11, § 3901(d) (2012) (“No sentence of confinement of any
criminal defendant . . . shall be made to run concurrently with any other sentence of
confinement imposed on such criminal defendant.”).
17
        State v. Jennings, Del. Super., ID Nos. 1203003795 & 1304023113, Vaughn, P.J.
(Aug. 11, 2014) (rejecting the argument that recently amended § 3901(d) provisions that
might allow concurrent sentencing for some crimes could be applied retroactively); State
v. Ismaaeel, 840 A.2d 644, 654 (Del. Super. Ct. 2004), aff’d, 2004 WL 1587040 (Del.
July 25, 2004) (sentencing scheme in effect when defendant’s drug offenses were
committed applied because the subsequent statutory amendments applied prospectively
only); State v. Nixon, 46 A.2d 874, 875 (Del. Gen. Sess. 1946) (“Retrospective operation
is not favored by the Courts, and a law will not be construed as retroactive unless the Act
clearly, by express language or necessary implication, indicates that the legislature
intended a retroactive application.”) (citations omitted).
18
          DEL. CODE ANN. tit. 11, § 3901(d) (Supp. 2014) (“. . . no sentence of confinement
. . . shall be made to run concurrently with any other sentence of confinement imposed
. . . for any conviction of . . . Robbery in the first degree [or] . . . Possession of a firearm
during the commission of a felony . . . .”).

                                              -5-
      NOW, THEREFORE, IT IS ORDERED that Joeqwell S.

Coverdale’s motion for reduction of sentence is DENIED.



                                          /s/ Paul R. Wallace
                                          Paul R. Wallace, Judge


Original to Prothonotary

cc:   Caterina Gatto, Deputy Attorney General
      John S. Malik, Esquire
      Mr. Joeqwell S. Coverdale, pro se
      Investigative Services Office




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