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

STATE OF DELAWARE                     )
                                      )
      v.                              )      Case I.D. No. 0812004092A
                                      )
ERIC JOHNSON,                         )
                                      )
            Defendant.                )

                          Date Submitted: April 21, 2015
                           Date Decided: June 24, 2015

                ORDER DENYING DEFENDANT’S MOTION
                    FOR RELIEF FROM JUDGMENT

   This 24th day of June 2015, upon consideration of the Motion for Relief from

Judgment pursuant to Superior Court Civil Rule 60(b) (“Motion”) filed by

Defendant, Eric Johnson; the applicable law; and the record in this case:

   1. Defendant was indicted in January 2009 for Burglary Second Degree and

      other offenses arising from the unlawful entry into the home of an

      acquaintance. On July 1, 2009, a Superior Court jury found Defendant

      guilty of Burglary Second Degree, Possession of a Firearm During the

      Commission of a Felony, Possession of Burglar’s Tools, and other offenses.

   2. On September 25, 2009, the Court sentenced Defendant—on the six

      offenses—to a total of twenty-three (23) years at Level V, suspended after

      fourteen (14) years followed by probation.

   3. On August 5, 2014, Defendant filed a Motion for Sentence Modification
       pursuant to Superior Court Criminal Rule 35 (“Rule 35 Motion”) arguing

       that his sentences should run concurrently rather than consecutively. On

       September 10, 2014, the Court denied Defendant’s Rule 35 Motion on the

       ground that Level V time imposed for certain violent offenses—including

       Burglary Second Degree and Possession of a Firearm During the

       Commission of a Felony—must be served consecutively.

    4. On April 21, 2015, Defendant filed the pending Motion seeking relief from

       the Court’s September 10, 2014 Order. Defendant argues that he committed

       a victimless crime; that the sentence imposed relies on unsupported factual

       findings; and that no exceptional circumstances warrant a consecutive

       sentence.    Defendant’s Motion seeks review and modification of his

       sentence and, therefore, the Court deems Defendant’s Motion as Defendant’s

       SECOND Rule 35 Motion.1

    5. Pursuant to Criminal Rule 35(b), the Court may reduce a sentence of

       imprisonment on a motion made within 90 days after the sentence is

       imposed. 2 The intent of Criminal Rule 35(b) has historically been to provide

       a reasonable period for the Court to consider alteration of its sentencing




1
  See Johnson v. State, 113 A.3d 1080 (Del. 2015) (TABLE) (affirming the Superior Court’s
decision to treat defendant’s Rule 60(b) motion as a Rule 35 motion
2
  Super. Ct. Crim. R. 35(b).
                                           2
       judgments. 3     Where a motion for reduction of sentence is filed, under

       Criminal Rule 35(b), within 90 days of sentencing, the Court has broad

       discretion to decide if it should alter its judgment.4 “The reason for such a

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

       initial sentence is appropriate.”5

    6. The sentence was imposed by Order dated September 25, 2009. Defendant

       filed the SECOND Rule 35 Motion more than 90 days after imposition of

       the sentence and is, therefore, 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   sentences.”6

       “Extraordinary circumstances” excusing an untimely Rule 35(b) motion

       were best described by former Chief Justice (then Justice) Steele as those

       which “specifically justify the delay;” are “entirely beyond a petitioner’s

       control;” and “have prevented the applicant from seeking the remedy on a

3
  Johnson v. State, 234 A.2d 447, 448 (Del. 1967) (per curiam).
4
  Hewett v. State, 2014 WL 5020251, at *1 (Del. Oct. 7, 2014) (“When, as here, 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.”).
5
  State v. Reed, 2014 WL 7148921, at *2 (Del. Super. Dec. 16, 2014) (citing United States v.
Ellenbogen, 390 F.2d 537, 541-43 (2d. Cir. 1968) (explaining the time limitation and purpose of
then-extant sentence reduction provision of Fed. R. Crim. P. 35, the federal analogue to current
Criminal Rule 35(b)).
6
  State v. Johnson, 2006 WL 3872849, at *3 (Del. Super. Dec. 7, 2006).
                                               3
       timely basis.” 7     Mitigating factors that could have been presented at

       sentence, exemplary conduct or successful rehabilitation while incarcerated

       does not constitute “extraordinary circumstances.” 8 The Court does not find

       the existence of any extraordinary circumstances in connection with

       Defendant’s SECOND Rule 35 Motion.

    7. The Court has denied a prior Rule 35 Motion by Order dated September 10,

       2014.     Pursuant to Criminal Rule 35(b), the Court will not consider

       repetitive requests for reduction or modification of sentence. Criminal Rule

       35(b) provides that “[t]he court will not consider repetitive requests for

       reduction of sentence.” 9       Unlike the 90-day jurisdictional limit with its

       “extraordinary circumstances” exception, the bar to repetitive motions has

       no exception. Instead, this bar is absolute and flatly “prohibits repetitive

       requests for reduction of sentence.” 10

    8. Defendant’s sentence is appropriate for all the reasons stated at the time of

7
  State v. Lewis, 797 A.2d 1198, 1205 (Del. 2002) (Steele, J., dissenting).
8
   State v. Liket, 2002 WL 31133101, at *2 (Del. Super. Sept. 25, 2002) (explaining that
exemplary conduct or successful rehabilitation during incarceration does not qualify as
“extraordinary circumstances” and relief for such achievements is more properly addressed to the
parole board). See also United States v. LaMorte, 940 F. Supp. 572, 578 (S.D.N.Y. 1996);
United States v. Arcaro, No. 89 Cr. 001, 1992 WL 73366, at *1 (S.D.N.Y. Apr. 1, 1992) (stating
that “[w]hile defendant’s educational endeavors in prison and his diligent performance of prison
job assignments are laudable accomplishments, they do not justify a reduction in sentence.”).
9
  Super. Ct. Crim. R. 35(b) (emphasis added).
10
   Thomas v. State, 2002 WL 31681804, at *1 (Del. Nov. 25, 2002). See also Jenkins v. State,
2008 WL 2721536, at *1 (Del. July 14, 2008) (explaining that Rule 35(b) “prohibits the filing of
repetitive sentence reduction motions.”); Morrison v. State, 2004 WL 716773, at *2 (Del. Mar.
24, 2004) (explaining that the “motion was repetitive, which also precluded its consideration by
the Superior Court.”).
                                               4
     sentencing. No additional information has been provided to the Court that

     would warrant a reduction or modification of this sentence.

  9. Accordingly, for the reasons stated above, this Court finds that Defendant

     has not demonstrated cause for the relief sought in the SECOND Rule 35

     Motion.


     NOW, THEREFORE, on this 24th day of June 2015, Eric Johnson’s

Motion for Relief from Judgment is hereby DENIED.

     IT IS SO ORDERED.

                                     Andrea L. Rocanelli

                                     ____________________________________
                                     The Honorable Andrea L. Rocanelli


Original to Prothonotary:
cc: Eric Johnson (SBI# 00308347)
      Investigative Services




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