       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                              )
                                                )
       v.                                       )           ID Nos. 1406013825,
                                                )                   1410019826
SCOTT M. MCFARLAND,                             )
                                                )
       Defendant.                               )

                              Date Submitted:       June 12, 2020
                              Date Decided:         July 1, 2020

                                           ORDER

       Upon consideration of Defendant’s Motion for Modification of Sentence

(“Motion”), Superior Court Criminal Rule 35, statutory and decisional law, and the

record in this case, IT APPEARS THAT:

       1.      On March 10, 2015, Defendant pled guilty to two counts of Robbery

First Degree, Burglary Second Degree, Robbery Second Degree, and Conspiracy

Second Degree.1 By Order dated November 17, 2015,2 effective October 28, 2014,

Defendant was sentenced as follows: for Robbery First Degree, IN14-11-0181, 10

years at Level V Inpatient Drug Treatment with credit for 19 days previously served,

suspended after 3 years and 6 months for Level IV Crest, suspended after successful

completion of Level IV Crest for 18 months at supervision Level III; 3 for Robbery

1
  ID No. 1406013825, D.I. 25; ID No. 1410019826, D.I. 10.
2
  ID No. 1406013825, D.I. 34; ID No. 1410019826, D.I. 17 (Modified ASOP Order signed and
filed on January 8, 2016).
3
  The first 3 years of this sentence is a mandatory term of incarceration pursuant to 11 Del. C. §
832.
First Degree, IN14-11-0552, 10 years at Level 5, suspended after 3 years and 6

months for 18 months at supervision Level III;4 for Burglary Second Degree, IN14-

09-1125, 8 years at Level V, suspended after 1 year for 18 months at supervision

Level III;5     for Robbery Second Degree, IN14-11-0184, 5 years at Level V,

suspended for 18 months at supervision Level III; and for Conspiracy Second

Degree, IN14-11-0556, 2 years at Level V, suspended for 1 year at supervision Level

III.6

        2.     On June 15, 2020, Defendant filed the instant Motion, asking the Court

to: (1) suspend his remaining Level V time for “Judge Butler’s reentry program;”

and (2) modify the Level IV portion of his sentence for Robbery First Degree, IN14-

11-0181, from Level IV Crest to Level IV Home Confinement or, in the alternative,

suspend the Level IV sentence in its entirety and immediately begin supervision at

Level III.7 In support of his Motion, Defendant cites: (1) his acceptance of

responsibility for his actions; (2) his successful completion of rehabilitative

programs while incarcerated; and (3) his desire to make amends with his family. 8

        3.     Superior Court Criminal Rule 35 governs motions for modification of



4
  The first 3 years of this sentence is a mandatory term of incarceration pursuant to 11 Del. C. §
832.
5
  The first year of this sentence is a mandatory term of incarceration pursuant to 11 Del. C. §
825 (2014).
6
  ID No. 1406013825, D.I. 31; ID No. 1410019826, D.I. 14. Probation is concurrent.
7
  ID No. 1406013825, D.I. 36; ID No. 1410019826, D.I. 19.
8
  Id.
sentence. Under Rule 35(b), a motion for sentence modification “must be filed

within ninety days of sentencing, absent a showing of ‘extraordinary

circumstances.’”9 Nevertheless, the Court will not consider repetitive requests for

reduction or modification of sentence. 10

       4.      First, this is Defendant’s second request for modification of his

sentences, and therefore, this Motion is barred as repetitive. 11

       5.      Second, with respect to Defendant’s request to suspend his Level V

time, this request was filed well beyond the 90-day limit, and therefore, it is 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.” 12

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

circumstances that “specifically justify the delay, are entirely beyond a petitioner’s

control, and have prevented the applicant from seeking the remedy on a timely




9
  Croll v. State, 2020 WL 1909193, at *1 (Del. Apr. 17, 2020) (TABLE) (affirming the Superior
Court’s denial of a motion for modification of sentence where the motion was repetitive and filed
beyond the 90-day limit); see Hewett v. State, 2014 WL 5020251, at *1 (Del. Oct. 7, 2014) (“When
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.”).
10
   Super. Ct. Crim. R. 35(b).
11
   ID No. 1406013825, D.I. 33, 36; ID No. 1410019826, D.I. 16, 19.
12
   State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015).
basis.”13 Mitigating factors that could have been presented at sentence, exemplary

conduct, or successful rehabilitation while incarcerated does not constitute

“extraordinary circumstances.”14 The Court does not find Defendant has established

the existence of any extraordinary circumstances in his Motion. Furthermore, the

DOC has not submitted an application pursuant to 11 Del. C. § 4217.

       6.      Third, the Court has no authority to reduce or suspend the mandatory

portion of any substantive minimum sentence. 15 The first 7 years of Defendant’s

Level V sentences for Robbery First Degree and Burglary Second Degree are

mandatory and cannot be reduced or suspended. 16

       7.      With respect to Defendant’s request to modify the Level IV portion of

his sentence in IN14-11-0181, this request is not time-barred, and therefore, the

Court has considered it.17 The Court finds Defendant’s sentences are appropriate for

all the reasons stated at the time of sentencing. 18 No additional information has been


13
   State v. Culp, 152 A.3d 141, 145 (Del. 2016) (internal quotations omitted) (quoting Diaz, 2015
WL 1741768, at *2).
14
   See id. at 145–46 (recognizing that participation in educational and rehabilitative prison
programs is commendable, but does not by itself constitute “extraordinary circumstances” for
purposes of Rule 35(b)).
15
   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.”).
16
   See 11 Del. C. §§ 832, 825 (2014).
17
   See Super. Ct. Crim. R. 35(b) (“The Court may . . . reduce the . . . the term or conditions of
partial confinement or probation, at any time.”).
18
   See ID No. 1406013825, D.I. 34; ID No. 1410019826, D.I. 17 (Modified ASOP Order signed
and filed on January 8, 2016). The sentences at issue take into account the following aggravating
factors: (1) Defendant’s undue appreciation of offense; (2) Defendant’s custody status at the time
of the offense; (3) Defendant’s severe escalation of criminal activity; (4) Defendant’s prior abuse
provided to the Court that would warrant a modification of these sentences.

       NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s

Motion for Modification of Sentence is DENIED.




                                                           Jan R. Jurden
                                                    Jan R. Jurden, President Judge




Original to Prothonotary:
cc: Scott M. McFarland (SBI# 00500127)
      Annemarie H. Puit, DAG



of the victims; and (5) Defendant traumatized his neighbors.
