          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                       )
                                         )
          v.                             )         ID No. 1306000818
                                         )
KEVIN P. BRITT,                          )
                                         )
          Defendant.                     )

                           Date Submitted:   May 12, 2020
                           Date Decided:     July 16, 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 May 14, 2014, Defendant was found guilty of three counts of

Reckless Endangerment First Degree, three counts of Possession of a Firearm

During the Commission of a Felony (“PFDCF”), and Carrying Concealed Deadly

Weapon (“CCDW”).1 By Order dated August 1, 2014,2 effective June 1, 2013,

Defendant was sentenced as follows: for Reckless Endangerment First Degree,

IN13-06-0840, 5 years at Level V, suspended for 2 years and 6 months at Level IV

DOC Discretion, suspended after 6 months for 2 years at supervision Level III; for

Reckless Endangerment First Degree, IN13-06-0843, 5 years at Level V, suspended


1
    D.I. 32.
2
    D.I. 35.
for 2 years at supervision Level III; for Reckless Endangerment First Degree, IN18-

06-1959, 5 years at Level V, suspended for 2 years at supervision Level III; for

PFDCF, IN13-06-1955, 3 years at Level V Substance Abuse Treatment Program;

for PFDCF, IN13-06-1958, 3 years at Level V; for PFDCF, IN13-06-1960, 3 years

at Level V; for CCDW, IN13-06-0839, 8 years at Level V, suspended for 2 years at

supervision Level III.3

       2.      On May 12, 2020, Defendant filed the instant Motion, asking the Court

to suspend his Level V sentence for immediate flow down to supervision Level III,

or in the alternative, to Level IV.4 In support of his Motion, Defendant cites his good

behavior and potential exposure to COVID-19.5

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

sentence. “Under Rule 35(b), a motion for sentence modification must be filed

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

circumstances.’”6

       4.      First, Defendant filed this Motion more than 90 days after the



3
  All probation is concurrent. Defendant’s 3 years at Level V for each count of PFDCF is a
mandatory term of incarceration pursuant to 11 Del. C. § 1447A.
4
  D.I. 74.
5
  Id.
6
  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.”).
                                                 2
imposition of his sentence, therefore it is time-barred under Rule 35(b). 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.” 7                   “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 basis.” 8 Mitigating

factors that could have been presented at sentence, exemplary conduct, or successful

rehabilitation while incarcerated does not constitute “extraordinary circumstances.” 9

       5.      The Court does not find Defendant has any “extraordinary

circumstances” in his Motion.             Furthermore, the DOC has not submitted an

application pursuant to 11 Del. C. § 4217.

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

portion of any substantive minimum sentence. 10 Defendant’s 9 years Level V for



7
  State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015).
8
  State v. Culp, 152 A.3d 141, 145 (Del. 2016) (internal quotations omitted) (quoting Diaz, 2015
WL 1741768, at *2).
9
  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)).
10
   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.”).
                                                 3
his PFDCF sentences is mandatory, and therefore, the Court cannot reduce or

suspend such sentences.11

         7.     Defendant’s sentences are appropriate for all the reasons stated at the

time of sentencing. No additional information has been 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: Kevin P. Britt (SBI# 00646546)
      Annemarie H. Puit, DAG




11
     See 11 Del. C. § 1447A.
                                            4
