IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

ID No. 1507016716

ANTHONY M. ROJAS,

\)L/\/§\J\./\/\/&

Defendant.

Submitted: July 14, 2016
Decided: July 28, 2016

ORDER DENYING MOTION TQ REDUCE OR
M§ QDIFY §E§TE§CE

This 28th day of July, 2016, upon consideration of the Defendant’s
Motion for Sentence Modification, and the record in this matter, it appears to
the Court that:

(l) On February 12, 2016, Defendant Anthony M. Rojas pleaded
guilty to one count of Drug Dealing-Heroin (Tier 4) (as a class B felony)
and one count of Possession of Mari_juana (an unclassified rnisdemeanor).'
His sentencing occurred several months later, on June 14, 2016, after a pre-

sentence investigative report was prepared and the State had filed an habitual

' Plea Agreement and TIS Guilty Plea Forrn, State v. Anthony M. Rojas, ID No.

1507016716 (Del. Super. Ct. Feb. lO, 2016) (D.I. 25). See also DEL. CODE ANN. tit. l6, §
4752 (2015) (drug dealing); z`a'. at § 4764 (possession of marijuana).

criminal petition.z Rojas was sentenced: for Drug Dealing (Tier 4) (IN15-
08-0332) - 8 years at Level V to be served under the provisions of the
Habitual Criminal Act;3 and for Possession of Marijuana (INl 5-08-0333) - 3
months at Level V suspended for l year at Level III.4

(2) Rojas filed no direct appeal from his convictions or sentence.

(3) Instead, he docketed the present motion under Superior Court
Criminal Rule 35(b) requesting: (a) reduction of his eight-year Level V tenn
to four years, and (b) modification of his Level III supervision to thirty days
at supervision Level 5.5 According to Rojas, his term of imprisonment
should be reduced and modified because: (a) he promises to participate in

drug rehabilitation programs; (b) his mother is a single-parent taking care of

2 DEL. CODE ANN. tit. ll, § 42l4(a) (2015) (providing that a person who has been

thrice previously convicted of a felony and is thereafter convicted of another felony may
be declared an habitual criminal; the Court may then, in its discretion, impose a sentence
of up to life imprisonment for that or any subsequent felony).

3 Id. ("any sentence [ ] imposed pursuant to this subsection shall not be subject to

suspension by the cour't, and shall be served in its entirety at a full custodial Level V
institutional setting without the benefit of probation or parole, except that any such
sentence shall be subject to the provisions of §§ 4205(h), 4217, 4381 and 4382 of this
title.").

4
1507016716(1)@1. Super. Ct. Jun@ 16,2016)(1).1. 31).

5 Super. Ct. Crim. R. 35(b) (providing that, under certain conditions, the court may

reduce a sentence of imprisomnent on an inmate’s motion; providing also that the Court
may reduce a term or the condition of partial confinement in probation); Jones v. State,
2003 WL 21210348, at *l (Del. May 22, 2003) ("There is no separate procedure, other
than that which is provided under Superior Court Criminal Rule 35, to reduce or modify a
sentence.").

Sentencing Order ("Sentencing Order"), State v. Am‘hony M. Rojas, lD No,-

his fourteen year-old sister and eight year-old son; (c) he wishes to continue
his education for drug counseling and human resources which is not
available in prison; and (d) he wishes to continue pursuing education and
training for his employment.é

(4) The Court may consider such a motion "without presentation,
hearing or argument."7 The Court will decide this motion on the papers
nied.*‘

(5) The purpose of Superior Court Criminal Rule 35(b) historically
has been to provide a reasonable period for the Court to consider alteration

9 Where a motion for reduction of sentence of

of its sentencing judgments.
imprisonment is filed within 90 days of sentencing, the Court has broad

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

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

6

Der.’s Rule 35(b) M@r. ar 2 (D.l. 32).

7 Super. Ct. Crim. R. 35(1:>).

8 When considering motions for sentence modification, this Court addresses any

applicable procedural bars before turning to the merits. State v. Redden, 111 A.3d 602,
606 (Del. Super. Ct. 2()15). There are no procedural bars to consideration of Rojas’s
request under Rule 35(b).

9 Johnson v. State, 234 A.Zd 447, 448 (Del. 1967) (per curiam).
10 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.").

_3_

initial sentence is appropriate."" 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. '2

(6) As noted in the Court’s Sentencing Order, only the first two
years of Rojas’s eight-year imprisonment tenn for heroin dealing comprise
the minimum term that cannot be suspended or reduced." Rojas’s request
to reduce his Level V term by half to four years, therefore, is left to the
Court’s discretion.m

(7) The Court has fully reviewed Rojas’s application, the record in
his case, his prior supervision history, and all sentencing information
available. The Court noted the following aggravators in its Sentencing
Order: (a) Rojas’s prior violent and repetitive criminal activity, including

his statutory eligibility for habitual criminal status; and (b) that it would

" state v. Romedio, 108 A.zd 326, 331 (Doi. supoi. ct. 2014) (iotoi»iioi oitotioiis and

quotations omitted) (such a request is essentially a plea for leniency: an appeal to the
sentencing court to reconsider and show mercy).

‘2 store v. Sttttgi.i, 947 A.zd 1037, 1092 (Dol. 2003) (“supoiior court Ruio 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).

13 soo DEL. come ANN. tit. 16, § 4752(1); tot at tit. 11, § 4205(1»)(2).

14 See Rondon v. State, 2008 WL 187964, at *l (Del. 20()8) ("The merit of a

sentence modification under Rule 35(b) is directed to the sound discretion of the Superior
Court.").

unduly depreciate the nature and circumstances of his crimes to impose a
lesser terrn.'S :The Court finds that when all sentencing factors in his case
are considered, Rojas’s stated aspirations may be commendable, but they do
not warrant sentence reduction here. Instead, after a thorough review of the
merits of Rojas’s request, the Court finds its original sentencing judgments
as to the Level V term for drug dealing is appropriate for the reasons stated
at the time it was rendered.

(8) Rojas has also requested that the Court modify the Level III
portion of his sentence. That the Court cannot do. Because the Court
imposed a period of incarceration totaling more than one year, ll Del. C.
§ 4204(1) expressly requires it to "include as part of its sentence a period of
custodial supervision at either Level IV, III or ll for a period of not less than
6 months to facilitate the transition of the individual back into society."w At
the Court’s discretion, the supervisory period may be longer than six

monthsw and may "be in addition to the maximum sentence of imprisonment

15 See Sentencing Order at 5.
16 DEL. CODE ANN. tit. ll, § 4204 (l) (2015).

'7 State v. Williams, 2009 WL 3636767, at *l (Del. Super. Ct. Sept. 16, 20()9)
("[s]ection 4204(1) does not speak directly to a maximum sentence"); Larson v. State, 659
A.2d 228, 1995 WL 236650 (Del. 1995) (explaining that the six-month provision only
acts as a cap on a supervisory sentence when the defendant is sentenced to the statutory
maximum for each charge).

established by the statute."ls But the imposition of at least the minimum
transition period is mandatory not discretionary. "[T]he intent of section
4204(1) is to ensure that no incarcerated individual is returned directly to the
community without any transition or follow-up supervision."w And this is
especially true for an habitual offender.z°

(9) Because R0jas was sentenced to more than one year of Level V
supervision, Delaware law requires the Court to include probationary
supervision for no less than six months.z] And because Rojas was not
sentenced to the statutory maximum for his charges, the Court was not

limited to six months of supervision.zz

'8 DEL. come ANN. m. 11, § 4204(1) (2015).

'° Nave v. sze¢e, 783 A.2d 120, 122(1)@1.2001). see else stare v. Bes¢@n, 2008 WL
4356278, at *l (Del. Super. Ct. July 7, 2008) ("The legislature does not want inmates
who have been in prison for a year or more to be released to the street without serving at
least six months of transition probation.").

20 Nave, 783 A.2d er 122.

21 see owens v. szeze, 2013 wL 6536753, *2 (Del. 2013) (nnding ther “rhe trial

court’s failure to include a period of probation in [defendant’s] original sentence was an
error" under section 4204(l)).

22 See n. 17, supra.

(10) Accordingly, under the Court’s permissible exercise of its
discretion pursuant to Rule 35(b) and in accordance with section 4204(I)’s
mandated supervisory period, the Court DENIES Rojas’s request to reduce

or modify the terms of his sentence.

so oRDERED this 23‘*‘ day of Ju1y,z016.

PAUL R. WALLACE, JUDGE

 

Original to Prothonotary

cc: David H. Holloway, Deputy Attorney General
J ames O. Tumer, Esquire
Mr. Anthony M. Rojas, pro se
Investigative Services Office

