            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                              )
                                               )
       v.                                      )
                                               ) I.D. Nos.       1110018073
                                               )                 1110013616
TONY L. CLARK,                                 )
                                               )
              Defendant.                       )

                                          ORDER

                                Submitted: April 20, 2020
                                 Decided: June 29, 2020

       AND NOW TO WIT, this 29th day of June 2020, upon consideration of

Defendant Tony Clark’s (“Defendant”) Motion for Modification of Sentence, the

State’s Response,1 the sentence imposed upon Defendant, and the record in this case,

it appears to the Court:

       1.     On June 8, 2012, Defendant was sentenced for Robbery First Degree,

Possession of a Deadly Weapon during the Commission of a Felony, and Theft.2

Defendant received fifteen years at Level V, suspended after six years at Level V

Key, for transitioning levels of supervision between Level IV Crest and Level III

Crest Aftercare.3 For the Firearm charge, Defendant received a consecutive sentence

1
  State’s Response to Defendant’s Motion for Modification, State of Delaware v. Tony L. Clark,
Crim. ID No. 1110018073, D.I. 29 (Del. Super. Ct. June 23, 2020) [hereinafter “State’s Resp.”].
2
  Case Review Calendar Pled Guilty PSI Ordered/ Sentencing: 05/11/2012, State of Delaware v.
Tony L. Clark, Crim. ID No. 1110018073, D.I. 7 (Del. Super. Ct. Feb. 13, 2012).
3
  Sentence: Corrected ASOP Order, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073,
                                              1
of four years at Level V.4 For the Theft charge, Defendant received one year at Level

V, suspended for one year at Level III.5 In sum, he received eleven years of

incarceration followed by transitioning levels of probation.

       2.     On April 20, 2020, Defendant filed this, his sixth, Motion for

Modification of Sentence under Rule 35(b).6 In his motion, Defendant asks this

Court to modify his remaining four months at Level V to one year at Level IV Home

Confinement, held at Level III until space at Level IV is available, followed by two

years at Level III.7

       3.     In support of his Motion, Defendant states the following grounds for

relief: (1) “extraordinary circumstance” – citing the COVID-19 pandemic; (2)

Defendant contends that his underlying condition of asthma makes him a high risk

inmate; (3) at the time of filing this motion, Defendant only had four months

remaining on his ten year Level V sentence, and had completed all mandatory

minimum portions of his sentencing; and (4) Defendant again asserts concern for his

safety in relation to COVID-19 where seven officers and twelve inmates have tested

positive for COVID-19 at James T. Vaughn Correctional Center.8


D.I. 10 (Del. Super. Ct. July 12, 2012) [hereinafter “Sentence Order”].
4
  Id.
5
  Id.
6
   Defendant’s Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No.
1110018073, D.I. 28 (Del. Super. Ct. Apr. 23, 2020) [hereinafter “Def.’s Mot.”]; see DEL. SUPER.
CT. CRIM. R. 35(b).
7
  Def.’s Mot.
8
  Id. at 2.
                                               2
       4.     Under Superior Court Criminal Rule 35(b), the Court may reduce a

sentence of imprisonment on a motion made within ninety days after the sentence is

imposed.9 Defendant is time-barred. In order to overcome the ninety-day time bar

in Rule 35(b), Defendant must show that “extraordinary circumstances”10 forgive

the tardiness of his Motion.11 This exception is not a plea for leniency nor does it

permit “exceptional rehabilitation” to suffice for “extraordinary circumstances.”12

This Court does not find that Defendant has raised any “extraordinary

circumstances” to overcome this bar. The Court agrees with the State’s position that

Defendant has not established a basis for relief where DOC has implemented

appropriate protocol to address his concerns.

       5.     Furthermore, Superior Court Criminal Rule 35(b) also provides that

“[t]he court will not consider repetitive requests for reduction of sentence.”13 A

motion is considered repetitive when it “is preceded by an earlier Rule 35(b) motion,

even if the subsequent motion raises new arguments.”14 The bar to repetitive motions

has no exception. It is absolute and flatly “prohibits repetitive requests for reduction


9
  DEL. SUPER. CT. CRIM. R. 35(b).
10
    The Delaware Supreme Court has defined “extraordinary circumstances” as circumstances
which: “‘specifically justify the delay;’ are ‘entirely beyond a petitioner’s control;’ and ‘have
prevented the applicant from seeking the remedy on a timely basis.’” State v. Diaz, 113 A.3d
1081, 2015 WL 1741768, at *2 (Del. 2015) (TABLE) (quoting State v. Lewis, 797 A.2d 1198,
1203, 1205 (Del. 2002) (Steele, C.J., dissenting)).
11
   See Colon v. State, 900 A.2d 635, 638 (Del. 2006).
12
   See Morrison v. State, 846 A.2d 238, 2004 WL 716773, at *1–2 (Del. Mar. 24, 2004) (TABLE).
13
   Id. (emphasis added).
14
   State v. Culp, 152 A.3d 141, 144 (Del. 2016).
                                               3
of sentence.”15 The repetitive motion bar is applicable even when the request is for

reduction or modification of a term of partial confinement or probation.16 Therefore,

where Defendant has previously submitted five other Motions for Modification,17




15
   Thomas v. State, 812 A.2d 900, 2002 WL 31681804, at *1 (Del. 2002) (TABLE). See also
Jenkins v. State, 954 A.2d 910, 2008 WL 2721536, at *1 (Del. 2008) (TABLE) (affirming the
Superior Court’s denial of defendant’s Rule 35(b) motion for modification where Rule 35(b)
“prohibits the filing of repetitive sentence reduction motions.”); Morrison v. State, 846 A.2d 238,
2004 WL 716773, at *2 (Del. 2004) (TABLE) (finding that defendant’s Rule 35(b) motion for
modification “was repetitive, which also precluded its consideration by the Superior Court.”).
16
   See Teat v. State, 31 A.3d 77, 2011 WL 4839042, at *1 (Del. 2011) (TABLE); see also State v.
Weidlow, 2015 WL 1142583, at *1–2 (Del. Super. Ct. Mar. 11, 2015); see also State v. Bennett,
2015 WL 1746239, at *2 (Del. Super. Ct. Apr. 13, 2015).
17
   Defendant has filed five previous Motions for Modification under Rule 35(b) and two Motions
for Reconsideration. Defendant’s Motion for Modification of Sentence, State of Delaware v. Tony
L. Clark, Crim. ID No. 1110018073, D.I. 11 (Del. Super. Ct. Aug. 27, 2012); Defendant’s Motion
for Modification (Correction) of Sentence, State of Delaware v. Tony L. Clark, Crim. ID No.
1110018073, D.I. 12 (Del. Super. Ct. Apr. 10, 2014); Defendant’s Letter Requesting
Reconsideration of Modification (Correction) of Sentence, State of Delaware v. Tony L. Clark,
Crim. ID No. 1110018073, D.I. 15 (Del. Super. Ct. June 3, 2014); Defendant’s Motion for
Modification of Sentence, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 17
(Del. Super. Ct. Mar. 2, 2017); Defendant’s Motion for Modification, State of Delaware v. Tony
L. Clark, Crim. ID No. 1110018073, D.I. 22 (Del. Super. Ct. Aug. 26, 2019); Defendant’s Letter
Requesting Reconsideration of Modification of Sentence, State of Delaware v. Tony L. Clark,
Crim. ID No. 1110018073, D.I. 25 (Del. Super. Ct. Dec. 11, 2019); Defendant’s Motion for
Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 26 (Del. Super.
Ct. Mar. 6, 2020).
                                                4
      and where such motions were previously denied,18 this motion is also barred as

      repetitive. The Court cannot use its discretion to ignore this bar.19

             6.     Moreover, this Court accepted that Defendant’s previous request called

      for a modification Level IV placement at DOC DISCRETION20 and has continued

      to modify, where appropriate.            At this time, Defendant’s sentence remains

      appropriate for all the reasons stated at the time of sentencing.

             IT IS SO ORDERED that Defendant’s Motion for Modification of Sentence

      is DENIED.

                                                                 /s/ Vivian L. Medinilla
                                                                 Vivian L. Medinilla
                                                                 Judge
oc: Prothonotary
cc: Defendant
Department of Justice
Investigative Services



      18
         Order Denying Defendant’s Motion for Modification, State of Delaware v. Tony L. Clark, Crim.
      ID No. 1110018073, D.I. 12 (Del. Super. Ct. Sept. 21, 2012); Order Denying Defendant’s Motion
      for Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 14 (Del.
      Super. Ct. May 20, 2014); Order Denying Defendant’s Motion for Modification, State of Delaware
      v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 16 (Del. Super. Ct. July 3, 2014); Order Denying
      Defendant’s Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No.
      1110018073, D.I. 18 (Del. Super. Ct. Mar. 20, 2017); Order Denying Defendant’s Motion for
      Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 24 (Del. Super.
      Ct. Nov. 5, 2019); Order Denying Defendant’s Motion for Modification, State of Delaware v. Tony
      L. Clark, Crim. ID No. 1110018073, D.I. 27 (Del. Super. Ct. Mar. 19, 2020) (denying Defendant’s
      Motion for Modification, but updating his sentence to reflect a Level IV DOC placement).
      19
         State v. Culp, 152 A.3d 141, 145 (Del. 2016) (reversing the Superior Court’s decision to grant
      defendant’s Motion for Modification where the motion was repetitive and untimely).
      20
         Order Denying Defendant’s Motion for Modification, State of Delaware v. Tony L. Clark,
      Crim. ID No. 1110018073, D.I. 27 (Del. Super. Ct. Mar. 19, 2020) (denying Defendant’s Motion
      for Modification, but updating his sentence to reflect a Level IV DOC placement).
                                                     5
