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

STATE OF DELAWARE                              )
                                               )
         v.                                    )     ID No. 0109020376
                                               )
SHACIN PATEL,                                  )
         Defendant.                            )

              ORDER GRANTING MOTION TO MODIFY SENTENCE

         Upon consideration of the motion for modification of sentence of Defendant

Shacin Patel, as well as Rule 35 of the Superior Court Rules of Criminal

Procedure; the facts, arguments and legal authorities set forth in the Rule 35

Motion; statutory and decisional law; and the entire record in this case, the Court

finds as follows:

         1.     The Delaware State Police arrested Shacin Patel on September 29,

2001 and charged him with Theft Over $1000 (a felony), Conspiracy Second

Degree (a felony), and Civil Contempt (a misdemeanor). 1 Mr. Patel’s arrest came

as the result of stealing 350 phone cards from a Sunoco gas station. Mr. Patel was

20 years old at the time of the offense.

         2.     A Grand Jury indicted Mr. Patel on December 3, 2001 on both

felonies. Mr. Patel’s trial began on June 25, 2002 but ended in a mistrial. The



1
    The Civil Contempt charge was later dismissed.
State retried Mr. Patel on December 10, 2002 and the jury returned a guilty verdict

on both counts on December 11, 2002.

         3.      The Court immediately sentenced Mr. Patel as follows:

              • Theft Over $1000: 18 months Level V, suspended immediately for 18
                months Level II.

              • Conspiracy Second Degree: 6 months Level V, suspended
                immediately for 6 months Level II.

              • The Court also ordered Mr. Patel to pay restitution in the amount of
                $2,250.00.

         4.      On April 16, 2004, Commissioner Vavala discharged Mr. Patel’s

restitution obligations, noting that Mr. Patel had paid “a lot” of the amount owed.

         5.      The Court discharged Mr. Patel from probation on May 6, 2004.

         6.      Mr. Patel is originally from London, England, but has been a Lawful

Permanent Resident of the United States since 1994. He is currently in removal

proceedings from the United States and is being charged with being a deportable

and inadmissible alien because he has been convicted of an “aggravated felony.”

An aggravated felony can result in mandatory detention, deportation, and, most

importantly, bars eligibility for relief from these penalties.

         7.      A theft conviction with a sentence of one year or more is an

“aggravated felony” for immigration purposes.2 Under federal law, a sentence is


2
    Immigration and Nationality Act (“INA”) § 101(a)(43)(G); 8 U.S.C. § 1101(a)(43)(G)(2000).
defined as the “period of incarceration or confinement order by a court of law,

regardless of suspension of the imposition or execution of that imprisonment in

whole or in part.”3

         8.     Mr. Patel’s only means to prevent deportation in this scenario is

through an application for cancellation of removal; however, Mr. Patel’s

aggravated felony precludes him from this form of relief. As such, he faces

imminent deportation.

         9.     However, modifying Mr. Patel’s “term of imprisonment” to below

one year eliminates his “aggravated felony” status for immigration purposes.4

         10.    Under Superior Court Criminal Rule 35(b), this Court may entertain a

motion to modify or reduce a sentence after the 90 day deadline imposed by the

rule if there are “extraordinary circumstances.”

         11.    Generally, once a sentence is complete, a conviction stands and may

not be appealed or collaterally attacked. However, the Delaware Supreme Court

has adopted the “federal rule,” which provides that “the satisfaction of the sentence

renders the case moot unless, in consequence of the conviction or sentence, the

defendant suffers collateral legal disabilities or burdens; in which event the

defendant is considered to have a sufficient stake in the conviction or sentence to



3
    INA § 101(a)(48)(B); 8 U.S.C. § 1101(a)(48)(B).
4
    Matter of Oscar Costas-Vargas, 23 I&N Dec. 849, 852 (BIA 2005).
survive the satisfaction of the sentence and to permit him to obtain a review or

institute a challenge.”5

       11.    In State v. Lewis, the Delaware Supreme Court held that the Superior

Court has the authority to modify a sentence under Superior Court Criminal Rule

35(b), even if the sentence has expired, if collateral consequences (such as

deportation) attach to the sentence.6

       12.    Mr. Patel is well outside of the 90 day deadline to move this Court for

a reduction or modification of his sentence but he meets the “extraordinary

circumstances” exception and therefore is eligible for a modification or reduction

of his sentence. Moreover, the State does not oppose the modification sought.

       13.    Mr. Patel’s 2002 sentence categorizes his conviction as an

“aggravated felony” under federal law, which makes him eligible for deportation.

The only way to pursue relief from deportation is to eliminate the aggravated

felony from his record and petition the immigration court. A modification of his

sentence to less than one year will accomplish this goal 7 and reinstate his eligibility

to challenge the immigration proceedings.

       14.    Mr. Patel made a mistake 14 years ago as a 20 year old. Since then,

he has worked hard to become a productive member of society. He works, pays


5
  Gural v. State, 251 A.2d 344, 344-45 (Del. 1969).
6
  797 A.2d 1198, 1199, 1202 (Del. 2002).
7
  See Matter of Oscar Cota-Vargas.
his taxes, and provides for his family. Due to his father’s failing health, he is

taking on the responsibility of running his family’s business and is the sole source

of income for his wife and two parents.

         15.    Mr. Patel is facing deportation as the result of his theft conviction, and

therefore suffers from a collateral disability or burden. Consequently, Mr. Patel

has a stake in his conviction and sentence that allows him to survive the

satisfaction of the sentence and to permit him to obtain a review or institute a

challenge.8

         NOW, THEREFORE, this 9th day of October, 2015, the Motion for

Modification of Sentence for Sachin Patel is hereby GRANTED. An amended

sentencing order shall issue consistent with this opinion, modifying the sentence

imposed for theft to a period of ten (10) months.

         IT IS SO ORDERED.

                                             Andrea L. Rocanelli
                                             _____________________________
                                             The Honorable Andrea L. Rocanelli




8
    See Gural,251 A.2d at 344-45; Lewis, 797 A.2d at 1199.
