IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)

)

v. ) I.D. No. 1612003152

)

)

AUSTEN R. KOELLER, )
)

Defendant. )

ORDER

Submitted: April 20, 2020
Decided: June 30, 2020

AND NOW TO WIT, this 30" day of June, 2020, upon consideration of
Defendant’s Austen R. Koeller (“Defendant”) Motion for Modification of Sentence,
the State’s Response,! the sentence imposed upon the Defendant, and the record in
this case, it appears to the Court that:

8 On July 19, 2017, Defendant pled guilty to Robbery in the Second
Degree and Disguise,” and was sentenced to a sum of eighteen months at Level V
followed by transitioning levels of probation at the discretion of the Department of

Correction (“DOC”).? On August 23, 2018, Defendant was found in violation of

 

' State’s Response to Defendant’s Motion for Modification, State of Delaware v. Austen R.
Koeller, Crim. ID No. 1612003152 D.I. 32 (Del. Super. Ct. June 29, 2020) [hereinafter “State’s
Resp.” ].

Case Review Plea Hearing: Pled Guilty/Sentenced, State of Delaware v. Austen R. Koeller, Crim.
ID No. 1612003152, D.I. 7 (Del. Super. Ct. July 17, 2019).

3 Defendant received the following sentences: (1) For Robbery in the Second Degree, five years
at Level V supervision, suspended after eighteen months at supervision Level V, for three years
probation‘ and was resentenced to four years at Level V, suspended after successful
completion of the Key Program, for three years at Level IV, suspended after
successful completion of the Crest program, followed by the balance of Defendant’s
sentence to be served at Level III Crest.°

2. On April 20, 2020, Defendant filed this letter. Defendant does not
specifically cite to Superior Court Criminal Rule 35(b) in his motion. However, in
his motion he asks the Court to modify his Level V sentence. Generally, “[t]here is
no separate procedure, other than that which is provided under Superior Court
Criminal Rule 35, to reduce or modify a sentence.”’ The Court therefore considers
this request under Superior Court Criminal Rule 35(b).

3. In his motion, Defendant requests that the Court suspend the remainder

of his Level V sentence for an outpatient program and Level III or Level IV for six

 

and six months at Level IV DOC Discretion, suspended after six months at Level IV, for one year
at Level III; (2) For the Disguise charge, two years at Level V supervision, suspended immediately,
for one year at supervision Level III. Sentence: ASOP Order Signed and Filed on 07/21/2017,
State of Delaware v. Austen R. Koeller, Crim. ID No. 1612003152 D.L. 8 (Del. Super. Ct. July 19,
2017). Defendant’s Level V time runs consecutively and probation runs concurrently. Id.

4 Violation of Probation Hearing: Defendant Found in Violation. Sentenced, State of Delaware v.
Austen R. Koeller, Crim. ID No. 1612003152 D.I. 21 (Del. Super. Ct. Aug. 23, 2018). During
Defendant’s Level V Key placement, Defendant violently attacked another inmate by “jumping
on his head and neck, using the bunks to give him leverage.” See State’s Resp. As a result,
Defendant was kicked out of the Key Program and sent to maximum security at Howard R. Young
Correctional Institute. See id.

> Sentence: Corrected VOP ASOP Order Signed and Filed on 8/29/18, State of Delaware v. Austen
R. Koeller, Crim. ID No. 1612003152 D.I. 23 (Del. Super. Ct. Aug. 29, 2018) [hereinafter “Def.’s
VOP Sentence”).

© Defendant’s Motion for Modification of Sentence, State of Delaware v. Austen R. Koeller, Crim.
ID No. 1612003152, D.I. 31 (Del. Super. Ct. Apr. 20, 2020) [hereinafter “Def.’s Mot.”].

7 Jones v. State, 825 A.2d 238, 2003 WL 21210348, at *1 (Del. May 22, 2003) (TABLE).

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months.® In support of his motion, Defendant states that: (1) The Key Program has
been shut down due to the COVID-19 pandemic; (2) He is “ready to be a productive
citizen[;]”(3) He has been “clean for almost two years[;]” (4) He has earned his
G.E.D; (5) He has a job waiting for him upon his release; and (6) He “will be
completing the shu program in a few months. . . and [has been] “staying out of
trouble.”?

4. On June 29, 2020, the State filed a response in opposition to
Defendant’s motion, arguing that based on Defendant’s previous violent attack on
another inmate and his inability to engage in treatment while incarcerated thus far,
“there is little reason to expect him to engage in treatment while he is in the
community.”!°

5. 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.'! Defendant is time-barred. In order to overcome the ninety-day time bar

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

 

8 Def.’s Mot. at 2.

? Id. at 1.

10 State’s Resp. at 1.

'l De. SUPER. CT. CRIM. R. 35(b).

2 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)).

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the tardiness of his Motion.'? This exception is not a plea for leniency nor does it
permit “exceptional rehabilitation” to suffice for “extraordinary circumstances.””
Exemplary conduct or successful rehabilitation while incarcerated does not

»I5 Defendant has not raised any

constitute “extraordinary circumstances.
“extraordinary circumstances” to overcome this bar. The temporary suspension of
the Key Program due to COVID-19 is not an extraordinary circumstance.

6. Moreover, Defendant’s motion is repetitive. Superior Court Criminal
Rule 35(b) provides that “[t]he court will not consider repetitive requests for
reduction of sentence.”!® A motion is considered repetitive when it “is preceded by
an earlier Rule 35(b) motion, even if the subsequent motion raises new arguments.”!”
The bar to repetitive motions has no exception. It is absolute and flatly “prohibits

repetitive requests for reduction of sentence.”'® Therefore, where Defendant has

previously submitted two Motions for Modification,’ and where such motions were

 

'3 See Colon v. State, 900 A.2d 635, 638 (Del. 2006).

\4 See Morrison v. State, 846 A.2d 238, 2004 WL 716773, at *1—2 (Del. Mar. 24, 2004) (TABLE).
'S State v. Culp. 152 A.3d 141, 154 (Del. 2016) (internal quotations omitted (quoting Stave v. Diaz,
2015 WL 1741768 at *2).

16 De. SUPER. CT. CRIM. R. 35(b). (emphasis added).

"7 State v. Culp, 152 A.3d 141, 144 (Del. 2016).

'8 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.”).

19 See Defendant’s Motion for Modification of Sentence (Letter), State of Delaware v. Austen R.
Koeller, Crim. ID No. 1612003152, D.I. 25 (Del. Super. Ct. July 17, 2019); see also Defendant’s

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oc:
cc:
Department of Justice
Investigative Services

denied,”° this motion is also barred as repetitive. The Court cannot use its discretion
to ignore this bar.”! Notably, in response to consideration of Defendant’s last Motion
for Modification, DOC recommended that Defendant remain at maximum security
until his security level could be reevaluated this July.” The Court defers to DOC
regarding this placement decision.

7. As such, Defendant’s sentence is appropriate for all the reasons stated

at the time of sentencing.

 
  
 
  

IT IS SO ORDERED that Defendant’s Moti ication of Sentence

 

  
   

is DENIED.
TZ
Vivian L. Medinilla
Prothonotary
Defendant

 

Motion for Modification of Sentence, State of Delaware v. Austen R. Koeller, Crim. ID No.
1612003152, D.I. 29 (Del. Super. Ct. Aug. 27, 2019).

20 See Letter Denying Defendant’s Motion for Modification of Sentence, State of Delaware v.
Austen R. Koeller, Crim. ID No. 1612003152, D.I. 28 (Del. Super. Ct. Aug. 23, 2019); see also
Order Denying Defendant’s Motion for Modification, State of Delaware v. Austen R. Koeller,
Crim. ID No. 1612003152, D.1. 30 (Del. Super. Ct. Sept. 11, 2019).

21 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).

22 See Letter Denying Defendant’s Motion for Modification of Sentence, State of Delaware v.
Austen R. Koeller, Crim. ID No. 1612003152, D.I. 28 (Del. Super. Ct. Aug. 23, 2019) (denying
Defendant’s Motion for Modification, attaching e-mail correspondence from Jennifer Barnes
(DOC) recommending that Defendant “continue with his classification of Maximum Security
status until his security level can be reassessed in July of 2020.”).

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