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


STATE OF DELAWARE,                         )
                                           )
                                           )
v.                                         )             ID No. 1005003025
                                           )
DEVON D. REED,                             )
                                           )
                        Defendant.         )

                          Submitted: November 26, 2014
                           Decided: December 16, 2014

     ORDER DENYING THIRD MOTION TO REDUCE SENTENCE

       This 16th day of December, 2014, upon consideration of the

Defendant’s Motion for Sentence Reduction/Modification, and the record in

this matter, it appears to the Court that:

       (1)    In May 2011, Devon D. Reed pleaded guilty to reckless

endangering first degree (as a lesser offense of attempted murder) and

possession of a firearm by a person prohibited. 1              He was immediately




1
        DEL. CODE ANN. tit. 11, § 604 (2010) (reckless endangering in the first degree);
id. at § 1448 (possession of a firearm by a person prohibited). As part of the same
agreement, Reed pleaded guilty also to possession with intent to deliver heroin arising
from a different indictment. See Plea Agreement and Sentencing Order, State v. Devon
D. Reed, ID Nos. 1005003025 & 1005013493 (Del. Super. Ct. May 24, 2011).
sentenced to serve for the reckless endangering count2 five years at Level V

suspended for 18 months at supervision Level III.3

       (2)    On October 23, 2013, Reed was before the Court for a

contested hearing for violating conditions of his probated sentence (“VOP”).

He was found in violation and was sentenced to three years at Level V with

no probation to follow 4 for the VOP related to his reckless endangering

charge.5

       (3)    Reed’s serial efforts to reduce that Level V sentence ensued.

This is his third attempt in the last six months to do so.

       (4)    In June 2014, Reed docketed his first motion under Superior

Court Criminal Rule 35(b) requesting reduction of this Level V term. 6 Reed


2
       The sentences for weapon and drug charges are not contested in this proceeding.
3
        DEL. CODE ANN. tit. 11, § 4205(b)(5) (2010) (providing for a sentence of up to 5
years at Level V for a class E felony).
4
        See VOP Sentencing Order, State v. Devon D. Reed, ID Nos. 1005003025 &
1005013493 (Del. Super. Ct. Oct. 23, 2013) (the VOP sentence for Reed’s drug charge is
5 years of imprisonment fully suspended for probation).
5
        By this time, his weapons sentence had been completely served and discharged.
See Sentencing Order, State v. Devon D. Reed, ID Nos. 1005003025 & 1005013493 (Del.
Super. Ct. May 24, 2011) (For his possession of a firearm by a person prohibited
conviction, Reed received a 3-year term of imprisonment with no subsequent suspended
term). And again, the VOP sentence for the drug charge is not contested in this
proceeding. Id. (the VOP sentence for Reed’s drug charge is 5 years of imprisonment
fully suspended for intensive probation).
6
       Super. Ct. Crim. R. 35(b) (providing that the court “may reduce a sentence of
imprisonment” on an inmate’s motion).



                                          -2-
captioned and explained his claims that his term of imprisonment should be

reduced as follows:      (1) “Remorse and a Desire to Change” – for the first

time he experienced a sense of loss with incarceration and “realize[d] now

that [he] need[ed] help;” (2) “Rehabilitation” – he had always had a

substance abuse problem but never had any form of treatment; and (3)

“Plans & Goals” – he planned to complete a substance abuse program in

prison and get a GED. 7 Reed moved that his Level V term for this VOP be

reduced to successful completion of the Level V substance abuse treatment

program that had been ordered in a separate case. 8 The Court fully reviewed

the sentencing records of both cases and denied Reed’s motion. 9

       (5)    Less than two weeks after that denial, Reed docketed his second

Rule 35(b) motion, again requesting reduction of the same Level V term.

Reed then captioned and explained his claims thusly: (1) “Excessive Time”

– Reed complained that his 3-year VOP sentence was “outside of the


7
       D.I. 35.
8
        In August of 2013, while Reed was on this probation for reckless endangering and
possession with intent to deliver heroin, he was arrested for drug dealing-heroin and
tampering with physical evidence. Reed was convicted of those offenses and sentenced
as a statutory habitual criminal offender. See DEL. CODE ANN. tit. 11, § 4214(a) (2013).
Reed, as a condition of that sentence, must complete an intensive substance abuse
treatment program while imprisoned. Sentencing Order, State v. Devon D. Reed, ID No.
1308004342 (Del. Super. Ct. Mar. 21, 2014).
9
       State v. Devon D. Reed, Del. Super., ID No. 1005003025, Wallace, J. (June 20,
2014) (Order – denying first Rule 35(b) motion) (D.I. 36).



                                          -3-
sentencing guidelines;” (2) “Education” – he was working toward obtaining

his GED or high school diploma; and (3) “Rehabilitation” – the 3-year VOP

Level V term was not suspended for successful completion of the Level V

substance abuse treatment program that was ordered in his separate case.

Reed asked that his Level V term for this VOP be cut in half. 10 The Court

denied that second motion.11

       (6)     Reed has now filed his third sentence reduction motion in six

months requesting reduction of his three-year Level V term. Reed’s claims

therein are familiar: (1) “Excessive Time;” (2) “Rehabilitation;” and (3)

“Employment” – he was employed and supporting children before his re-

incarceration.

       (7)     Just as it was constrained to with his prior motions, the Court

must consider Reed’s present entreaty under the provisions of Criminal Rule

35(b).12     The Court may consider such a motion “without presentation,




10
       D.I. 37.
11
       State v. Devon D. Reed, Del. Super., ID No. 1005003025, Wallace, J. (Oct. 2,
2014) (Order – denying second Rule 35(b) motion) (D.I. 38).
12
        Jones v. State, 2003 WL 21210348, at *1 (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.”).



                                          -4-
hearing or argument.” 13 The Court will decide Reed’s motion on the papers

filed.

         (8)    The intent of Superior Court Criminal Rule 35(b) historically

has been to provide a reasonable period for the Court to consider alteration

of its sentencing judgments.14 Where a motion for reduction of sentence of

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

discretion to decide if it should alter its judgment.15 The reason for such a

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

initial sentence is appropriate.16             But there are certain procedural

requirements under the rule that must be met; relief is barred when they are

not.



13
         Super. Ct. Crim. R. 35(b).
14
         Johnson v. State, 234 A.2d 447, 448 (Del. 1967) (per curiam).
15
       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.”).
16
        See United States v. Ellenbogen, 390 F.2d 537, 541, 543 (2d Cir. 1968)
(explaining time limitation and purpose of then-extant sentence reduction provision of
Federal Criminal Rule 35, the federal analogue to current Superior Court Criminal Rule
35(b)); see also United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973) (Rule 35
allows sentencing court “to decide if, on further reflection, the original sentence now
seems unduly harsh” such request “is essentially a ‘plea for leniency.’”) (citations
omitted). See also State v. Tinsley, 928 P.2d 1220, 1223 (Alaska Ct. App. 1996)
(explaining under Alaska’s then-extant120-day rule court’s “authority can be exercised
even when there is no reason to reduce the sentence other than the judge’s decision to
reconsider and show mercy”).



                                            -5-
       (9)     The first is timeliness. 17 Rule 35(b) requires that applications

to reduce imprisonment be filed promptly 18 – i.e. within 90 days of the

sentence’s imposition – “otherwise, the Court loses jurisdiction” to act

thereon.19 An exception to this bar exists: to overcome the 90-day time

limitation, an inmate seeking to reduce a sentence of imprisonment on his or

her own motion must demonstrate “extraordinary circumstances.” 20

       (10) Also found in Rule 35(b) is a separate and more unforgiving

bar: “[t]he [C]ourt will not consider repetitive requests for reduction of



17
        Super. Ct. Crim. R. 35(b) (“The court may reduce a sentence of imprisonment on
a motion made within 90 days after the sentence is imposed.”). See ABA STANDARDS
FOR CRIMINAL JUSTICE: SENTENCING §18-7.1 (3d ed. 1994) (“The rules of procedure
should authorize a sentencing court, upon motion . . . to reduce the severity of any
sentence. The rules should restrict the time for reduction in severity of a sentence to a
specified period after imposition of a sentence.”).
18
        See, e.g., R.I. Super. Ct. R. Crim. P. 35, historical note (1972) (noting such a
provision is “intended to provide the court with an opportunity during a limited period
after sentencing to exercise leniency in the event the court, for some reason, determines
that the sentence imposed was unduly severe or a shorter sentence would be desirable”).
19
        In re Nichols, 2004 WL 1790142, at *1 (Del. Super. Ct. July 20, 2004); State v.
Lewis, 797 A.2d 1198, 1205 (Del. 2002) (Steele, J., dissenting) (“after 90 days . . . the
judiciary may not consider [an inmate’s plea for leniency] except where ‘extraordinary
circumstances’ may have prevented the applicant from seeking the remedy on a timely
basis”). See, e.g., Tinsley, 928 P.2d at 1223-24 (the time limit exists so that trial court
does not have nearly boundless continuing authority to reduce a defendant’s sentence);
State v. Jensen, 429 N.W.2d 445, 446-47 (N.D. 1988) (120-day time limitation is
jurisdictional).
20
       Sample v. State, 2012 WL 193761, at *1 (Del. Jan. 23, 2012) (“Under Rule 35(b),
the Superior Court only has discretion to reduce a sentence upon motion made within 90
days of the imposition of sentence, unless ‘extraordinary circumstances’ are shown.”)
(emphasis added).



                                           -6-
sentence.”21 Unlike the 90-day jurisdictional limit with its “extraordinary

circumstances” exception, the bar to repetitive motions has no exception.

Instead, this bar is absolute and flatly “prohibits repetitive requests for

reduction of sentence.” 22

       (11) When considering applications for postconviction relief under

its criminal rules, this Court addresses any applicable procedural bars before

turning to the merits.23 So too here. This policy protects the integrity of the

Court’s rules and the finality of its judgments. Addressing the merits of a

case that does not meet procedural requirements effectively renders our

procedural rules meaningless. 24




21
       Super. Ct. Crim. R. 35(b) (emphasis added).
22
        Thomas v. State, 2002 WL 31681804, at *1 (Del. Nov. 25, 2002). See also
Jenkins v. State, 2008 WL 2721536, at *1 (Del. July 14, 2008) (Rule 35(b) “prohibits the
filing of repetitive sentence reduction motions”); Morrison v. State, 2004 WL 716773, at
*2 (Del. Mar. 24, 2004) (“motion was repetitive, which also precluded its consideration
by the Superior Court”); Duffy v. State, 1998 WL 985332, at *1 (Del. Nov. 12, 1998) (as
court had denied original, timely Rule 35(b) motion, “Rule 35(b) ceased to be a viable
option” for seeking sentence reduction).
23
        See, e.g., Ayers v. State, 802 A.2d 278, 281 (Del. 2002). See also Bailey v. State,
588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990)
(citing Harris v. Reed, 489 U.S. 255 (1989)).
24
        See State v. Chao, 2006 WL 2788180, at *5 (Del. Super. Ct. Sept. 25, 2006) (“To
protect the integrity of the procedural rules, the Court should not consider the merits of a
postconviction claim where a procedural bar exists.”); State v. Jones, 2002 WL
31028584, at *2 (Del. Super. Ct. Sept. 10, 2002) (citing State v. Gattis, 1995 WL
790961, at *3 (Del. Super. Ct. Dec. 28, 1995)) (same).


                                            -7-
       (12) Consideration of whether any inmate can avoid Rule 35(b)’s

time bar may require an examination of the substance of any claimed

“extraordinary circumstances.” Whereas the determination of whether a

Rule 35(b) application is repetitive is relatively facile.             In turn, when

evaluating whether an inmate’s application meets the procedural

requirements of Rule 35(b), the Court should first determine whether it is

repetitive.25 The Court does so here.

       (13) Even if Reed’s untimeliness were excusable, which he makes

no attempt to demonstrate, “th[is] . . . Court [i]s, nevertheless, compelled to

deny the motion as repetitive.” 26 Thus, relief on this, Reed’s third reduction

request, is “barred by the prohibition in Rule 35(b) on repetitive motions.” 27




25
       See, e.g., In re Desmond, 2014 WL 5342267, at *2 (Del. Oct. 20, 2014)
(recognizing in the extraordinary writ context the courts’ need to engage summary
procedures so that they need not “continue to invest scarce judicial resources in
addressing repetitive and frivolous claims”); Brown v. State, 2014 WL 4264923, at *3
(Del. Aug. 28, 2014) (same for postconviction proceedings); State v. Anderson, 2014 WL
5169321, at *2 (Del. Super. Ct. Oct. 10, 2014) (same).
26
       Cochran v. State, 2005 WL 3357633, at *1 (Del. Dec. 8, 2005).
27
       Davis v. State, 1999 WL 486736, at *1 (Del. May 10, 1999).



                                         -8-
      NOW, THEREFORE, IT IS ORDERED that Devon D. Reed’s

third motion for reduction of sentence is DENIED.



                                           /s/ Paul R. Wallace
                                           Paul R. Wallace, Judge

Original to Prothonotary
cc: Mark A. Denney, Deputy Attorney General
    Mr. Devon D. Reed, pro se
    Investigative Services Office




                                   -9-
