IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
ID No. 0307006566 &
v. : 0508026393
' In and For Kent County
LOUIS J. TOLSON,

Defendant.

ORDER

Submitted: August 16, 2018
Decided: October 12, 2018

On this 12th day of` October 2018, upon consideration of` Petitioner Louis J.
Tolson’s motion f`or modification of` sentence pursuant to Superior Court Criminal
Rule 35(b), and the State’s response in opposition to the motion, it appears to the
Court that:

l. Petitioner Louis J. Tolson (hereinafter “Mr. Tolson”) moves for a
modification of` his February lO, 2006 sentence. In 2006, the Court sentenced Mr.
Tolson to twenty years of unsuspended Supervision Level V time, followed by
decreasing levels of probation for drug trafficking and a weapons related offense.
This motion is well outside the timeline f`or filing motions for modification pursuant
to Superior Court Criminal Rule 35(b) (hereinafter “Rule 35(b)).”l Nevertheless,
the sentencing Judge included, as a term in Mr. Tolson’s sentencing order, a

provision recognizing that the State “agrees to a review of sentence af`ter the

 

1 See State v. Culp, 152 A.3d. l4l, 144-145 (Del. 2016) (holding that the Superior Court may only
consider an application af`ter more than 90 days if extraordinary circumstances exist or pursuant to
the procedure set forth in ll Del. C. §4217).

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defendant serves 7 1/2 years at level 5.” By including that provision in the sentencing
order, the Court retained jurisdiction to consider a sentencing modification outside
Rule 35(b)’s time requirements2

2. Mr. Tolson had originally petitioned pursuant to ll Del. C. §4214(f) for a
certificate of eligibility to modify his sentence. The Court issued a December 20,
2017 Order finding him ineligible to modify his sentence pursuant to that procedure.
The Court clarified in its Order, however, that he remained free to move for a
modification of his sentence because of the retained jurisdiction in his original
sentencing order.

3. Mr. Tolson now moves for a reduction in his sentence because he alleges
he is rehabilitated. He also emphasizes that he is fifty-two years old, has served
approximately fourteen years of his sentence, and has taken substantial steps toward
furthering his education while incarcerated In support of his motion, he includes
eight certificates evidencing completion of educational and self-improvement
programs As an exhibit, he also included a Pennsylvania State University study
discussing the relationship between age and recidivism.

4. The State filed a detailed response opposing the motion and references
two reasons for its opposition. First, the State emphasizes the nature of his 2005
charges and his drug dealing history. Second, the State relies heavily upon Mr.
Tolson’s disciplinary record while incarcerated In the State’s written opposition, it
attached his disciplinary records. lt emphasizes that as recently as July 2015, Mr.
Tolson was found to be defiant of authority. More recently, through 2017, Mr.

Tolson was often not in his cell when required, and was found to be in possession of

 

2 See State v. Walls, 911 A.2d 804, 2006 WL 29504 491, at *2 (Del. Oct. 17, 2006)(TABLE)(stating
that the Superior Court retained jurisdiction to modify defendant’s sentence based on its inherent
authority to modify a sentence); See also State v. Remedio, 108 A.3d 326, 330-31 (Del. Super. Ct.
2014)(indicating that the inherent authority of the Superior Court may be exercised, where the
sentencing judge reserved the authority to modify a sentence).

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contraband The State also notes that Mr. Tolson, since 2010, has twice been
upgraded to maximum security based on his conduct. Furthermore, as recently as
early 2018, the Department of Correction upgraded Mr. Tolson to medium security
based on recent conduct.

5. The Court has considered the fact that Mr. Tolson’s sentence, if issued
today may have generated a lesser sentence than that imposed in 2006. Furthermore,
the Court has considered the support of Mr. Tolson’s family and friends who
appeared at the hearing on August 16, 2018. They assured the Court that they would
provide him structure and support to help reintegrate him into the community. The
Court does not question the genuineness of their offer.

6. However, the Court has also carefully reviewed Mr. Tolson’s prison
disciplinary record Some other infractions include defiance of authority and
physically resisting correctional officers who tried to correct him. Some are properly
characterized as violent, although his violent infractions primarily occurred during
his earlier years of confinement In January 2018, the Department of Correction
increased Mr. Tolson’s classification to medium security because of three
institutional misconduct reports. He also has been reclassified to maximum security
because of misconduct as recently as January 2016. In all, the Court counts 92
institutional disciplinary write-ups since Mr. Tolson’s initial incarceration

7. The Court has also considered Mr. Tolson’s more recent conduct while
incarcerated Approximately thirty days before Mr. Tolson filed his written motion
for modification of sentence, he received a write-up for being off limits and was
found guilty of that offense. Approximately one week after he filed his written
motion in April 2018, he received another write up but was found not-guilty of that
offense. At the hearing for his motion, he admitted that after the April 2018 write-
up, he had at least two additional write-ups prior to the August hearing.

8. In deciding whether Mr. Tolson’s sentence should be reduced, the Court

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must necessarily evaluate Mr. Tolson’s conduct while incarcerated Prior to his
incarceration, he had a significant criminal history. Given his persistent violation of
institutional rules, the Court does not find that he has sufficiently demonstrated his
rehabilitation It is, therefore, appropriate to deny his motion for a reduction of
sentence.

9. In recognition of two circumstances, however, the Court will permit Mr.
Tolson to file one additional motion for reduction of sentence no sooner than
eighteen months from the date of this Order. First, Mr. Tolson obviously has
supportive family members who persuasively represented their desire to help him
successfully transition into the community. Second, Mr. Tolson’s maj or and
sometimes violent violations have generally decreased since the initial part of his
Level V sentence, Accordingly, if Mr. Tolson files an additional motion, the State
will be requested to secure his prison disciplinary records from April 27, 2018, to
the time the Court considers any such motion, so the Court can review them.
Obviously, the Court will carefully review Mr. Tolson’s prison record in the event
of a renewed motion for reduction of sentence.

WHEREFORE, based on the reasons discussed, Mr. Tolson’s motion for
reduction of sentence is DENIED.

IT IS SO ORDERED.

 

JJC:klc

sc: Gregory Babowal, DAG
Stephen Welch, DAG
Anthony A. Figliola, Jr., Esq.

