     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                 IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                   )
                                     )
                                     )
v.                                   )          ID No. 1309014924
                                     )
                                     )
STEVEN L. BENNETT,                   )
                                     )
                   Defendant.        )


                         Submitted: March 27, 2015
                          Decided: April 13, 2015


     ORDER DENYING SECOND MOTION TO MODIFY SENTENCE


       This 13th day of April, 2015, upon consideration of the Defendant’s

Second Motion for Sentence Modification, and the record in this matter, it

appears to the Court that:

       (1)   Defendant Steven L. Bennett was before the Court for

sentencing after having earlier pleaded guilty to two counts of third degree

burglary, one count of second degree conspiracy, and one count of

misdemeanor theft.1      The offenses arose from two different criminal


1
      See Plea Agreement, State v. Steven L. Bennett, ID Nos. 1309014446 and
1309014924 (Del. Super. Ct. Mar. 24, 2014).
episodes but, because Bennett waived indictment and entered into one

dispositive plea agreement, they were heard in one proceeding. At his

August 29, 2014 sentencing hearing, Bennett was sentenced for one of those

burglary counts (N13-10-0628I) to serve: effective June 13, 2014, three

years at Level V, the balance of which was suspended after Bennett served

one year for two years at Supervision Level IV-DOC Discretion, which is

then suspended after Bennett serves six months at Level IV-DOC Discretion

for one year at Supervision Level III.2 Bennett was also sentenced to serve:

(1) for burglary third degree – three years at Level V, suspended in its

entirety for three years at Supervision Level IV-DOC Discretion, which is

then suspended after Bennett serves six months at Level IV-DOC Discretion

for one year at Supervision Level III; (2) for conspiracy second degree – two

years at Level V, suspended in its entirety for one year at Supervision Level

II; (3) for misdemeanor theft – one year at Level V, suspended in its entirety

for 1 year at Supervision Level I; and (4) for VOP (misdemeanor attempted




2
      Sentencing Order, State v. Steven L. Bennett, ID Nos. 1309014446 and
1309014924 (Del. Super. Ct. Aug. 29, 2014)



                                     -2-
theft) – six months at Level V. 3 Bennett filed no direct appeal from his

conviction or sentence.

       (2)    Just over a month after he was sentenced, Bennett filed a

motion under Superior Court Criminal Rule 35(b) requesting reduction or

“restructuring” of his Level V and Level IV terms. 4 His request was based,

in part, on his claim that he “would not be able to utilize the furlough portion

of the Level 4 work-release to better his self [sic] and reinnerate [sic] his self

[sic] back into the community.” 5 That motion was denied. 6

       (3)    Bennett filed the present motion under Rule 35(b) requesting

again that the terms of his Level IV supervision be amended or reduced. In

short, Bennett requests that he spend no time at Level IV but go directly to

Supervision Level III upon his release from prison.                     This relief is

appropriate, he suggests, because: (1) he intends to reside in Maryland after

3
        Id.; VOP Sentencing Order, State v. Steven L. Bennett, ID No. 111206743 (Del.
Super. Ct. Aug. 29, 2014). Bennett makes no application regarding these sentences for
the other counts or the VOP, so the Court addresses them no further here.
4
        Super. Ct. Crim. R. 35(b) (providing that, under certain conditions, the Court may
reduce a sentence of imprisonment on an inmate’s motion; providing also that the Court
may reduce a term or the conditions of partial confinement or probation); 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.”).
5
       Def. 1st Rule 35(b) Mot. at 1. (D.I. 8).
6
        State v. Steven L. Bennett, ID Nos. 1309014446 and 1309014924 (Del. Super. Ct.
Oct. 9, 2014) (Order – denying first Rule 35(b) motion) (D.I. 9).



                                            -3-
his incarceration; (2) he has employment potentials in Maryland; (3) he has

participated in programs while incarcerated; and (4) he is remorseful.7

       (4)    The     Court     may     consider     Bennett’s     motion       “without

presentation, hearing or argument.”8 The Court will decide his motion on

the papers filed and the complete sentencing record in Bennett’s case.

       (5)    When considering motions for sentence modification, this

Court addresses any applicable procedural bars before turning to the merits.9

Bennett suggests that there are no bars to consideration of his request under

Rule 35(b). 10 Not so. While Bennett’s motion – one seeking modification

of a term of partial confinement or probation – is not subject to Rule 35’s

90-day time bar, 11 it can and should be denied because it is repetitive. 12



7
       Def. Rule 35(b) Mot. at 1-3.
8
       Super. Ct. Crim. R. 35(b).
9
       State v. Reed, 2014 WL 7148921, at *2 (Del. Super. Ct. Dec. 16, 2014).
10
       Def. Rule 35(b) Mot. at 1.
11
        See Iverson v. State, 2009 WL 2054563 (Del. July 16, 2009) (finding this Court
erred in holding that motion for modification of Level IV time was subject to ninety-day
period).
12
        Teat v. State, 2011 WL 4839042, at *1 (Del. Oct. 12, 2011) (finding this Court
erred in holding that motion for modification of Level IV time was subject to ninety-day
period, but “the Superior Court’s judgment denying Teat’s motion for sentence
modification may be affirmed on the independent and alternative grounds that the motion
was repetitive and Teat had provided no additional information to merit as sentence
modification . . . [and] find[ing] no abuse of the Superior Court’s discretion in denying
Teat’s motion on these independent and alternative bases”); State v. Weidlow, 2015 WL

                                          -4-
       (6)    But in addition to being procedurally barred, Bennett’s request

also does not merit relief. A Level IV term, i.e., a period in a highly

structured community-based supervision setting, is a component of

Bennett’s sentence that is integral to the Court’s overall “sentencing

scheme” or “plan.”13         Here the Court finds that a term of Level IV

supervision in such a setting will facilitate Bennett’s rehabilitation and

transition after incarceration.        The Court has fully reviewed Bennett’s

application, the record of the three subject cases (ID Nos. 1309014446,

1309014924 and 111206743), Bennett’s supervision history, and all

sentencing information available. The Court finds the challenged aspect of

its sentence remains appropriate for the reasons stated at the time of

sentencing and when it decided Bennett’s first Rule 35(b) motion. 14




1142583, at *1-2 (Del. Super. Ct. Mar. 11, 2015) (bar to repetitive motions also
applicable to requests for modification of a Level IV term of a sentence).
13
       See Defoe v. State, 750 A.2d 1200, 1202 (Del. 2000).
14
        State v. Steven L. Bennett, ID Nos. 1309014446 and 1309014924 (Del. Super. Ct.
Oct. 9, 2014) (upon Bennett’s timely application, the Court exercised its broad discretion
under Rule 35(b) to revisit its sentencing judgment and, given the aggravating and
mitigating factors present, found the terms of Bennett’s sentence remained appropriate).



                                           -5-
       (7)    In turn, the Court will exercise its discretion 15 under Rule 35(b)

and DENY Bennett’s request to reduce or modify the Level IV term of his

sentence.

                             SO ORDERED this 13th day of April, 2015.


                             /s/ Paul R. Wallace
                             PAUL R. WALLACE, JUDGE

Original to Prothonotary

cc: Julie A. Finocchiaro, Deputy Attorney General
    Dade D. Werb, Esquire
    Mr. Steven L. Bennett, pro se
    Investigative Services Office




15
        Rondon v. State, 2008 WL 187964, at *1 (Del. Jan. 15, 2008) (“The merit of a
sentence modification under Rule 35(b) is directed to the sound discretion of the Superior
Court.”); Kiser v. State, 2010 WL 5141242, at *1 (Del. Dec. 10, 2010) (same for motion
that seeks reduction or modification of partial confinement).



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