SUPERIOR COURT
OF THE
STATE OF DELAWARE

PAUL R. WALLACE NEW CASTLE COUNTY COURTHOUSE

500 N. KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801
(302) 255-0660

JUDGE

Date Submitted: April 22, 2020
Date Decided: July 15, 2020

Ms. Kellie A. Pulgini

SBI# 870940

Hazel D. Plant Women’s Treatment Facility
620 Baylor Boulevard

New Castle, Delaware 19720

RE: State v. Kellie A. Pulgini
ID No. 1712012254
Motion for Sentence Reduction
Dear Ms. Pulgini:
The Court is in receipt of your recent request to reduce or modify your sentence.
(D.I. 35).
In January 2019, you pleaded guilty at your final case review to one count of
Theft of an Amount in Excess of $100,000 (Theft=$100,000), a class B felony, and to
two counts of Theft of an Amount in Excess of $50,000 (Theft=$50,000), both class D
felonies.' You were sentenced several months later, on April 26, 2019, to serve:
(1) for Theft >$100,000—25 years at Level V suspended after serving two years at
Level V for one year of Level III supervised probation; (2) for Theft>$50,000—eight
years at Level V suspended in whole for concurrent Level III supervised probation; and

(3) for Theft >$50,000—two years at Level V suspended in whole for another term of

 

! Plea Agreement and TIS Guilty Plea Form, State v. Kellie A. Pulgini, 1.D. No. 1712012254
(Del. Super. Ct. Jan. 7, 2019) (D.I. 19).
State v. Kellie A. Pulgini
ID No. 1712012254
July 15, 2020

Page 2 of 7

concurrent Level III supervised probation” The two years of unsuspended
imprisonment comprise a minimum term of incarceration that must be imposed and
cannot be suspended.? Because the Court revoked bail upon the entry of your plea,'
the effective date of your sentence is January 7, 2019.°

You have now filed a motion seeking sentence reduction or modification.® You
report that you are now “at level 4 work release” and ask “for a modification of sentence
_.. for Level 4 Home Confinement or time served with level 3 probation.”’ You suggest
that your proposed sentence reduction is appropriate because of your good behavior
while incarcerated and the difficulties you claim the coronavirus has caused for those
housed in work release centers.®

“When addressing a sentence modification request, the Court first identifies the

specific procedural mechanism the inmate attempts to invoke; it must then determine

 

2 Sentence Order, State v. Kellie A. Pulgini, 1.D. No. 1712012254 (Del. Super. Ct. Apr. 26,
2019) (D.I. 22).

3 DEL. CODE ANN. tit. 11, § 841(c)(3) (2016) (Theft>$100,000 is a class B felony); id. at tit. 11,
§§ 4205(b)(2) & (d) (sentence “[f]or a class B felony [is] not less than 2 years . . . [and any]
minimum, mandatory, mandatory minimum or minimum mandatory sentence [ ] required by
subsection (b) of [§ 4205] . . . shall not be subject to suspension by the court”).

4 DI. 20.

> See D.I. 22.

6 Def.’s Sent. Red. Mot., State v. Kellie A. Pulgini, 1.D. No. 1712012254 (Del. Super. Ct. Apr.
22, 2020) (D.I. 35).

7 Id.

8 Id.
State v. Kellie A. Pulgini
ID No. 1712012254
July 15, 2020

Page 3 of 7

whether that mechanism is available under the circumstances.”” The relief you seek is
governed by this Court’s Criminal Rule 35(b).!° The Court may, therefore, consider
your request “without presentation, hearing or argument.”!! The Court will decide your
motion on the papers filed and the complete record in your case.

Rule 35 provides for varying forms of relief to those at varying levels of
correctional supervision.!?_ And those several forms of relief are subject to differing
procedural bars and exceptions.!? When considering such applications for sentence
reduction, this Court first addresses any applicable procedural bars before turning to the
merits.'4 You do not address any potential bars (or any potential exceptions thereto)
applicable to your Rule 35(b) motion. The Court must. And to do so, the Court must

first identify which specific term of your sentence you are serving.

 

9 State v. Tollis, 126 A.3d 1117, 1119 (Del. Super. Ct. 2016). See e.g., State v. Culp, 152 A.3d
141 (Del. 2016) (Delaware Supreme Court examines the several sources of authority a trial court
might have—but that were then inapplicable or unavailable—when the trial court reduced
sentence); see also State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015) (When considering
requests for sentence modification, “this Court addresses any applicable procedural bars before
turning to the merits.”’).

10 Jones vy. 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.”).

1 Super. Ct. Crim. R. 35(b).

12 Id. (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).

3 See e.g., Teat v. State, 2011 WL 4839042, at *1 (Del. Oct. 12, 2011) (finding this Court erred
in holding that Rule 35(b) motion for modification of a Level IV term was subject to the ninety-
day period applicable only to motions to reduce terms of imprisonment).

14 Redden, 111 A.3d at 606.
State v. Kellie A. Pulgini
ID No. 1712012254
July 15, 2020

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As mentioned before, you wrote that you are currently at the Hazel D. Plant
Women’s Treatment Facility—a Level IV work release center. But how can that be?
The Court’s sentence included no Level IV term and you have been imprisoned for just
over 18 months of a mandatory two-year Level V term. It is because, as the Department
of Correction (or DOC) has reported, you are currently housed at a Level IV work
release center under the provisions of 11 Del. C. § 4205ch).

Under § 4205(h), the DOC, in exercising its control over those sentenced, “may
house Level V inmates at a Level IV work release center or halfway house during the
last 180 days of their sentence.”!> “The levels of sentencing are distinguished by the
amount of control the Department of Correction exercises over a convicted offender.”'®
The defining characteristic of a Level V sentence is that Level V time involves “the
commitment of the offender to the Department of Correction for a period of
incarceration.”!’ For the most part, that means classification and placement of a Level
V inmate in one of Delaware’s prisons.

But it is the commitment by the sentencing court and the statutorily defined
control exercised by the DOC—not just the actual circumstances of an inmate’s
housing—that comprises Level V accountability. And housing a Level V inmate in a

Level IV facility neither changes the commitment ordered by the sentencing Court nor

modifies that inmate’s sentence in anyway. Indeed, it cannot.

 

1S DEL. CODE ANN. tit. 11, § 4205(h) (2016).
16 Weaver y. State, 779 A.2d 254, 257-58 (Del. 2001).

17 Jd. (quoting 11 Del. C. § 4204(c)(5)).
State v. Kellie A. Pulgini
ID No. 1712012254
July 15, 2020

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As § 4205(h) clearly states, during that last 180 days of a Level V term the DOC
“may house [a] Level V inmate[] at a Level IV work release center.”'® This statute
merely provides the DOC a bit more classification and housing authority than it
otherwise has over some Level V inmates; it does not grant DOC sentence reduction or
modification power. In fact, when the DOC exercises its § 4205(h) discretion, it does
not change a single term of the sentence. Put simply, § 4205(h) grants the DOC limited
discretion to house one who otherwise should be in a prison setting during the last 180
days of her sentence in a work release or halfway house facility instead. It does not
convert that last 180 days to a Level IV term. So you are currently a Level V inmate
still serving your Level V term; you’ve just received the benefit of more favorable
housing to complete the final 180 days of that Level V term.

Why do these distinctions matter? Two reasons. First, they mean that Rule
35(b)’s rules, bars, and exceptions governing a motion to reduce a sentence of
imprisonment are applicable here. And second, they ensure that your sentence remains
legal.

“Rule 35(b) requires that an application to reduce imprisonment be filed
promptly—i.e. within 90 days of the sentence’s imposition—‘otherwise, the Court
loses jurisdiction’ to act thereon.”!? 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.””° A heavy burden

 

18 DEL. CODE ANN. tit. 11, § 4205(h) (2016) (emphasis added).
19 Redden, 111 A.3d at 607 (internal citations omitted).
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).
State v. Kellie A. Pulgini
ID No. 1712012254
July 15, 2020

Page 6 of 7

is placed on the inmate to establish “extraordinary circumstances” in order to uphold
the finality of sentences.”!

The term “extraordinary circumstances” is generally defined as “[a] highly
unusual set of facts that are not commonly associated with a particular thing or event.”
“And for the purposes of Rule 35(b), ‘extraordinary circumstances’ have been found
only ‘when an offender faces some genuinely compelling change in circumstances that
makes a resentencing urgent.’”’? In short, Rule 35(b) is a rule limited to reconsideration
and altering of a sentence after the 90-day motion deadline “only when there is a truly
compelling change in that inmate’s individual circumstances that presents an urgent
need for revision of the sentence’s terms.””4

You filed this motion almost a year after you were sentenced. But your reasons
for relief—rehabilitative efforts and currently limited work release opportunities—are
inadequate to shoulder the heavy burden placed on one to establish “extraordinary

circumstances” under Rule 35(b).”°

 

21 State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015) (“In order to uphold the finality
of judgments, a heavy burden is placed on the defendant to prove extraordinary circumstances
when a Rule 35 motion is filed outside of ninety days of the imposition of a sentence.”).

22 Diaz, 2015 WL 1741768, at *2 (citing BLACK’s LAW DICTIONARY (10th ed. 2014)); id.
(Observing also that, in the Rule 35(b) context, “‘extraordinary circumstances’ are those 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. Remedio, 108 A.3d 326, 332
(Del. Super. Ct. 2014).

23 State v. Thomas, 220 A.3d 257, 262 (Del. Super. Ct. 2019) (quoting Fountain v. State, 139
A.3d 837, 842 n.20 (Del. 2016)).

24 Id.
25 See State v. Culp, 152 A.3d 141, 145-46 (Del. 2016) (collecting cases) (participation in

educational and rehabilitative programs does not constitute “extraordinary circumstances” for
purposes Rule 35(b)); Redden, 111 A.3d at 607-08.
State v. Kellie A. Pulgini
ID No. 1712012254
July 15, 2020

Page 7 of 7

But even were Rule 35(b)’s time bar inapplicable here, the Court has no authority
to reduce or suspend the mandatory portion of any substantive statutory minimum
sentence.”® Again, you are still serving the two-year term of imprisonment for your
Theft >$100,000 conviction. And again, that is the minimum term of incarceration that
is required and cannot be suspended or reduced.” Your requested reduction would
violate that two-year minimum required by 11 Del. C. §§ 841(c)(3), 4205(b)(2) and
4205(d). That the Court cannot do.?8

NOW, THEREFORE, IT IS ORDERED that your motion for reduction or

modification of sentence must be DENIED because it is both time-barred and seeks

YBewdZ>

Paul R. Wallace, Judge

relief that is statutorily prohibited.

cc: Prothonotary - Criminal
Joseph E. Gibbs-Tabler, Esquire
Patrick J. Collins, Esquire

 

26 State v. Sturgis, 947 A.2d 1087, 1092 (Del. 2008) (“Superior Court Rule of Criminal Procedure
35(b) provides no authority for a reduction or suspension of the mandatory portion of a substantive
statutory minimum sentence.”) (emphasis in original).

27 See n.3, supra.

28 See State v. Williams, 2015 WL 757551, at *2 (Del. Super. Ct. Feb. 19, 2015) (Addressing a
request to reduce a two-year minimum term imposed for a class B felony and holding “while
the Court has wide discretion to reduce a sentence upon a timely Rule 35 application, the Court
has no authority to reduce or suspend the mandatory portion of any substantive statutory minimum
sentence.); State v. McFarland, 2020 WL 3564615, at *2 (Del. Super. Ct. July 1, 2020) (“[T]Jhe
Court has no authority to reduce or suspend the mandatory portion of any substantive minimum
sentence.”); see also Kelly v. State, 2019 WL 6048093, at *2 (Del. Nov. 14, 2019) (“To the extent
Kelley seeks reduction of his [] sentence under Rule 35(b), the Superior Court cannot reduce the
mandatory portion of Kelly’s sentence.”).
