              IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                          :
                                            :       ID No. 9503016771
                 v.                         :       In and For Kent County
                                            :
LEVAUGHN WALKER,                            :
                                            :
              Defendant.                    :

                                        ORDER

                               Submitted: January 17, 2017
                                Decided: February 8, 2017

         On this 8th day of February 2017, having considered Defendant=s Motion for
Modification of Sentence, and the State=s response, it appears that:
         1.      In March 1995, 16-year old Petitioner Levaughn Walker (AMr.
Walker@) was charged with the murder of Nicole Mosley. A jury found Mr. Walker
guilty of Murder in the Second Degree, Possession of a Deadly Weapon During the
Commission of a Felony, and Misdemeanor Theft. On April 18, 1996, the Superior
Court sentenced Mr. Walker to a combined 38 years of incarceration and then
decreasing levels of probation. To date, Mr. Walker has been incarcerated for
nearly twenty two years of his thirty eight year sentence. He now petitions the
Court for a reduction of his prison sentence because he was a juvenile at the time of
the offense.
         2.      After Mr. Walker was convicted and sentenced, the United States
Supreme Court issued its decision in Graham v. Florida.1     In the Graham case, the
Court held that the Eighth Amendment prohibits a court from sentencing a juvenile
1
    560 U.S. 48 (2010).
to life without the possibility of parole for a non-homicide crime.2 There, the Court
provided, in the context of such sentences, that a juvenile offender must be given the
opportunity to demonstrate growth and maturity. 3 Following the Graham case, the
United States Supreme Court decided Miller v. Alabama.4 There, the Court held
that mandatory sentences of life in prison without the possibility of parole for
homicide offenses committed by those under the age of eighteen violate the Eighth
Amendment=s prohibition against cruel and unusual punishment. 5 These Supreme
Court decisions acknowledge that juveniles are fundamentally different from adults
for purposes of sentencing and those differences make them generally less culpable. 6
In this regard, the Supreme Court also emphasized the need for these offenders to
have the opportunity to show growth and maturity upon reaching the age of
majority, which in some circumstances, should weigh in favor of their early release. 7
          3.        In order to ensure the constitutionality of Delaware=s sentencing
scheme, Delaware=s General Assembly amended 11 Del. C. § 4204A on June 4, 2013
to address the confinement of youth convicted in the Superior Court. 8 That statute
provides a mechanism to reassess lengthy juvenile sentences. In reflection of this
statutory change and the Supreme Court=s direction, the Delaware Sentencing




2
    Id. at 74B75.
3
    Id. at 79.
4
    132 S.Ct. 2455 (2012).
5
    Id. at 2464.
6
    Id. at 2464.
7
    Id. at 2469.
8
    79 Del. Laws ch. 37, sec. 4 (2013) (codified at 11 Del. C. ' 4204A).


                                                  2
Accountability Commission (ASENTAC@) amended its Benchbook to reflect that
juveniles require different sentencing considerations. 9
         4.      Mr. Walker seeks to modify his sentence pursuant to 11 Del. C. §
4204A and Superior Court Criminal Rule 35A. Specifically, he seeks relief from
his remaining term of incarceration and requests release into the community through
the Way Home reentry program in Sussex County. As Mr. Walker is petitioning
the Court for a sentence modification, he bears the burden of providing the Court
with sufficient evidence to justify an evidentiary hearing on this matter and
ultimately bears the burden to establish that he is entitled to a sentence modification.
The statute at issue, 11 Del. C. § 4204A, provides that
         any offender sentenced to an aggregate term of incarceration in
         excess of 20 years for any offense or offenses other than murder
         first degree that were committed prior to the offender=s
         eighteenth birthday shall be eligible to petition the Superior
         Court for sentence modification after the offender has served 20
         years of the originally imposed Level V sentence.

         5.      Since Mr. Walker committed his crimes at the age of sixteen, was
sentenced to more than twenty years of incarceration for crimes other than Murder
First Degree, and has served more than 20 years of the imposed Level V sentence, he
is statutorily entitled to petition the Superior Court for a sentence modification.
Superior Court Criminal Rule 35A controls the process for review of such petitions.
This Rule recognizes the Court’s discretion to grant or deny the modification
request.10 Furthermore, the Rule provides for the Court to consider the motion
                                                                                         11
Awithout presentation, hearing or argument unless otherwise ordered by the court. @

9
  Delaware Sentencing Accountability Commission Benchbook, Exceptional Sentences (effective
2013).
10
     Superior Court Crim. R. 35A (d)(2).
11
     Id. at 35A(d)(1).


                                            3
Rule 35A makes it clear that it is a discretionary matter for the Court to determine (1)
whether a hearing is appropriate and (2) whether to grant a sentence reduction.
       6.      In Mr. Walker=s Motion for Modification of Sentence, he asks the Court
to consider the mitigating factors outlined in the Miller decision as well as the
SENTAC Benchbook’s enumerated factors. 12                    In furtherance of his motion, a
forensic psychiatrist examined Mr. Walker to assist the Court in considering these
relevant factors.
       7.      In response, the State argues that a hearing is unnecessary to consider
Mr. Walker=s petition for a sentence modification and that the Court should decide
this matter solely on the basis of Mr. Walker=s written motion and the State=s
response. The State argues that the sentencing court, in imposing its original
sentence, considered the factors later identified in Miller and the SENTAC
Benchbook. Accordingly, the State asserts that there is no reason for the Court to
grant a hearing on the motion.
       8.      Here, the Court has discretion to grant a sentence modification pursuant
to 11 Del. C. § 4204A and Rule 35A when the offender shows sufficient growth,
maturity or other such mitigating factors.                Mr. Walker=s motion attempts to
demonstrate the presence of mitigating factors including growth and maturity by
emphasizing a lack of prison disciplinary infractions over the last ten years as well as
his participation in prison education programs. The written submissions, however,

12
   The Court, in Miller, took into consideration that juveniles Aare more vulnerable . . . to negative
influences and outside peer pressures, including from their family and peers, they have limited
control over their own environment and lack the ability to extricate themselves from horrific,
crime-producing settings. And because a child=s character is not well formed as an adult=s his
traits are less fixed and his actions are less likely to be evidence of irretrievable depravity.@ 132
S.Ct. 2455, 2458 (2012) (quoting Roper v. Simmons, 543 U.S. 551, 570) (citation omitted). The
SENTAC Benchbook instructs sentencing judges to consider the age and developmental
attributes, family and home environment, familial and peer pressure, mental health and medical
history, academic and learning capacity, circumstances of the offense/juvenile=s participation,
level of sophistication, rehabilitation, and other factors.



                                                  4
evidence that Mr. Walker has accumulated serious prison violations well into
adulthood. Furthermore, taking responsibility for one=s actions is a significant
factor evidencing growth and maturity. After becoming an adult, Mr. Walker
consistently failed and continues to fail to take full responsibility for Ms. Mosley=s
murder. Accordingly, for these reasons and those that follow, the Court will deny
the motion without a hearing.
         9.     First and foremost, after reviewing the sentencing transcript, there is no
evidence that the sentencing judge imposed the thirty-eight year sentence with the
belief that Mr. Walker=s character exhibited irretrievable depravity or that he was
incapable of being rehabilitated. Furthermore, the sentencing judge considered
many of the factors outlined in Miller and those subsequently articulated in the
SENTAC Benchbook. Namely, he acknowledged the hardships that Mr. Walker
faced throughout his life including his psychological problems. The judge also
referenced the pre-sentence report that outlined Mr. Walker=s family history
including the traumas he suffered. The report also recognized his education level as
well as his physical and mental condition. This Court is satisfied, from a review of
the transcript and presentence report, that the sentencing judge considered the
factors later contemplated in Miller and the SENTAC Benchbook.
         10.    Nevertheless, in a petition such as this, the Court should be concerned
about providing the juvenile offender the ability to show growth and maturity. 13
Showing growth and maturity rightfully weighs in favor of granting a sentence
modification. However, in the particular circumstances of this case, to date, Mr.
Walker does not cite sufficient evidence to establish that he has made adequate
strides toward those goals.



13
     E.g. Graham v. Florida, 560 U.S. 48, 79 (2010).



                                                 5
       11.     One factor that can show substantial growth and maturity is taking
responsibility for one=s actions. Mr. Walker, who is now 38 years old, continues to
fail to take full responsibility for the murder of Ms. Mosley as evidenced by the fact
that he continues to communicate different versions of what took place. These
varying versions, all of which minimize his responsibility, continue well into his
adult years.
       12.     The first time Mr. Walker conveyed his version of the murder was at
the time of his arrest in 1995 when he was 16 years old. At that time, Mr. Walker
informed police that he accidently stabbed Ms. Mosley in self-defense. He claimed
that Ms. Mosley prompted her dog to attack him. In that version, in an attempt to
get the dog away from him, Mr. Walker stated that he grabbed a knife and while
swinging the knife at the dog stabbed Ms. Mosley in the abdomen.                  After this
initial blow, Mr. Walker recounted that something in the back of his mind told him
to finish her off, so he stabbed her again in the neck.
       13.     At trial, Mr. Walker, who was 17 years old at that time, changed his
version regarding the incident. He claimed that Ms. Mosley was holding $23,000
for him and owed over $40,000 to the Afoot soldiers@ who were a part of the Junior
Black Mafia. 14 Mr. Walker stated that he and four Afoot soldiers@ went to the
victim=s home that day to get their money. Mr. Walker claims that he went upstairs
to look for the money the victim was holding for him and the Afoot soldiers@ stayed
with Ms. Mosley downstairs. According to Mr. Walker, when he returned, the Afoot
soldiers@ had murdered the victim and fled.
       14.     In 2007, when Mr. Walker was well into adulthood, he continued to
deny responsibility for the crime. During that period, while at James T. Vaughn


14
  In this version of the offense, both Mr. Walker and Ms. Mosley were members of the Junior
Black Mafia.



                                              6
Correctional Center, he confronted a family member of the victim and told her that
someone else had committed the murder.       He was 28 years old at the time of that
statement.
      15.    Unfortunately, his changing versions continue to the present. In 2015,
Dr. John Northrop, a forensic psychiatrist, examined Mr. Walker in support of the
present petition. At that point, Mr. Walker was 36 years old. When describing the
murder, Mr. Walker claimed that he had given Ms. Mosley money and drugs to hold
for him. Before going to her home with three of his drug associates, he consumed
alcohol, cocaine, and altered marijuana. Upon arriving at her home, he went into
her room to search for his money. When he could not find what he was looking for,
he went downstairs and Awailed on her.@ He mentioned that he grabbed the knife
and stabbed her. He also mentioned that other people participated in the murder,
but that he was the only one who had a weapon. When discussing the crime with
Dr. Northrop, Mr. Walker expressed remorse, and Dr. Northrop characterized his
statements as evidence of Mr. Walker taking responsibility for his actions.
      16.    Finally, in December 2016, at the request of the State, Dr. Robert
Thompson, a forensic psychologist, examined Mr. Walker who was 38 years old at
the time of this statement. During that examination, he again changed his version
of events. Namely, he told Doctor Thompson that he received a ride to Ms.
Mosley=s home but those who provided him transportation played no role in the
murder. Mr. Walker stated he intended to rob her. Once he was inside Ms.
Mosley=s home, the two allegedly used cocaine together. Afterward, when she
refused to let him take her car, he grabbed a knife. Mr. Walker then claimed in this
version that he intended just to scare her into surrendering the car. However, when
Ms. Mosley saw him grab the knife, she grabbed his hand. Mr. Walker claims that
a struggle ensued, which resulted in him stabbing her. After the initial wound, Ms.
Mosley kept fighting so Mr. Walker Akept stabbing.@ When she tried to flee the

                                         7
house, Mr. Walker pulled her back and stabbed her additional times. He then went
upstairs to find more drugs. He was unable to find any and was worried that he was
taking too long. Therefore, he disconnected the home phone, took the answering
machine tape, and left.
       17.    Each time Mr. Walker recounted the murder, he had a different version
of events. Even well into adulthood, he provided markedly different versions on
three different occasions. The two most recent of Mr. Walker=s statements about
the murder are the most troubling as Mr. Walker provided those differing accounts
to psychologists examining him in furtherance of this motion. Namely, despite the
fact that he knew the psychologists were examining him for purposes of this motion,
he was still unable to provide a single, truthful account of the event. Mr. Walker =s
various versions of what occurred on the day he murdered Ms. Mosley evidences
that Mr. Walker has not developed the growth and maturity necessary to justify a
sentence modification. The Court considers his failure to accept responsibility to be
a factor that increases the chance he could reoffend.
       18.    In support of his petition, Mr. Walker also emphasizes that there is no
evidence of any disciplinary violations since his relocation to a prison in New
Jersey. Also, he emphasizes his participation in a number of education and training
programs offered in the prison system and has provided proof that he completed
these programs. While Mr. Walker claims that he has not committed any violations
since moving to a New Jersey prison, he makes this assertion without providing any
documentation supporting this claim. Furthermore, he is not requesting the Court
to request a DOC certification (or more aptly a certificate from the New Jersey
facility) regarding his behavior in prison despite recognizing that such a request
would be available to him. 15 The Court does not find Mr. Walker=s statement

15
  Mr. Walker maintains that a certification by DOC is only required when seeking a sentence
modification pursuant to 11 Del. C. § 4213. He asserts that a DOC certification is not required


                                              8
regarding his good behavior to be sufficient evidence of growth and maturity to
justify a hearing or ultimately a sentence modification.
       19.     Moreover, after reviewing his correctional history since reaching
adulthood, the Court does not find that his behavior when evaluated in its totality
justifies a hearing or ultimately a reduced sentence. While Mr. Walker points to his
allegation that he has not incurred additional prison violations since relocation to
New Jersey, he fails to adequately acknowledge that he committed serious violations
prior to leaving Delaware. In 2007, when Mr. Walker was 29 years old, he received
a disciplinary report for threatening to kill a guard while making a stabbing motion
with an altered pen. In 2003, when Mr. Walker was 24 years old, he received a
disciplinary report for trying to incite other inmates to riot. There, he drew a knife
on the bottom of the page he used to communicate with other inmates for purposes
of instigating the riot. In 1999, when Mr. Walker was 21 years old, he received a
disciplinary report for threatening to punch a guard. One month after Mr. Walker
turned 21, he was convicted of assault and served a 40-day term in isolation. Also
in 1999, before Mr. Walker turned 21, prison officials cited him for trying to incite a
riot among other inmates. In the documents submitted by the State, Mr. Walker is
also shown to have had several other infractions while in prison spanning from the
very beginning of his incarceration through the time he was transferred to a prison in
New Jersey.
       20.     As is consistent with his varied positions regarding the murder, Mr.
Walker also fails to take full responsibility for these violations.                   During his
examination with Dr. Thompson, Mr. Walker told the doctor that he was responsible


under a sentence modification pursuant to Rule 35A or 11 Del. C. § 4204A, and therefore, he is not
seeking the Court to order or request such a certification. That may be, but that it is procedurally
permitted in the instant motion and that he has chosen not to request it, is an additional factor
relevant to the Court=s denial of this motion.



                                                 9
for most of the infractions. However, he also told the doctor that he should consider
the context in which the infractions occurred. Namely, Mr. Walker blamed a
number of them on the fact that he was in a facility where the victim=s family
members worked.
      21.    While it is clear that Mr. Walker has failed to take full responsibility for
his actions, it is also evident to the Court that Mr. Walker has recently shown some
growth. Namely, he is taking college classes in order to obtain his associates
degree. Furthermore, Mr. Walker has obtained several certificates from the prisons
evidencing completion of various training and workshops. The college classes and
the completion of various life skills workshops are an indication that Mr. Walker has
gained a certain level of maturity and growth. However, many of the certificates
provided by Mr. Walker predate his relocation to New Jersey. A number of these
certificates are dated in and around the time he was actively accumulating the
aforementioned prison disciplinary record, well into his late twenties. Under the
circumstances of this case, the Court finds that evidence of Mr. Walker =s growth
based on his training and education to be insufficient to warrant a reduction in his
original sentence.
      22.    Finally, the Court must take into account the interest of public safety
when considering a motion for a sentence reduction that would lead to a violent
inmate=s early release.    With regard to the public safety risk, Dr. Thompson
provided the only opinion regarding Mr. Walker=s risk level. In his report, he
concluded that Mr. Walker is a moderate risk of violent and criminal recidivism in
the community. The Court finds Dr. Thompson=s opinion credible. As there is no
contrary evidence regarding a risk assessment for the Court to consider, the
moderate risk of violent and criminal recidivism also weighs into the Court’s
decision.



                                          10
      23.    After a review of the sentencing transcript, the Court finds that the
sentencing judge imposed a sentence after taking into consideration the factors later
outlined in Miller and the SENTAC Benchbook and not because of a belief that Mr.
Walker was irreparably depraved. Furthermore, Mr. Walker has not evidenced
personal growth to the extent necessary to support a sentence reduction. Moreover,
Mr. Walker continues to pose a risk to the community of violent criminal recidivism.
These factors all weigh in favor of denying Mr. Walker=s motion. After reviewing
the petition, its supporting materials, the State=s response, and the State=s supporting
materials, the Court is satisfied in making this decision without the need for an
evidentiary hearing.
      Wherefore, Mr. Walker=s Motion for Modification of Sentence is DENIED.
      IT IS SO ORDERED.


                                                      /s/Jeffrey J Clark
                                                      Judge




                                          11
