SUPERIOR COURT
OF THE
STATE OF DELAWARE

NEW CASTLE COUNTY COURTHOUSE
3500 N. KiInG STREET. SUITE 10400
WILMINGTON. DELAWARE 19801
(302) 255-0660

PAUL R. WALLACE
JUDGE

July 10, 2020

Mr. Scott W. D’ Azevedo

SBI# 653314

Howard R. Young Correctional Institution
1301 East 12" Street

Wilmington, DE 19809

RE: State v. Scott W. D’Azevedo
ID No. 1604012255
Second Motion for Sentence Reduction

Dear Mr. D’ Azevedo:

The Court is in receipt of your most recent request to modify your sentence.
(D.I. 23).

On the day you were scheduled for trial, February 28, 2017, you pleaded guilty
to one count of Possession of a Firearm by a Person Prohibited (PFBPP) in exchange
for dismissal of the other indicted charge and a favorable sentencing
recommendation.! Thereafter, you were immediately sentenced to serve for that
PFBPP conviction—which in your case was a class C violent felony—ten years at

Level V suspended after five years for two years of supervised probation.” Because

 

| Plea Agreement, State v. Scott D'Azevedo, 1.D. No. 1604012255 (Del. Super. Ct. Feb. 28,
2017) (D.I. 19) (STATE AND DEFENDANT AGREE to recommend: 10 years at Level V
suspended after the minimum mandatory 5 years for 2 years at Level III”): see also, DEL. CODE
ANN. tit. 11, § 1448(e)(1)(b) (2013).

2 Sentence Order, State v. Scott W. D'Azevedo, I.D. No. 1604012255 (Del. Super. Ct. Feb. 28,
2017) (D.1. 20).
State v. Scott W. D’Azevedo
ID No. 1604012255

July 10, 2020

Page 2 of 4

of your previous violent felony conviction, the five-year term of imprisonment for
PFBPP is a minimum term of incarceration that must be imposed and cannot be
suspended or reduced.?

Shortly after your sentencing, you docketed an application under Superior
Court Criminal Rule 35(b) requesting reduction of your Level V term.* That motion
was denied.°

Now you have filed another Rule 35(b) motion seeking sentence reduction.°
You believe that “due to the Corona Virus, Delaware may be doing early releases
which will be case by case.”’ And you suggest that your proposed sentence
reduction is appropriate “given the current circumstances and the [DOC

institutional] population decrease [] which [Delaware] may be trying to achieve.”*

 

3 DEL. CODE ANN. tit. 11. § 1448(e)(1)(b) (providing that any person convicted of PFBPP “shall
receive a minimum sentence of: Five years at Level V, if the person does so within 10 years of the
date of conviction for any violent felony or the date of termination of all periods of incarceration
or confinement imposed pursuant to said conviction, whichever is the later date”). As part of your
plea, you admitted you had a 2013 Maryland conviction for the Delaware equivalent of second
degree burglary. See Immediate Sentencing Form, State v. Scott W. D’Acevedo, 1.D. No.
1604012255 (Del. Super. Ct. Feb. 28, 2017). That was a “violent felony” under Delaware law.
DEL. CODE ANN. tit. 11, §§ 4201(c) and 4215A (2013).

4 DL. 21.
> DL. 22.
6  Def.’s 2" Rule 35 Mot., State v. Scott D'Azevedo, 1.D. No. 1604012255 (Del. Super. Ct. Apr.
22, 2020) (D.1. 23) (acknowledging that you have not yet completed your five-year term of
imprisonment but seeking “early release’”—that is, “asking for Delaware to release or suspend the

remainder of [your] sentence and release [you] to Maryland.”).

7 Id.

8 Td.
State v. Scott W. D’Azevedo
ID No. 1604012255

July 10, 2020

Page 3 of 4

But there has been no special “Corona Virus” early release rule, statute, or program
enacted by the executive, legislative, of judicial branches of Delaware; 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. When considering such applications for sentence reduction, this Court
first addresses any applicable procedural bars before turning to the merits.'' You do
not address those bars to consideration of your current Rule 35(b) motion. The Court
must.

As mentioned before, you previously filed an unsuccessful application to
reduce your sentence.'? Our Supreme Court and this Court have consistently held

that Rule 35(b) prohibits consideration of repetitive requests for sentence

reduction.'> There is no exception to the repetitive-motion bar.'' And the Court

 

° Super. Ct. Crim. R. 35(b) (providing that, under certain conditions, the Court may reduce a
sentence of imprisonment on an inmate’s motion); Jones v. State, 2003 WT. 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.”).

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

'! State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015).

S

See D.}. 21-22.

13 State v. Culp, 152 A.3d 141, 145 (Del. 2016); Redden, 111 A.3d at 608-09.

5

Culp, 152 A.3d at 144; Redden, 111 A.3d 608-09.
State v. Scott W. D’Azevedo
ID No. 1604012255

July 10, 2020

Page 4 of 4

cannot simply ignore the repetitive-motion bar to consideration of your current Rule
35(b) motion. So, on this basis alone, the Court must deny your Rule 35(b) motion.'°

But even were the repetitive-motion bar inapplicable here, the Court still has
no authority to reduce or suspend the mandatory portion of any substantive statutory
minimum sentence.'® And there is no special “Corona Virus” early release rule or
program that overcomes that prohibition either.

Again, the five years imprisonment for your PFBPP conviction is the
minimum term of incarceration that must be imposed and cannot be suspended or
reduced.'’ Your requested reduction would violate that five-year minimum required
by 11 Del. C. § 1448(e)(1)(b). And that the Court cannot do'*—even in the midst of
a pandemic.

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

sentence must be DENIED because it is repetitive and seeks relief that is statutorily

LK Beaded

Paul R. Wallace, Judge

prohibited.

cc: Prothonotary - Criminal

 

'S Culp, 152 A.3d at 145; Redden, 111 A.3d 608-09.

16 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).

'7 See Kelly v. State, 2019 WL 6048093, at *1 (Del. Nov. 14, 2019).

'8 Td. at *2 (“To the extent Kelley seeks reduction of his PFBPP sentence under Rule 35(b), the
Superior Court cannot reduce the mandatory portion of Kelley’s sentence.).
