IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
V. ) I.D. No. 1802004471
)
)
BYRON P. WHITE, )
)
Defendant. )
ORDER

AND NOW TO WIT, this 13" day of November, 2019, upon consideration
of Defendant Byron P. White’s (“Defendant”) Motion for Modification of Sentence,
the sentence imposed upon the Defendant, and the record in this case, it appears to
the Court that:

1. On July 26, 2018, Defendant pleaded guilty to two counts of Rape Third
Degree.’ On September 24, 2018, Defendant was issued two consecutive sentences
of twenty-five years at Level V, suspended after two years minimum mandatory at
Level V for three years at Level III, probation to be served concurrently.” In sum,

he received four years of incarceration followed by three years at Level III probation.

 

! Final Case Review: Pled Guilty. PSI Ordered. Sentencing 09/13/2018, State of Delaware v.
Byron P. White, Crim. ID No. 1802004471, D.I. 16 (Del. Super. July 26, 2018).

* Sentence Order Filed, State of Delaware v. Byron P. White, Crim. ID No. 1802004471, D.I. 19
(Del. Super. Sept. 24, 2018).
Those four years of imprisonment are the sum of two separate two-year minimum
mandatory terms of incarceration.

2. On December 20, 2018,? Defendant asked this Court to modify his
sentence under Rule 35(b).* Defendant requests for the Court to modify/reduce his
sentence by “concurrent and any other relief the court may grant [sic].”° In support
of his motion, Defendant states eighteens grounds for relief.

Bl The sentence in Defendant’s case was imposed pursuant to a Plea

Agreement between the State and Defendant.’ After an appropriate colloquy, the

Court addressed Defendant in open court pursuant to Superior Court Criminal Rule

 

3 Defendant’s motion was initially filed on December 20, 2018 with the Kent County
Prothonotary; thereafter, due to a change of venue, it was sent to this Court and received on
August 15, 2019. The Court will apply Defendant’s original filing date in considering
Defendant’s Motion.

4 See Motion for Modification of Sentence Filed (Pro Se), State of Delaware v. Byron P. White,
Crim. ID No. 1802004471, D.I. 20 (Dec. 20, 2018); see also Motion for Modification of
Sentence Filed (Pro Se), State of Delaware v. Byron P. White, Crim. ID No. 1802004471, D.I. 21
(Aug. 15, 2019) [hereinafter “Def.’s Mot.”].

> Def.’s Mot. at pages 2-11.

6 Def.’s Mot. at pages 2-11 ((1) “No criminal record and solid reputation until this incident;” (2)
“Outstanding military record;” (3) “Mental health;” (4) “Stress on family, friends, and loved
ones;” (5) “Financial hardship;” (6) “Double jeopardy;” (7) Lack of prior knowledge regarding
ability to file a “motion to modify sentence;” (8) “[Identity] theft;” (9) “Fraud;” (10) “Religious
rights,” whereby Defendant’s access to religious material and a chaplain has been limited; (11)
“Excessive bail;” (12) “Communication;” (13) “Pressured to take a plea;” (14) “Treatment by
police,” whereby Defendant argues he was not provided “JAG” upon his request, and whereby
he was “bullied and intimidated;” (15) “Miranda rights,” whereby Defendant argues he was not
mirandized by “MP;” (16) “Treatment by Prison JTVCC;” (17) “[L]awyer,” whereby Defendant
argues that he “had no knowledge of criminal investigation” and where his “lawyer did not file
any motions in [his] defense;” and (18) “Motions and rules for filing,” whereby Defendant was
“never explained” the rules for filing).

7 Final Case Review: Pled Guilty. PSI Ordered. Sentencing 09/13/2018, State of Delaware v.
Byron P. White, Crim. ID No. 1802004471, D.I. 16 (Del. Super. July 26, 2018).

2
11(c)(1) and determined that he understood the nature of the charge to which the
plea was offered, the mandatory minimum penalty provided by law and the
maximum statutory penalties. Defendant fully acknowledged in open court that the
range of possible penalties included the sentence that was imposed by the Court in
this case.

4. Under Superior Court Criminal Rule 35(b), the Court may reduce a
sentence of imprisonment on a motion made within ninety days after the sentence is
imposed.* “Rule 35(b) allows for a reduction of sentence without regard to the
existence of a legal defect.”® Thus, relief under Rule 35(b) is within the sound
discretion of the Sentencing Court.!? Accordingly, a timely and non-repetitive Rule
35(b) motion is “essentially a ‘plea for leniency.’”’' However, 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.'* Therefore,
while Defendant’s motion is not time barred, it is nonetheless denied, where
Defendant is subject to a minimum mandatory sentence.

5. Furthermore, although Defendant does not specifically cite to any rule

in his motion, Defendant seemingly asks this Court to modify his sentence to allow

 

8 SUPER. CT. CRIM. R. 35(b) (emphasis added).

° State v. Lewis, 797 A.2d 1198, 1201 (De. 2002).

10 Td.

' 7g. at 1202 (quoting United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973).
12 State v. Sturgis, 947 A.2d 1087, 1092 (Del. 2008).

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for his two consecutive terms of minimum mandatory incarceration, to run
concurrently. In considering this request, the Court looks to 11 Del. C. § 3901 that
“provides for the fixing of terms of imprisonment.”'? This Court has held that §
3901(d) cannot be applied retroactively to modify a consecutive sentence to run
concurrently.'4 Therefore, where the Court cannot apply § 3901(d) retroactively,
Defendant’s sentences cannot be modified to run concurrently, where § 3901(d)
2019 amendments were made in June 2019 and where Defendant was sentenced in
September 2018. As such, the sentence was and remains appropriate for all the
reasons stated at the time of sentencing.

IT IS SO ORDERED that Defendant’s Motion for Modification of Sentence

is DENIED.

 

 

Vivian L. Medinilla )
Judge ( J
ad

oc: Prothonotary
cc: Defendant
Department of Justice
Investigative Services

 

'3 State v. Thomas, No. CR IN17-08-0408, 2019 WL 5704287, at *4 (Del. Super. Ct. Oct. 31,
2019) (holding that the June 25, 2019 amendments to § 3901(d), “expand[ing] Delaware
sentencing judges’ discretion to order concurrent terms of incarceration,” did not retroactively
apply to defendant’s sentence imposed before effective date of amendment).

4 Id.
