       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                             )
                                               )
       v.                                      )            ID No. 1603012462
                                               )
DAVID A. CROSBY-AVANT,                         )
                                               )
       Defendant.                              )

                             Date Submitted:        May 11, 2020
                             Date Decided:          May 19, 2020

                                           ORDER

       Upon consideration of Defendant’s Motion to Modify Probation Sentence

(“Motion”), State’s response thereto, Superior Court Criminal Rule 35, statutory and

decisional law, and the record in this case, IT APPEARS THAT:

       1.      On February 22, 2017, Defendant was found guilty of two counts of

Possession of a Firearm by a Person Prohibited (“PFBPP”) and Assault Third

Degree.1 By Order dated November 17, 2017,2 effective July 20, 2016, Defendant

was sentenced as follows:           for PFBPP, IN16-04-0017, 10 years at Level V,

suspended after 5 years, for 6 months at supervision Level IV Work Release,

followed by 1 year at supervision Level III;3 for PFBPP, IN16-04-1664, 5 years at




1
  D.I. 26
2
  D.I. 44
3
  The first 5 years of this sentence is a mandatory term of incarceration pursuant to 11 Del. C. §
1448.
Level V, suspended for 1 year at supervision Level III; for Assault Third Degree,

IN16-04-1662, 1 year at Level V, suspended for 1 year at supervision Level II.4

       2.      In the instant Motion, Defendant asks the Court to modify his 6 months

of Level IV Work Release on PFBPP, IN16-04-0017, to 6 months of Level IV Home

Confinement or 6 months Level III supervision.5                 In support of this request,

Defendant cites his commitment to care for his daughter, successful completion of

educational and rehabilitative programs while incarcerated, and desire to reintegrate

back into society and build a better life for his family.6

       3.      In response to the Motion, the State strongly opposes modifying

Defendant’s sentence to Level IV Home Confinement or Level III supervision. 7

Because Defendant’s PFBPP sentences stem from Defendant accidently shooting his

father while living at his mother’s house, the State is concerned that Defendant’s

mother’s house would not be suitable for Home Confinement.8 In addition, the State




4
  All probation is concurrent.
5
  D.I. 54.
6
  Id. Defendant has received certificates for his participation in: (1) Employment Skills Program;
(2) HRYCI Employment Skills Class; (3) Workforce Skills Training; (4) American Traffic Safety
Services Association – Certified Flagger; (5) 2Q Brother-2-Brother Men’s Group; (6) Microsoft
Powerpoint - 60 Hours; (7) Project New Start’s Money Management & Money Letters Programs;
(8) HRYCI HeadStart Home Program; (9) Victim Impact/Courage to Change Program; and (10)
The Gateway Foundation Program.
7
  D.I. 58.
8
  Id. Defendant indicates that if the Court sentences him to Level IV Home Confinement, he would
like to serve that Home Confinement at his mother’s house, where his daughter resides.
                                                2
opposes the proposed flow down from Level V to Level III without Defendant

completing additional rehabilitative programs available at Level IV. 9

          4.     Superior Court Criminal Rule 35 governs motions for modification of

sentence. Under Rule 35(b), “[t]he Court may . . . reduce the . . . the term or

conditions of partial confinement or probation, at any time.”10 Defendant’s Motion

is not time-barred because he seeks to modify the Level IV portion of his sentence.

          5.     While the Court commends Defendant for his rehabilitation and

educational efforts while incarcerated and his desire to care for his daughter, the

Court finds that Defendant’s sentence is appropriate for all the reasons stated at the

time of sentencing and in the State’s Response.

          NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s

Motion to Modify Probation Sentence is DENIED.




                                                     Jan R. Jurden
                                               Jan R. Jurden, President Judge


Original to Prothonotary

cc:       David A. Crosby-Avant (SBI # 00579118)
          Albert J. Roop, DAG
          Christina L. Ruggiero, PDO


9
    Id.
10
     Super. Ct. Crim. R. 35(b).
                                           3
