        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                           :
                                            :    ID No’s 1803013371 & 1803013463
                                            :    In and for Kent County
              v.                            :
                                            :
ALAN M. JOSEY,                              :
                                            :
                   Defendants.              :

                                       ORDER


                             Submitted: October 21, 2019
                              Decided: January 7, 2020

        On this 7th day of January, 2020, having considered Defendant Alan Josey’s
motion for modification of sentence, his motion in the alternative to withdraw his
guilty plea, and the State’s opposition, it appears that:
        1.    Mr. Josey committed a series of robberies in Delaware and Maryland
in February and March 2018. Maryland authorities apprehended him and he pled
guilty to some of the Maryland robberies. As a result, a Maryland Circuit Court
sentenced him to ten years of incarceration. Thereafter, pursuant to the Interstate
Agreement on Detainers, Maryland transferred his custody to Delaware in August
2019.
        2.    On September 12, 2019, Mr. Josey pled guilty to one count of Robbery
First Degree for his armed robbery of a McDonald’s in Kent County. Pursuant to
the plea agreement, the State agreed to dismiss unindicted charges related to Mr.
Josey’s robbery of a Kent County Walgreens.           The plea agreement, however,
included Mr. Josey’s agreement to pay restitution to Walgreens. Pursuant to the
agreement, the State and Mr. Josey jointly recommended that he serve a minimum
mandatory sentence of three years incarceration, to be followed by probation.
Before entering his plea, Mr. Josey executed a truth-in-sentencing guilty plea form.
On that form, he acknowledged that a Robbery First Degree charge carried a
minimum mandatory sentence of three years. It also acknowledged that no one had
promised him what his sentence would be. He confirmed the same in his plea
colloquy with the Court.
       3.     The Deputy Attorney General representing the State made sentencing
comments providing her position that the sentence should run consecutively to any
sentence he would serve in Maryland. The Court then imposed the recommended
sentence and intended that it run consecutively to any term of confinement imposed
in Maryland as a result of those separate Maryland robberies.
       4.     Mr. Josey seeks a sentence modification arguing that the parties’ joint
recommendation contemplated that Mr. Josey (1) remain in Delaware and serve his
Delaware sentence first, and (2) that it run concurrently with any sentence imposed
in Maryland. The State argues that the intention was never for Mr. Josey to serve
his Delaware sentence first because that would contradict the terms of the Interstate
Agreement on Detainers that required his return to Maryland to first serve
incarceration in that jurisdiction.
       5.     The Court may reduce a sentence of imprisonment on a motion made
within 90 days after the sentence is imposed. 1 Upon a timely motion, the Superior
Court has broad discretion to decide whether to alter its judgment. 2 The purpose of
the rule is to provide the Court with a reasonable period of time to consider
sentencing alterations, as well as to “to give a sentencing judge a second chance to
consider whether the initial sentence is appropriate.”3


1
  Super. Ct. Crim. R. 35(b).
2
  Hewett v. State, 2014 WL 5020251, at *1 (Del. Oct. 7, 2014).
3
  State v. Remedio, 108 A.3d 326, 331 (Del. Super. 2014).
                                               2
       6.      Until June 25, 2019, 11 Del. C. § 3901(d) required any sentence of
confinement imposed for Robbery First Degree to run consecutively with any other
sentence of incarceration.4 Pursuant to the formerly designated House Bill No. 5,
the 150th General Assembly removed Robbery First Degree from the list of offenses
requiring that it be imposed consecutively to any other sentence. 5 Because Mr. Josey
entered this plea after the effective date of the former House Bill No. 5, the Court
was not required to sentence him consecutively to other terms of confinement.
       7.      As an initial matter, the State incorrectly argues that the Court does not
have the discretion to impose a sentence of confinement concurrently with an out-
of-state sentence. In so arguing, the State relies on the following statutory provision:
       [t]he court shall direct whether the sentence of confinement of any
       criminal defendant by any court of this State shall be made to run
       concurrently or consecutively with any other sentence of confinement
       imposed on such criminal defendant. 6

This provision does not qualify or otherwise limit the Court’s discretion to make a
Delaware sentence run concurrently “with any other sentence of confinement
imposed on such criminal defendant.”7 Contrary to the State’s argument, the plain
language of the statute provides that this discretion applies to any sentence of
confinement, whether in State or out.
       8.      Nevertheless, the Court’s intention was that Mr. Josey serve this
Delaware sentence, for a Delaware armed robbery, consecutively to the Maryland
sentence.    Mr. Josey’s return to Maryland after sentencing was an obligation
imposed by his detainer agreement. The Court accepted defense counsel’s request

4
  See 79 Del. Laws ch. 297, § 1 (2014) (explaining “no sentence of confinement of any criminal
defendant by any court of this State shall be made to run concurrently with any other sentence of
confinement imposed on such criminal defendant for any conviction of . . . Robbery in the first
degree”).
5
  Del. H.B. 5, 150th Gen. Assem., 82 Del. Laws ch. 66, § 1 (2019) (amending 11 Del. C. § 3901(d)).
6
  11 Del. C. § 3901(d).
7
  Id. (emphasis added).
                                                3
that it recommend to the Department of Correction to have Mr. Josey serve the Level
V portion of his sentence at James T. Vaughn, Jr. Correctional Center. If there was
a misunderstanding, as Mr. Josey advocates, then there would have been no need to
include a request that the Department of Correction place him at a particular Level
V facility. Namely, had there been a concurrent sentence, Mr. Josey’s Delaware
sentence would long since be subsumed within the Maryland sentence making the
location of his Level V sentence moot. While the plea agreement is silent about
whether the parties recommended the incarceration to be consecutive or concurrent,
the sentencing comments by the parties supported the appropriateness of a
consecutive sentence in this case. Namely, in the sentencing comments, the State
referenced its understanding that Mr. Josey would serve approximately eight years
incarceration for his Maryland sentence. The State referenced a greater than eleven
year total period of incarceration. 8 Delaware’s three year minimum mandatory
sentence together with an expected eight year Maryland sentence totaled eleven. Mr.
Josey did not protest or challenge that representation at his sentencing, despite
having the opportunity to do so.
      9.     Furthermore, after further consideration, a consecutive sentence
remains appropriate in this case. Mr. Josey’s armed robbery occurred in Delaware.
Justifiably, he should serve a separate and distinct Delaware sentence to account for
this extremely serious crime.
      10.    As a final matter, Mr. Josey alternatively moves to withdraw his guilty
plea if the Court does not modify his sentence. That motion is without merit.
Superior Court Criminal Rule 32(d) provides that after sentencing, “a plea may be


8
  See State v. Josey, C.A. No. 1803013371, at 14:10–15:2 (Del. Super. Sept. 12, 2019)
(TRANSCRIPT) (providing an estimation by the DAG that Mr. Josey would serve approximately
eight years for his Maryland sentence, totaling 11 years when considered with his Delaware
sentence).
                                            4
set aside only by motion under Rule 61.” Accordingly, his motion to withdraw his
plea in the alternative must also be denied.
      WHEREFORE, Defendant Alan Josey’s motion for modification of sentence
and his alternative motion to withdraw his guilty plea are DENIED.


                                                        /s/Jeffrey J Clark
                                                              Judge




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