       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                          )
                                            )
      v.                                    )          ID No. 1904019832
                                            )
KENDELL R. CRENSHAW,                        )
                                            )
      Defendant.                            )

                           Date Submitted: April 16, 2020
                           Date Decided: April 29, 2020

                                        ORDER

      Upon consideration of Defendant’s Motion for Modification of Sentence 1

(“Motion”), Superior Court Criminal Rule 35, statutory and decisional law, and the

record in this case, IT APPEARS THAT:

      1.     On October 15, 2019, Defendant pled guilty to Tampering With

Physical Evidence.2 On November 7, 2019, the State filed a Motion to Declare

Defendant an Habitual Offender. 3 On November 8, 2019, Defendant was sentenced

as an habitual offender to 5 years at Level V, suspended after 9 months for

supervision Level III. 4




1
  D.I. 32.
2
  D.I. 25
3
  D.I. 28. The Court granted this Motion at Defendant’s Sentencing pursuant to 11 Del. C. §
4214(a). See D.I. 30.
4
  D.I. 28, 31 (ASOP Sentence Order filed and signed on 11/26/19).
       2.      In the instant Motion, Defendant asks the Court to suspend the

remaining Level V time of his sentence so that he may begin the Level III portion of

his sentence.5 In support of the Motion, Defendant cites (1) his “job security”

pending upon release, (2) his need to support his family, and (3) his potential

exposure to COVID-19.6

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

sentence. “Under Rule 35(b), a motion for sentence modification must be filed

within ninety days of sentencing, absent a showing of ‘extraordinary

circumstances.’”7

       4.      Defendant filed this Motion more than 90 days after imposition of the

sentence, and therefore the Motion is time-barred. The Court will consider an

application made more than 90 days after the imposition of sentence only in

“extraordinary circumstances,” or pursuant to 11 Del. C. § 4217. Delaware law

places a heavy burden on the moving party to establish extraordinary circumstances

in order to “uphold the finality of sentences.”8 “Extraordinary circumstances”

excusing an untimely Rule 35(b) motion are circumstances that “specifically justify


5
  D.I. 32.
6
  Id.
7
  Croll v. State, 2020 WL 1909193, at *1 (Del. Apr. 17, 2020) (TABLE) (affirming the Superior
Court’s denial of a motion for modification of sentence where the motion was repetitive and filed
beyond the 90-day limit); see Hewett v. State, 2014 WL 5020251, at *1 (Del. Oct. 7, 2014) (“When
a motion for reduction of sentence is filed within ninety days of sentencing, the Superior Court has
broad discretion to decide whether to alter its judgment.”).
8
  State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015).
                                                 2
the delay, are entirely beyond a petitioner’s control, and have prevented the applicant

from seeking the remedy on a timely basis.”9 Mitigating factors that could have been

presented at sentence, exemplary conduct or successful rehabilitation while

incarcerated does not constitute “extraordinary circumstances.” 10

       5.      The Court does not find the existence of any extraordinary

circumstances in connection with Defendant’s Motion. The sentence is appropriate

for all the reasons stated at the time of sentencing. 11 No additional information has

been provided to the Court that would warrant a reduction or modification of this

sentence.




9
  State v. Culp, 152 A.3d 141, 145 (Del. 2016) (internal quotations omitted) (quoting Diaz, 2015
WL 1741768, at *2).
10
   Culp, 152 A.3d at 145–46; State v. Liket, 2002 WL 31133101, at *2 (Del. Super. Sept. 25, 2002)
(explaining that exemplary conduct or successful rehabilitation during incarceration does not
qualify as “extraordinary circumstances” and relief for such achievements is more properly
addressed to the parole board). See also United States v. LaMorte, 940 F. Supp. 572, 578
(S.D.N.Y. 1996); United States v. Arcaro, No. 89 Cr. 001, 1992 WL 73366, at *1 (S.D.N.Y. Apr.
1, 1992) (stating that “[w]hile defendant’s educational endeavors in prison and his diligent
performance of prison job assignments are laudable accomplishments, they do not justify a
reduction in sentence.”).
11
   See D.I. 28. This sentence takes into account Defendant is a habitual offender as defined under
11 Del. C. § 4214(a).
                                                3
      NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s

Motion for Modification of Sentence is DENIED.

                                                 Jan R. Jurden
                                         Jan R. Jurden, President Judge


Original to Prothonotary

cc:   Kendell R. Crenshaw (SBI# 00343186)
      Mark A. Denney, DAG




                                     4
