     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                          )
                                            )
                                            )
v.                                          )            ID No. 1407015223
                                            )
SHAWN E. WILLIAMS,                          )
                                            )
                         Defendant.         )


                           Submitted: January 21, 2015
                           Decided: February 19, 2015
                                            1



        ORDER DENYING MOTION TO REDUCE SENTENCE

       This 19th day of February, 2015, upon consideration of the

Defendant’s Motion for Sentence Reduction and Modification and the record

in this matter, it appears to the Court that:

       (1)    In August 2014, Defendant Shawn E. Williams pleaded guilty

to four crimes: Drug Dealing in Heroin (as a class D felony), Endangering

the Welfare of a Child, Drug Dealing in Heroin (as a class B felony), and

Resisting Arrest. 2 The offenses arose from two different criminal episodes



2
        DEL. CODE ANN. tit. 16, § 4754(1) (2014) (drug dealing in heroin of no specified
tier quantity); DEL. CODE ANN. tit. 11, § 1102(a)(6) (2014) (endangering the welfare of a
child – committing drug offenses in a dwelling where the child is present); DEL. CODE
but, because Williams waived indictment and entered into one dispositive

plea agreement, they were heard in one proceeding. 3

       (2)    His sentencing occurred several months later, on November 7,

2014, after a pre-sentence investigative report was prepared. Williams was

sentenced to serve: Drug Dealing (N14-07-2079I – a class B felony) –

two years at Level V during which he is to participate in the Key program; 4

Drug Dealing (IN14-06-0879 – a class D felony) – eight years at Level V

suspended for 8 years at Level IV-Crest suspended after six months for 18

months of Level III-Crest Aftercare.5 The sentence has an effective date of

July 19, 2014, and the two years of imprisonment for Drug Dealing-Tier 4

Weight (N14-07-2079I), because it is a class B felony, is a minimum term of

incarceration that must be imposed and cannot be suspended or reduced.6

Williams filed no direct appeal from his convictions or sentences.


ANN. tit. 16, § 4752(1) (2014) (drug dealing in heroin - tier 4 weight); and DEL. CODE
ANN. tit. 11, § 1257 (2014) (resisting arrest).
3
       See Plea Agreement and TIS Guilty Plea Form, State v. Shawn E. Willaims, ID
Nos. 1406002869 & 1407015223 (Del. Super. Ct. Aug. 28, 2014).
4
       “‘Key’ refers to the Key Therapeutic Community, a six to eighteen month drug
treatment program established by the Delaware Department of Correction.” State v.
Lennon, 2003 WL 1342983, at *1 (Del. Mar. 11, 2003).
5
       Crest and “‘Crest After-Care’ refer[] to [] related, though less restrictive,
program[s].” Id.
6
       DEL. CODE ANN. tit. 16, § 4752 (2014); id. at tit. 11, §§ 4205(b)(2) & (d) (2014)
(sentence “[f]or a class B felony [is] not less than 2 years . . . [and any] minimum,

                                          -2-
       (3)    Williams now has filed the present motion under Superior

Court Criminal Rule 35(b) requesting reduction or elimination of the Level

V and IV terms of his sentences for the drug dealing charges. 7 In short,

Williams requests that his Level V term be suspended upon completion of

the Key program and that he go directly to Level III after he has completed

the Key program, eliminating the Level IV treatment component of his

current sentence. This relief is appropriate, he claims, because: (1) once he

completes the Key program he will be rehabilitated; (2) he has familial care

and financial obligations; (3) his remorse; and (4) he has a job waiting for

him upon release.8

       (4)    The     Court    may     consider     Williams’s     motion     “without

presentation, hearing or argument.” 9 The Court will decide his motion on

the papers filed 10 and the complete sentencing record in Williams’s case.


mandatory, mandatory minimum or minimum mandatory sentence [ ] required by
subsection (b) of [§ 4205] . . . shall not be subject to suspension by the court”).
7
       Super. Ct. Crim. R. 35(b) (providing that, under certain conditions, the Court may
reduce a sentence of imprisonment on an inmate’s motion; providing also that the Court
may reduce a term or the conditions of partial confinement or probation, ).
8
       Def. Rule 35(b) Mot. at 2.
9
       Super. Ct. Crim. R. 35(b).
10
       When considering motions for sentence modification, this Court addresses any
applicable procedural bars before turning to the merits. State v. Reed, 2014 WL 7148921,
at *2 (Del. Super. Ct. Dec. 16, 2014). There are no procedural bars to consideration of
Williams’s request under Rule 35(b). See, e.g., State v. Comeger, 2015 WL 74260, at *2

                                          -3-
       (5)    The intent of Superior Court Criminal Rule 35(b) has

historically been to provide a reasonable period for the Court to consider

alteration of its sentencing judgments. 11 Where a motion for reduction of

sentence is filed within 90 days of sentencing, the Court has broad

discretion to decide if it should alter its judgment.12 “The reason for such a

rule is to give a sentencing judge a second chance to consider whether the

initial sentence is appropriate.”13 But, while the Court has wide discretion

to reduce a sentence upon a timely Rule 35 application, the Court has no

authority to reduce or suspend the mandatory portion of any substantive

statutory minimum sentence. 14

       (6)    As noted above, the two years of imprisonment for one count

of drug dealing (N14-07-2079I), because that offense is a class B felony, is


(Del. Super. Ct. Jan. 5, 2015) (“Where a motion for reduction of sentence of
imprisonment is filed within 90 days of sentencing, the Court has broad discretion to
decide if it should alter its judgment.”); see also Teat v. State, 2011 WL 4839042, at *1
(Del. Oct. 12, 2011) (finding this Court erred in holding that motion for modification of
Level IV time was subject to ninety-day period).
11
       Johnson v. State, 234 A.2d 447, 448 (Del. 1967) (per curiam).
12
       Hewett v. State, 2014 WL 5020251, at *1 (Del. Oct. 7, 2014) (“When, as here, 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.”).
13
       State v. Reed, 2014 WL 7148921, at *2 (Del. Super. Ct. Dec. 16, 2014).
14
      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).



                                          -4-
a minimum term of incarceration that must be imposed and cannot be

suspended or reduced. 15 Williams’s requested modification of the Court’s

sentencing order would not require him to serve two years at Level V. It

would only require him to complete the Key program (which could take far

less than two years) before he would be released from Level V. That would

clearly violate the two-year minimum at Level V set out in 11 Del. C.

§ 4205(b).16 In turn, the Court must deny Williams’s motion to reduce his

Level V term for the class B drug dealing count (N14-07-2079I).

      (7)    Williams has also requested that the Court eliminate the Level

IV-Crest portion of his sentence imposed for the other drug dealing offense

(IN14-06-0879). That Level IV term, i.e., a period in a highly structured

community-based supervision setting with substance abuse treatment

complimentary to that engaged in the Key program, is a component of his

sentence that is integral to the Court’s overall “sentencing scheme” or

“plan.” 17 Here the Court found that a term of Level IV supervision in such a

setting would best address Williams’s treatment needs and facilitate his

transition to lower levels of supervision and to society. The Court has fully


15
      See n.6, supra.
16
      See State v. Lennon, 2003 WL 1342983, at *1 (Del. Mar. 11, 2003).
17
      Defoe v. State, 750 A.2d 1200, 1202 (Del. 2000).



                                        -5-
reviewed Williams’s application, the record of the two subject cases,

Williams’s supervision history, and all sentencing information available.

The Court finds the Level IV-Crest term of the sentence remains appropriate

for the reasons stated at the time of sentencing. In turn, the Court will

exercise its discretion 18 under Rule 35(b) and deny Williams’s request to

reduce or modify the Level IV term of his sentence.

       NOW, THEREFORE, IT IS ORDERED that Shawn E. Williams’s

motion for reduction or modification of sentence is DENIED.

                             SO ORDERED this 19th day of February, 2015.


                             /s/ Paul R. Wallace
                             PAUL R. WALLACE, JUDGE

Original to Prothonotary

cc: Barzilai Axelrod, Deputy Attorney General
    Kevin P. O’Neill, Esquire
    Mr. Shawn E. Williams, pro se
    Investigative Services Office




18
        Rondon v. State, 2008 WL 187964, at *1 (Del. Jan. 15, 2008) (“The merit of a
sentence modification under Rule 35(b) is directed to the sound discretion of the Superior
Court.”); Kiser v. State, 2010 WL 5141242, at *1 (Del. Dec. 10, 2010) (same for motion
that seeks reduction or modification of partial confinement).

                                           -6-
