IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
) ID Nos. 1708002212 and
Vv. ) and 0911009189
)
) Cr. A. Nos. IN17-08-0842, ete.
BRYAN D. ROBERTS, )
Defendant. )

Submitted: May 15, 2020
Decided: June 8, 2020

ORDER DENYING SECOND MOTION
TO REDUCE OR MODIFY SENTENCE

This 8" day of June, 2020, upon consideration of the Defendant Bryan
D. Roberts’ Second Pro Se Motion for Sentence Reduction or Modification
and its supplement (D.I. 66 and 67*), and the record in this matter, it appears
to the Court that:

(1) On September 18, 2017, a New Castle County grand jury
indicted Mr. Roberts for Possession of a Firearm by a Person Prohibited
(PFBPP), Possession of Ammunition by a Person Prohibited, Carrying a

Concealed Deadly Weapon, and Possession of Drug Paraphernalia.!

 

* To avoid confusion, the Court will refer only to the docket entries assigned in Case No.
1708002212.

' Indictment, State v. Bryan D, Roberts, ID No. 1708002212 (Del. Super. Ct. Sept. 18,
2017) (D.I. 2).
(2) After a three-day jury trial conducted in March 2018, Mr.
Roberts was convicted of all charges.? After his counsel successfully argued
for and obtained Mr. Roberts a new trial,> he pleaded guilty to the PFBPP
count. The plea was a consolidated resolution of these new charges and Mr.
Roberts’s then-pending probation violation from earlier robbery and
attempted robbery convictions.* Mr. Roberts pled in exchange for dismissal
of the remaining charges and the State’s favorable sentencing
recommendation (a total cap of seven years unsuspended imprisonment with
other terms).°

(3) The Court sentenced Mr. Roberts several months later, after a
presentence investigation report was prepared. Mr. Roberts was sentenced to:
(a) PFBPP (IN17-08-0842)—15 years at Level V, suspended after five years
for ten years at Level IV (DOC Discretion), suspended after six months for

two years at Level III; (b) VOP-Robbery First Degree

 

2 Verdict Form, State v. Bryan D. Roberts, ID No. 1708002212 (Del. Super. Ct. Mar. 9,
2018) (D.I. 27).

3 DI. 29-38.

4 Plea Agreement and TIS Guilty Plea Form, State v. Bryan D. Roberts, ID Nos.
1708002212 and 0911009189 (Del. Super. Ct. May 7, 2018) (D.I. 41).

> Id.
(VNO09-11-1580-03}—one year at Level V; and (c) VOP-Attempted Robbery
First Degree (VNO9-11-1581-02)six days at Level V.°

(4) The five-year term of imprisonment for PFBPP is a minimum
term of incarceration that must be imposed and cannot be suspended or
reduced.’ As required by then-extant law, Mr. Roberts’s term of confinement
for PFBPP could not be made to run concurrently with either VOP sentence.®
Nor could the VOP sentences run concurrently with each other as one arose
from his prior robbery conviction.” Consequently, Mr. Roberts must serve a

cumulative unsuspended six-year and six-day Level V term before he

 

6 Sentencing Order, State v. Bryan D. Roberts, ID No. 1708002212 (Del. Super. Ct. Aug.
10, 2018) (D.I. 44); VOP Sentencing Order, State v. Bryan D. Roberts, ID No. 0911009189
(Del. Super. Ct. Aug. 10, 2018) (DI. 46).

7 DEL. CODE ANN. tit. 11, § 1448(e)(1)(b) (“[A] prohibited person . . . who knowingly
possesses... or controls a firearm . .. while so prohibited shall receive a minimum sentence
of... [f]ive years at Level V, ifthe person does so within 10 years of the date of conviction
for any violent felony. . .”).

8 DEL. CODE ANN. tit. 11, § 3901(d) (2017) (“[N]o 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 .
. . possession of a firearm by a person prohibited where the criminal defendant was
previously convicted of a Title 11 violent felony. . .”).

° See id. (“[N]Jo 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. . .”).
transitions to community supervision. And that combined sentence’s
effective date is August 4, 2017.!°

(5) Mr. Roberts filed no direct appeal from his conviction, violation
of probation, or their sentences. But he did docket, among other things, a
motion under Superior Court Criminal Rule 35(b) requesting reduction of his
Level V term. He asked then that the Court order his mandatory term of
confinement imposed for PFBPP and his VOP terms be deemed to have run
concurrently. In effect, this would reduce his prison term by one year and six
days. According to Mr. Roberts, this relief was permitted by a then-newly-
enacted statute and was appropriate because of his rehabilitative efforts,
acceptance of responsibility, and familial hardship.'' The Court denied that
motion.!”

(6) Mr. Roberts has now filed another Rule 35(b) motion to reduce

his Level V sentence.'? He again asks the Court to reduce his sentence by one

 

10 Sentencing Order, State v. Bryan D. Roberts, ID No. 1708002212 (Del. Super. Ct. Aug.
10, 2018) (D.I. 44); VOP Sentencing Order, State v. Bryan D. Roberts, ID No. 0911009189
(Del. Super. Ct. Aug. 10, 2018) (D.I. 46).

11 DI. 56 and 57.
12 State v. Roberts, 2019 WL 6487204 (Del. Super. Ct. Nov. 27, 2019).
'3 Def. 2™ Rule 35(b) Mot. (D.I. 67). See Jones v. State, 2003 WL 21210348, at *1 (Del.

May 22, 2003) (“There is no separate procedure, other than that which is provided under
Superior Court Criminal Rule 35, to reduce or modify a sentence.’’).
year and six months.’ This time he suggests the Court should do so by
“suspend[ing the cumulative one-year six-day VOP sentence] to 18 months
Level 3 following the completion of the Level 5 term for PFBPP.”'> As Mr.
Roberts seems to recognize, the earliest he could complete his term of
imprisonment for PFBPP is February 2022—a little less than two years from
now.'© But he argues the Court should grant the reduction now due to
“extraordinary circumstances” brought on by the COVID-19 pandemic. Mr.
Roberts claims that such reduction will allow him to help his mother and
family both with medical circumstances financially. He claims also that “with
underlying circumstances [he is] more likely to contract COVID-19 in prison
... [as] the number of cases in J.T.V.C.C. is on a steady rise.”!”

(7) The Court may consider such a motion “without presentation,

hearing or argument.”!® The Court will decide his motion on the papers filed

and the complete sentencing record in Mr. Roberts’ case.

 

14 Def. Supp. Ltr., at 1 (D.I. 66).

15 Td.

16 See id.

17 Def. 2"4 Rule 35(b) Mot., at 2; Def. Supp. Ltr., at 1.

18 Super. Ct. Crim. R. 35(b).
(8) When considering motions for sentence reduction or
modification, this Court addresses any applicable procedural bars before
turning to the merits.'”

(9) “Rule 35(b) requires that an application to reduce
imprisonment be filed promptly — i.e. within 90 days of the sentence’s
imposition — ‘otherwise, the Court loses jurisdiction’ to act thereon.””? An
exception to this bar exists: to overcome the 90-day time limitation, an inmate
seeking to reduce a sentence of imprisonment on his or her own motion must
demonstrate “extraordinary circumstances.”*' A heavy burden is placed on
the inmate to establish “extraordinary circumstances” in order to uphold the
finality of sentences.”

(10) The term “extraordinary circumstances” is generally defined as

“Ta] highly unusual set of facts that are not commonly associated with a

 

19 State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015).
20 Redden, 111 A.3d at 607 (internal citations omitted).

21 Sample v. State, 2012 WL 193761, at *1 (Del. Jan. 23, 2012) (“Under Rule 35(b), the
Superior Court only has discretion to reduce a sentence upon motion made within 90 days

of the imposition of sentence, unless ‘extraordinary circumstances’ are shown.”) (emphasis
added).

22 State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015) (“In order to uphold the
finality of judgments, a heavy burden is placed on the defendant to prove extraordinary
circumstances when a Rule 35 motion is filed outside of ninety days of the imposition of a
sentence.”).
particular thing or event.” “And for the purposes of Rule 35(b),
‘extraordinary circumstances’ have been found only ‘when an offender faces
some genuinely compelling change in circumstances that makes a
resentencing urgent.’’** In short, Rule 35(b) is a rule limited to
reconsideration and altering of a sentence after the 90-day motion deadline
“only when there is a truly compelling change in that inmate’s individual
circumstances that presents an urgent need for revision of the sentence’s
terms.””°

(11) Mr. Roberts filed this motion more than a year and a half after
he was sentenced.”° But his mere incantation of COVID-19 concerns presents
no “extraordinary circumstances” under Rule 35(b). His generalized

suggestion of his “underlying (but unidentified) health conditions,” his

statement of anxiety,” and his claim of familial hardship are all factors each

 

23° Diaz, 2015 WL 1741768, at *2 (citing BLACK’S LAW DICTIONARY (10th ed. 2014)); id.
(Observing also that, in the Rule 35(b) context, “‘extraordinary circumstances’ are those
which ‘specifically justify the delay;’ are “entirely beyond a petitioner’s control;’ and ‘have
prevented the applicant from seeking the remedy on a timely basis.’”); State v. Remedio,
108 A.3d 326, 332 (Del. Super. Ct. 2014).

24 State v. Thomas, 220 A.3d 257, 262 (Del. Super. Ct. 2019) (quoting Fountain v. State,
139 A.3d 837, 842 n.20 (Del. 2016)).

25 Id.
26 And more than two and a half years after the effective date of his cumulative sentence.

27 Def. Supp. Ltr., at 1 (“This pandemic has effected [sic] mentally . . .”).
and collectively of a sort Delaware courts have rejected as adequate to
shoulder the heavy burden placed on one to establish “extraordinary
circumstances” under Rule 35(b).?8 What’s more, Mr. Roberts’ requested
relief—eliminating incarcerative terms that take don’t take affect until after
he has finished his PFBPP sentence, i.e., another twenty months from now—
belies any suggestion that Mr. Roberts “faces some genuinely compelling
change in circumstances that makes a resentencing urgent.””?

(12) But Mr. Roberts’ failure to meet Rule 35’s “extraordinary
circumstance” criterion is not all that prohibits this Court from considering
his time-barred prayer for sentence reduction.

(13) Also found in Rule 35(b) is a separate and unforgiving bar: “[t]he

[C]ourt will not consider repetitive requests for reduction of sentence.”*° As

our Supreme Court and this Court have consistently held, Rule 35(b) strictly

 

28 E.g., State v. Bednash, 2020 WL 2917305, at *2 (Del. Super. Ct. June 3, 2020) (Finding
inmate’s summary allegations of his medical conditions and vulnerability to COVID-19 do
not establish “extraordinary circumstances” warranting a reduction or modification of his
sentence under Rule 35(b).); Jones v. State, 2003 WL 356788 (Del. Feb. 14, 2003)
(Holding that financial and familial hardships, without more, did not constitute
extraordinary circumstances.); Boyer v. State, 2003 WL 21810824, at *5 (Del. Aug. 4,
2003) (This Court acted within its discretion when it found that, even with other issues
raised, defendant’s familial hardships did not amount to extraordinary circumstances.).

29 Fountain, 139 A.3d at 842 n.20.

39 Super. Ct. Crim. R. 35(b) (emphasis added).
prohibits consideration of repetitive requests for sentence reduction.*’ The
90-day jurisdictional limit may have its “extraordinary circumstances”
exception, but the bar to repetitive motions has none.** No, this bar is
absolute, flatly “prohibits repetitive requests for reduction of sentence,” and
has been understood and applied without fail for decades.*? Mr. Roberts may
have ignored the repetitive-motion bar to consideration of his current Rule
35(b) motion. The Court cannot. And so, the Court must deny Mr. Roberts’
Rule 35(b) motion on this basis alone.*4

NOW, THEREFORE, IT IS ORDERED that Mr. Roberts’ motion
for reduction or modification of sentence is DENIED.

SO ORDERED this.8" day of e, 2020.

 

 

Paul R. Wallace, Judge

 

31 State v. Culp, 152 A.3d 141, 145 (Del. 2016); Redden, 111 A.3d at 608-09.
32 Culp, 152 A.3d at 144; Redden, 111 A.3d 608-09.

33 See Duffy v. State, 1998 WL 985332, at *1 (Del. Nov. 12, 1998) (As court had denied
original, timely Rule 35(b) motion, “Rule 35(b) ceased to be a viable option” for seeking
sentence reduction.); Thomas vy. State, 2002 WL 31681804, at *1 (Del. Nov. 25, 2002);
Morrison v. State, 2004 WL 716773, at *2 (Del. Mar. 24, 2004) (“[M]otion was repetitive,
which also precluded its consideration by the Superior Court.”); Jenkins v. State, 2008 WL
2721536, at *1 (Del. July 14, 2008) (Rule 35(b) “prohibits the filing of repetitive sentence
reduction motions.”).

34 Culp, 152 A.3d at 145; Redden, 111 A.3d 608-09.
Original to Prothonotary
cc: James K. McCloskey, Deputy Attorney General

Timothy J. Weiler, Esquire
Mr. Brian D. Roberts, pro se

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