IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
V. ) I.D. No. 1009000864
)
)
MARCEL L. SWANSON, )
)
Defendant. )
ORDER

Submitted: February 5, 2020!
Decided: June 18, 2020

AND NOW TO WIT, this 18" day of June, 2020, upon consideration of
Marcel L. Swanson’s (“Defendant”) Motion for Modification of Sentence under
Superior Court Criminal Rule 35, the sentence imposed upon the Defendant, and the

record in this case, it appears to the Court that:

 

' The United States of America and the State of Delaware declared states of emergency due to
COVID-19. As a result, per Administrative Directives of the Supreme Court of the State of
Delaware and the Delaware Superior Court, and the national and local states of emergency,
“Te]xcept as set forth in 10 Del. C. § 2007(c), deadlines in court rules or state or local statutes and
ordinances applicable to the judiciary that expire between March 23, 2020 and June 13, 2020 are
extended through July 1, 2020.” Administrative Order No. 6 Extension of Judicial Emergency
(Del. May. 14, 2020); see also Standing Order No. 6 Concerning COVID-19 Precautionary
Measures (Del. Super. Ct. Apr. 15, 2020).
1. On May 4, 2011, Defendant pled guilty to Trafficking Heroin’ and was
sentenced to a sum of five years at Level V followed by eighteen months at Level
II.3 On October 28, 2011, Defendant filed a Motion for Modification.* Defendant’s
motion was granted, ° and his sentence was modified to a sum of three years at Level
V, followed by three months at Level IV Home Confinement, and fifteen months at
Level III.®

2. Since his 2011 sentence, Defendant has been found to be in violation
of probation four times.’ Most recently on December 4, 2019, after finding

Defendant to be in violation of probation, this Court resentenced Defendant to a sum

 

2 See Case Review Plea Hearing: Pled Guilty/Presentence Investigation Ordered, State of
Delaware v. Marcel L. Swanson, Crim. ID No. 1009000864, D.I. 11 (Del. Super. Ct. May 4, 2011).

3 See Sentencing Calendar: Defendant Sentenced, State of Delaware v. Marcel L. Swanson, Crim.
ID No. 1009000864, D.I. 11 (Del. Super. Ct. July 22, 2011). Defendant was sentenced to ten years
at Level V, suspended after five years at Level V, for eighteen months at Level III. See Sentenced
Order: ASOP/Sentence Order Signed and Filed 7/27/11, State of Delaware v. Marcel L. Swanson,
Crim. ID No. 1009000864, D.I. 13 (Del. Super. Ct. July 22, 2011).

4 Defendant’s Motion for Modification, State of Delaware v. Marcel L. Swanson, Crim. ID No.

1009000864, D.I. 14 (Del. Super. Ct. Oct. 28, 2011).

> Order Granting Defendant’s Motion for Modification, State of Delaware v. Marcel L. Swanson,
Crim. ID No. 1009000864, D.I. 14 (Del. Super. Ct. Dec. 6, 2011).

6 Defendant was sentenced to ten years at Level V, suspended after three years at Level V, for
eighteen months at Level IV Home Confinement, suspended after three months at Level IV Home

Confinement, for fifteen months at Level III. Sentence: ASOP/Modified Sentence Order Signed
and Filed 12/7/11, State of Delaware v. Marcel L. Swanson, Crim. ID No. 1009000864, D.I. 15

(Del. Super. Ct. Dec. 6, 2011). The first three years were sentenced as a mandatory. Id.

’ Violation of Probation Hearing: Defendant Found in Violation. Sentenced, State of Delaware v.

Marcel L. Swanson, Crim. ID No. 1009000864, D.I. 27 (Del. Super. Ct. Nov. 25, 2011); Violation
of Probation Hearing: Defendant Found in Violation. Sentenced, State of Delaware v. Marcel L.

Swanson, Crim. ID No. 1009000864, D.I. 34 (Del. Super. Ct. Mar. 31, 2016); Violation of
Probation Hearing: Defendant Found in Violation. Sentenced, State of Delaware v. Marcel L.

Swanson, Crim. ID No. 1009000864, D.I. 41 (Del. Super. Ct. Jan. 31, 2018); Violation of
Probation Hearing: Defendant Found in Violation. Sentenced, State of Delaware v. Marcel L.

Swanson, Crim. ID No. 1009000864, D.I. 47 (Del. Super. Ct. Dec. 4, 2019).

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of twenty days at Level V, followed by six months at Level [V Home Confinement,
with no probation to follow.’ On May 28, 2020, another Violation of Probation
report was filed with this Court.?

3. On February 5, 2020, Defendant filed this motion under Delaware
Superior Court Criminal Rule 35(b).'° In his motion, Defendant asks that this Court
reduce his Level V sentence to one year and his Level IV sentence to three months,
with no probation to follow.

4. In support of the Motion, Defendant states the following grounds for
relief: (1) Defendant feels unsafe in “home confinement”; (2) Defendant has spent
“10+ years on probation” and has “never been off probation”; (3) Defendant is
currently working two jobs, one of which “requires out of state work”; and (4)
Defendant has two children he cannot live with “because of the sentence.”!!

5. Under Superior Court Rule of Criminal Procedure 35(b), the Court may

reduce a sentence of imprisonment on a motion made within ninety days after the

 

8 Defendant was sentenced to six years at Level V, suspended after twenty days at Level V, for six
years and ten days at Level ['V Home Confinement, suspended after six months at Level IV Home
Confinement with no probation to follow. Sentence: ASOP Order Signed and Filed on 12/6/19,
State of Delaware v. Marcel L. Swanson, Crim. ID No. 1009000864, D.I. 49 (Del. Super. Ct. Dec.
6, 2019).

® Violation of Probation Report Filed: Capias Issued, State of Delaware v. Marcel L. Swanson,
Crim. ID No. 1009000864, D.I. 54 (Del. Super. Ct. May 28, 2020).

10 DEL. SUPER. CT. CRIM. R. 35(b).

'l Defendant’s Motion for Modification of Sentence, State of Delaware v. Marcel L. Swanson,
Crim. ID No. 1009000864, D.I. 50 (Del. Super. Ct. Feb. 5, 2020).

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sentence is imposed.!? “Rule 35(b) allows for a reduction of sentence without regard
to the existence of a legal defect.”!? Thus, relief under Rule 35(b) is within the sound
discretion of the Sentencing Court.'4 Accordingly, a timely and non-repetitive Rule
35(b) motion is “essentially a ‘plea for leniency.’”'? Defendant’s motion is timely.
6. Given Defendant’s history of violating probation and his current
pending violation of probation, the Court finds that Defendant “has demonstrated a
lack of amenability to community supervision[.]”!© As such, Defendant’s Level V
sentence remains appropriate for all the reasons stated at the time of sentencing.
Furthermore, where Defendant has completed his Level IV sentence, the remaining
portion of his request is moot. For these reasons, Defendant’s Motion is DENIED,
in part and further DISMISSED, as moot.

IT IS SO ORDERED.

 
 
 

 

Vivian L. Medinilla
Judge

 

!2 De. SUPER. CT. CRIM. R. 35(b).

3 State v. Lewis, 797 A.2d 1198, 1201 (Del. 2002).
4 Td.

15 Tq. at 1202 (quoting United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973)).

16 State v. Colburn, No. ID 1411002179, 2015 WL 1881181, at *3 (Del. Super. Ct. Apr. 24, 2015)
(denying defendant’s motion to reduce his term of imprisonment where defendant “demonstrated
a lack of amenability to community supervision as evidenced by his numerous previous violations
of probation[.]”). See Whitehair v. State, 892 A.2d 1085 (Del. 2006) (affirming denial of motion
for modification where defendant had demonstrated a lack of amenability to probation); see also
State v. Cruz, No. 1402002496, 2015 WL 34299339, at *3 (Del. Super. Ct. May 26, 2015) (denying
defendant’s motion for reduction of imprisonment where defendant “demonstrated lack of
amenability to community supervision as evidenced by his numerous previous violations of
probation... .”).
oc:
cc:

Prothonotary
Department of Justice
Investigative Services
Defendant
