IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

)

v. ) Cr. ID. No.: 1502008739

)

)

DERRICK CARROLL, )
)

Defendant. )

ORDER

AND NOW TO WIT, this 21st day of February, 2019, upon consideration
of Defendant Derrick Carroll (“Defendant”)’s April 30, 2018 Motion for Sentence
Modiflcation, the Cornmissioner’s January 15, 2019 Report and Recomrnendation
that Defendant’s Motion for Postconviction Relief Should Be Denied and the
Motion to Withdraw as Counsel Should Be Granted, the sentence imposed upon
Defendant, and the record in this case, it appears to the Court that:

l. On October 28, 2015, Defendant Was convicted of Possession of a
Firearm by a Person Prohibited (“PFBPP”) and Possession of Ammunition by a
Person Prohibited (“PABPP”).l The Superior Court revoked bail and ordered a
presentence investigation On April 8, 2016, Defendant Was sentenced to ten years

at Level V, suspended after six years at supervision Level V on the PFBPP charge,

 

l Verdict Form, State v. Carroll, ID No. 1502008739 (Del. Super. Feb. 12, 2018) (D.I. # 20).

and five years at supervision Level V, suspended after one year at supervision Level
lll on the PABPP charge.2 His probation on PABPP Was ordered to run concurrently
to his sentence for PFBPP.

2. C)n October 28, 2015, this Court denied Defendant’s Motion for
Judgment of Acquittal.3 On April 19, 2016, Defendant appealed his conviction
following his sentencing On March 27, 2017, the Delaware Supreme Court
affirmed the judgment of this Court.4

3. This case has a unique procedural posture that should be clarified
Defendant filed this timely Motion for Postconviction Relief and a Motion for
Appointment of Counsel February 12, 2018, Which Were referred to a Superior Court
Commissioner for proposed findings of fact and conclusions of law.5 On March 6,
2018, the Commissioner issued her Report and Recommendation that Defendant’s

Motion for Postconviction Relief Should be Denied and the Motion for Appointment

 

2 Sentence Order, State v. Carroll, ID No. 1502008739 (Del. Super. Apr. 14, 2016) (D.I. # 30).

3 Criminal Trial Activity Sheet, State v. Carroll, ID No. 1502008739 (Del. Super. Oct. 28, 2016)
(D.I. # 20).

4 Carroll v. State, 158 A.3d 885, 2017 WL 1223564, at *3 (Del. Super. Mar. 27, 2017)
(TABLE).

5 Motion for Postconviction Relief, State v. Carroll, ID No. 1502008739 (Del. Super. Feb. 12,
2018) (D.I. # 44); Motion f`or Appointment of Counsel, State v. Carroll, ID No. 1502008739
(Del. Super. Feb. 12, 2018) (D.I. # 45). See 10 Del. C. § 512(b)(1)(b); Super. Ct. Crim. R.
62(a)(5).

of Counsel Should be Denied.6 On March 14, 2018, Defendant filed a Reply to
Commissioner’s Report and Recommendation, clarifying that he Was convicted of a
Class C Felony, not a Class D Felony.7 ln light of this clarification, the
Commissioner vacated the Report and Recommendation and granted Defendant’s
Motion for Appointment of Counsel and appointed counsel (“Postconviction
Counsel”) to represent Defendant for his Postconviction Relief Motion.8 A briefing
schedule Was ordered, Which Was amended at the request of Defendant’s
Postconviction Counsel.9 The amended briefing schedule provided that Defendant
“shall file an amended motion for postconviction relief by November 29, 2018,”
through his Postconviction Counsel.l° An amended motion for postconviction relief

Was not filed. Instead, Postconviction Counsel filed a Motion to Withdraw as

 

6 Commissioner’s Report and Recommendation, State v. Carroll, ID No. 1502008739 (Del.
Super. Mar. 6, 2018) (D.I. # 49).

7 Reply to Commissioner’s Report and Recommendation, State v. Carroll, ID No. 1502008739
(Del. Super. Mar. 14, 2018) (D.I. # 50).

8 Order Granting Motion and Vacating Report and Recommendation, State v. Carroll, lD No.
1502008739 (Del. Super. Apr. 27, 2018) (D.I. # 52); Order, State v. Carroll, ID No. 1502008739
(Del. Super. Apr. 27, 2018) (D.I. # 51).

9 Briefing Schedule, State v. Carroll, ID No. 1502008739 (Del. Super. Aug. 16, 2018) (D.I. #
57); Amended Briefing Schedule, State v. Carroll, ID No. 1502008739 (Del. Super. Oct. 10,

2018)(D.1. # 60).

10 Amended Briefing Schedule, State v. Carroll, ID No. 1502008739 (Del. Super. Oct. 10, 2018)
(D.I. # 60).

Counsel.ll On March 30, 2018, Defendant also filed a Motion for Sentence
Reduction or Modification.12

4. The Commissioner issued her new Report and Recommendation on
January 15, 2019 (“Commissioner’s Report”), advising the Court to deny
Defendant’s Motion for Postconviction Relief and to grant the Motion to Withdraw
as Counsel. Defendant did not file any objections to the Commissioner’s Report.

5. Rule 62(a)(5) permits the Court to refer case-dispositive motions,
including postconviction relief motions, to a Superior Court Commissioner for
“proposed findings of fact and recommendations for the disposition, by a judge, of
any such matter.”13 After the Commissioner issues her report, “any party may serve
and file Written objections” to the report Within ten days.14 A party failing to comply
With this ten-day time limit for appeal may foreclose that party’s ability to object to

the Commissioner’s report.]5 However, the Court may enlarge the time periods

 

11 Motion to Withdraw as Counsel, Szaze v. Carroll, ID NO. 1502008739 (Del. super. Nov. 21,
2019)(D.1.# 61).

12 Motion for Sentence Reduction/Modification, State v. Carroll, ID No. 1502008739 (Del.
Super. Apr. 30, 2018) (D.I. #53) [hereinafter Def.’s Rule 35(b) Mot.]. Defendant’s Rule 35(b)

Motion Was stayed pending the resolution of Defendant’s Postconviction Relief Motion and
Motion for Appointment of Counsel.

13 Rule 62(a)(5).
14 Rule 62(a)(5)(ii). Defendant failed to file any Written objections to the Commissioner’s Report.

15 Rule 62(b).

under Rule 62 “for good cause.”16 Where an appeal is timely, the Court must
conduct a de novo review of that portion of the Commissioner’s report to which the
appealing party objects.17

6. The Court has undergone a careful review of Defendant’s Motion for
Postconviction Relief`, Postconviction Counsel’s Motion to Withdraw as Counsel,
the Commissioner’s Report, and the record. After this review, the Court adopts in
toto the findings of fact and recommendations in the Commissioner’s Report. Thus,
for the reasons stated in the Commissioner’s Report, Defendant’s Postconviction
Relief Motion is DENIED, and Postconviction Counsel’s Motion to Withdraw as
Counsel is GRANTED.

7. The Court now turns to Defendant’s Rule 35(b) Motion for Sentence
Reduction or Modification.18 Defendant requests that his Level V sentence of six
years be reduced to the mandatory sentence, which he claims is five years.19
Defendant acknowledges that in order to file a Rule 35(b) motion after 90 days from

the date the sentence is imposed, he must prove that extraordinary circumstances

 

16 Rule 62(c).
17 Rule 62(a)(5)(iv).
18 This is Defendant’s first Rule 35(b) motion.

19 Def.’s Rule 35(b) Mot. at 3.

exist.20 Defendant raises mitigating circumstances in this Motion, which he argues
he was unable to argue previously due to a pending case in Maryland that was
connected to the same gun involved in this litigation21 Defendant mentions that he
was using drugs at the time of incident, that the firearm at issue in this case was not
his, that he does not like guns, that he understands the danger of firearms, and that
he has support from his family that will help him when he is released22 Lastly, he
accepts responsibility for his actions and appreciates that what he did was wrong.23
8. Under Rule 35(b), the Court “may reduce a sentence of imprisonment
on a motion made within 90 days after the sentence is imposed.”24 The purpose for
this rule “is to give a sentencing judge a second chance to consider whether the initial
sentence is appropriate.”25 Further, the Court “will consider an application made
more than 90 days after the imposition of sentence only in extraordinary

circumstances or pursuant to ll Del. C. § 4217.”26

 

20 Def.’s Rule 35(b) Mot at 2.
”Mmz

”Mmza

”Mma

24 Super. Ct. Crim. R. 35(b).

25 State v. Bradley, 2015 WL 3863243, at *2 (Del. Super. June 22, 2015) (quoting State v.
Remea’io, 108 A.3d 326, 331 (Del. Super. Dec. 31, 2014)).

26 Rule 35(b).

9. The purpose of the heavy burden on the defendant to establish
“extraordinary circumstances” is to “uphold the finality of sentences.”27
“Extraordinary circumstances” are “those which ‘specificallyjustijj) the delay’; ‘are
entirely beyond a petitioner’s control’; and ‘have prevented the applicant from
seeking the remedy on a timely basis.”’28 “Mitigating factors that could have been
presented at sentence, exemplary conduct or successful rehabilitation while
incarcerated does not constitute ‘extraordinary circumstances.”’29
10. The Court does not find the existence of “extraordinary circumstances”
in this case after reviewing the mitigating factors raised by Defendant. As Defendant
does not establish the existence of “extraordinary circumstances” to overcome the
90-day jurisdictional limit, his Rule 35(b) Motion is procedurally barred.30
Therefore, Defendant’s Rule 35(b) Motion for Sentence Reduction or

Modification is DENIED. As discussed above, the Court adopts the

Commissioner’s Report in its entirety. Therefore, Defendant’s Motion for

 

27 Sza¢e v_ Johnson, 2006 wL 3872849, at *3 (Del. super. Dec. 7, 2006) (citation omitted).

28 S¢are v. Redden, 111 A.3d 602, 607 (Del. super. 2015) (quoting Remedio,ios A.3d at 332)
(emphasis in original).

29 State v. Johnson, 2015 WL 3880586, at *2 (Del. Super. June 24, 2015 (citing State v. Liket,
2002 WL 31133101, at *2 (Del. Super. Sept. 25, 2002); Um'tea' Sates v. LaMorte, 940 F.Supp.
572, 578 (S.D.N.Y. 1996); Unil‘ea' Sates v. Arcaro, 1992 WL 73366, at *1 (S.D.N.Y. Apr. l,
1992)).

30 See, e.g., R@dden, 111 A.3d at 610.

OCI
CCI

Postconviction Relief is DENIED and Postconviction Counsel’s Motion to

Withdraw as Counsel is GRANTED.

IT IS SO ORDERED.

Prothonotary

Defendant

Patrick J. Collins, Esq.
Department of Justice

Office of Defense Services
Investigative Services Office

vm€n L. Mediniua
Judge

/..

