IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE

V. I.D. # 1305001585

MARCUS J. JOHNSON,

\/\/\/\./\/\./\./

Defendant.

Submitted: March 6, 2017
Decided: March lO, 2017

ORDER DENYING MARCUS J. JOHNSON’S MOTION
FOR SENTENCE MOD[FICATION AND MOTION T() COMPEL

This 10th day of March, 2017, upon consideration of the Motion for
Sentence Modification (the “Motion for Modification”) and the Motion to Cornpel
filed by Marcus Johnson, the record in this matter, and the applicable legal
authorities, including Rule 35 of the Superior Court Rules of Criminal Procedure
(“Rule 35”) and Special Rule of Procedure 2017-1 (“Special Rule 2017-1”), it
appears to the Court that:

l. On July l7, 2013, Johnson pleaded guilty to two counts of Drug
Possession (Tier 5). The State filed a motion to declare Johnson a habitual
offender as to the first of the two Possession charges. That motion Was granted by
the Court on October 4, 2013. Johnson Was sentenced, effective May 2, 2013, as

follows: (a) as to the first Possession charge, seven years at Level V, and (b) as to

the second Possession charge, ten years at Level V, suspended after two years for
periods of partial incarceration and probation.

2. Johnson previously has filed several motions to modify his sentence,
all of Which have been denied by this Court.l In his present motion, Which he
supplemented on January l9, 2017,2 Johnson alleges his sentence should be
modified because he has been diagnosed With allergies, sinus infections and
blockages, and severe sleep apnea and has been denied care by the Department of
Correction (“DOC”) for documented sinus and allergy issues. Specifically,
Johnson contends that DOC has acknowledged that he should have received
follow-up care after an initial diagnosis of ear and sinus infections in February
2016, but that such care Was not received. Johnson contends his sentence therefore
should be modified With the balance of his Level V sentence suspended “due to
neglect and the continued treatment that is going to be required in properly treating
his sleep apnea.”3 Johnson also seeks appointment of counsel to assist him in
substantiating his claims, along With a hearing before this Court. Johnson points to

this Court’s decision in State v. DeRoche, in Which the Court suspended a portion

 

lsee D.l. 27, 43.
2 D.l. 56
3 D.I. 55 at 5.

of a defendant’s Level V sentence due to severe health problems that Were not
treated properly While the defendant Was incarcerated4

3. Before this Court considers the merits of a motion under Rule 35, it
first must consider Whether the motion satisfies the procedural requirements of that
rule, namely timeliness and non-repetition. The intent of Rule 35(b) historically
has been to provide a reasonable period for the Court to consider altering its
sentencing judgments5 Under the rule, this Court has broad discretion to decide if
it should alter its judgment When a motion for reduction of sentence is filed Within
90 days of sentencing6 “The reason for such a rule is to give a sentencing judge a
second chance to consider Whether the initial sentence is appropriate.”7

4. A Rule 35 motion filed more than 90 days after a sentence is imposed
is untimely unless the movant demonstrates that “extraordinary circumstances”
have prevented him from seeking relief on a timely basis. In order to “uphold the

finality of sentences,” Delaware law places a heavy burden on the moving party to

 

4 2003 WL 22293654 (Del. Super. Aug. 29, 2003).

5 Johnson v. State, 234 A.2d 447, 448 (Del. 1967) (per curiam).

6 Hewett v. State, 2014 WL 5020251, at *l (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.”).

7 State v. Reed, 2014 WL 7148921, at *2 (Del. Super. Dec. l6, 2014) (citing Um`ted States v.
Ellenbogen, 390 F.2d 537, 541-43 (2d Cir. 1968) (explaining the time limitation and purpose of
then-extant sentence reduction provision of Fed. R. Crim. P. 35, the federal analogue to current
Rule 35(b))).

establish extraordinary circumstances8 In State v. Lewis, former Chief Justice
Steele described the “extraordinary circumstances” excusing an untimely Rule
35(b) motion as circumstances that “specifically justify the delay,” are “entirely
beyond a petitioner’s control,” and “have prevented the applicant from seeking the
remedy on a timely basis.”9 The Supreme Court in State v. Diaz adopted former
Chief Justice Steele’s description of extraordinary circumstances10 Mitigating
factors that could have been presented at sentencing, as well as exemplary conduct
or successful rehabilitation while incarcerated, do not constitute “extraordinary
circumstances.”11

5. In DeRoche, this Court held that untreated, severe health problems,
unknown to the defendant at the time of sentencing, constituted “extraordinary
circumstances” justifying consideration of the merits of a Rule 35 motion filed
outside the 90-day time period.12 The defendant in DeRoche suffered from heart

problems and high blood pressure, had to be admitted to the hospital, was at a

documented, substantial risk of further heart complications, and the record showed

 

8 State v. Johnson, 2006 WL 3872849, at *3; see also State v. Diaz, 113 A.3d 1081 (Del. 2015)
(TABLE).

9 797 A.2d 1198, 1203-05 (Del. 2002) (Steele, J., dissenting); see also Diaz, 113 A.3d 1081.
10113 A.3d1081.

11 State v. Liket, 2002 WL 31133101 (Del. Super. Sept. 25, 2002) (finding 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 Um`tea'
States v. LaMorte, 940 F. Supp. 572, 578 (S.D.N.Y. 1996); Uniteal States v. Arcaro, 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”).

12 2003 WL 22293654, at *3 (Del. Super. Aug. 29, 2003).

4

DOC and its treatment providers repeatedly had failed to follow the physicians’
instructions regarding medication and treatment. Under those circumstances, this
Court held that “some reduction in sentence is warranted, but not a reduction that
would terminate his sentence immediately given the seriousness of the offenses.”13

6. More recently, in Valentine v. State, the Delaware Supreme Court
held that a defendant’s summary allegations that DOC failed to treat an eye
infection were not “extraordinary circumstances” meriting consideration of an
otherwise untimely Rule 35 motion.14 In Valentine, the defendant did not offer any

5 similany, in

documentation that he was not receiving adequate medical care.1
Richmona' v. State, the Delaware Supreme Court held that the defendant’s
allegation that he was not receiving adequate treatment for sickle cell anemia did
not constitute an “extraordinary circumstance” justifying consideration of an
untimely and repetitive Rule 35 motion.16 In Richmona’, the defendant provided
documentation of his sickle cell anemia diagnosis and records indicating he sought
other treatment, but the Court noted: “Richmond has not pursued relief under

Section 4217 or shown that the DOC is providing inadequate care. Under these

circumstances, the Superior Court did not err in denying Richmond’s untimely and

 

13 Id. at *5.

14 106 A.3d 1050 (TABLE), 2014 wL 7894374, at * 2 (Del. Dec. 31, 2014).
15 Ia'. at *2.

16 149 A.3d 1020 (TABLE), 2016 wL 6092472, at *2 (Del. oct. 18, 2016).

5

repetitive motion for sentence modification.”17 The Richmond Court distinguished
DeRoche on the basis that the defendant in DeRoche had “served more than half
his sentence, there was no indication that the defendant had filed numerous
motions for sentence modification, and there was a well-documented record of
inadequate medical care.”18

7. Johnson’s Motion for Modification was filed well beyond the 90-day
limit in Rule 35. Although Johnson contends his untreated health issues constitute
extraordinary circumstances, his case is substantially different from the
circumstances in DeRoche. First, although Johnson submitted documentation that
he did not receive timely care for his ear and sinus issues, he seeks modification on
the basis of his sleep apnea diagnosis, for which he submitted no documentation
In addition, unlike DeRoche, Johnson’s file in this case is replete with meritless
motions, including numerous Rule 35 motions. Accordingly, and consistent with
Valentine and Richmonal, Johnson’s Motion for Modification procedurally is
barred. Johnson may avail himself of 11 Del. C. § 4217, which is the proper
mechanism to address requests to modify a sentence based on “serious medical

5)19

illness or infirmity of the offender. There also may be civil remedies for

Johnson’s alleged inadequate care.

 

17 Ia'. at *2 (citations omitted).
18 Id. at n.6.
”nDac§Qw@.

8. Johnson also filed a Motion to Compel on March 6, 2017, asking the
Court to compel Patrick Collins, Esq. to represent Johnson for purposes of a
motion for modification of sentence under 11 Del. C. § 4214(D, as enacted by 80
Del. Laws ch. 321 (2016).20 Mr. Collins’ former partner represented Johnson at
the time of sentencing and Johnson therefore seeks an order of this Court
compelling Mr. Collins to represent Johnson for purposes of a motion for
modification of his sentence imposed under the habitual offender statute.

9. Under Special Rule 2017-1, issued by this Court on February 10,
2017, the “attorney of record at the time of the judgment of sentence the petitioner
seeks to have modified shall represent the petitioner in proceedings under this rule,
but if the attorney of record is unavailable, the Office of Defense Services shall

”21 Johnson’s counsel of

represent the petitioner in proceedings under this rule.
record at the time of sentencing is not available to represent him, because he
presently is employed by the Department of Justice. That does not mean, however,
that Mr. Collins is required to represent Johnson, Special Rule 2017-l expressly
provides for such a circumstance and requires the Office of Defense Services to
represent a defendant under those circumstances No further order of this Court

need issue regarding Johnson’s representation, but a copy of this order will be

forwarded to the Office of Defense Services.

 

20 D.I. 58.
21 Dei. super. Ci. spec. R. 2017-1(b).

NOW, THEREFORE, IT IS ORDERED this 9th day of March, 2017 that

Marcus J. Johnson’s Motion for Sentence Modification and Motion to Compel are

dual %/

AbigailQ\/l. ieGrow, Jl%lge

DENIED.

Original to Prothonotary

cc: Robert J. O’Neill, Jr., Deputy Attorney General
Todd E. Conner, Esquire, Office of Defense Services
Marcus J. Johnson, pro se (SBI No. 00306874)

