IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,

ID. Nos. 1707015283 and 1712012199

Cr. A. Nos. IN17-08-0408, etc.
DAMION THOMAS,

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Defendant. )

Submitted: September 16, 2019
Decided: October 31, 2019

MEMORANDUM OPINION AND ORDER

Upon Defendant Damion Thomas's Motion for Sentence Modification,
DENIED.

Jordan A. Braunsberg, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, for the State of Delaware.

Damion Thomas, pro se.

WALLACE, J
Before the Court is Defendant Damion Thomas’s motion for sentence
reduction or modification. Thomas, who is serving mandatory terms of incarceration
for attempted first degree robbery and possession of a firearm during the commission
of a felony (PFDCF), asks the Court to alter his sentence so that he will serve those
terms concurrently instead of consecutively.! For the reasons stated below,
Thomas’s application is DENIED.

I. FACTUAL? AND PROCEDURAL BACKGROUND

In May 2017, a young man finished his shift and left his job at a New Castle
hoagie shop. When he was just a short distance from work, that young man was
approached by Thomas who trained a handgun on him and ordered, “give me all
your s—t!” When the victim didn’t respond immediately to that demand, Thomas
hit him in the head with the butt of the gun. The victim fell to the ground. While he
was down, Thomas rifled through the victim’s pockets and Thomas’s compatriot
stuck the victim again with the butt of a handgun—this time, in the face. Both
Thomas and his partner fled when a samaritan interceded. But they were later

identified when police traced a cell phone they had left behind.

 

Def.’s Mot. to Modify Sent., at 2-3 (D.I. 22; D.I. 15).

z The factual background of Thomas’s crimes is derived from the collected presentence

materials and the parties’ filings related to this motion. (D.I. 11, 22, and 24; D.I. 11, 15, and 17).

=e
On a mid-July afternoon in 2017, another young man pulled into the parking
lot of a New Castle apartment complex to complete a pre-arranged deal to buy
marijuana and opioids from Thomas. Once this young man parked, Thomas hopped
in the car’s rear driver’s seat behind him; Thomas’s cohort got into the front
passenger seat. They demanded the young man hand over his cash. He refused. So
Thomas pepper-sprayed him while Thomas’s accomplice clubbed the victim with
what was believed to be a handgun. The victim reacted by putting the car in gear
and driving off erratically. Thomas and his partner bailed out and fled.

These two attacks yielded two separate indictments that included: one count
each of Robbery First Degree, Assault First Degree, Possession of a Deadly Weapon
by a Person Prohibited, and Possession of a Firearm by a Person Prohibited; and,
two counts each of Attempted Robbery First Degree, Assault Second Degree,
Conspiracy Second Degree, Possession of a Deadly Weapon During the
Commission of a Felony, and PFDCF.? These charges were resolved by two

separate agreements through which Thomas pleaded guilty to one count each of

 

3 Indictment, State v. Damion Thomas, ID No. 1707015283 (Del. Super. Ct. Oct. 2, 2017)
(D.1. 4); Indictment, State v. Damion Thomas, ID No. 1712012199 (Del. Super. Ct. Jan. 2, 2018)
(D.I. 1).

mL
Robbery Second Degree (as a lesser offense), PFDCF, Attempted Robbery First
Degree, Assault Second Degree, and Conspiracy Second Degree.*

Thomas’s sentencing for both matters occurred in September 2018, a few
months after his second plea was entered and a combined comprehensive pre-
sentence investigative report was prepared. Thomas was sentenced to a total period
of forty-three years of incarceration, to be suspended for community supervision
after serving six years in prison.” Those six years of imprisonment are the sum of
two separate three-year minimum mandatory terms of incarceration imposed for the
attempted first degree robbery count and for the PFDCF count.® Each of those terms
was statutorily required and could not be suspended in any part.’ And under the law
extant at the time of Thomas’s crimes, guilty pleas, and sentencing, those two terms

could not be made to run concurrently.®

 

4 Plea Agreement and TIS Guilty Plea Form, State v. Damion Thomas, ID No. 1707015283
(Del. Super. Ct. Feb. 12, 2018) (D.I. 11); Plea Agreement and TIS Guilty Plea Form, State v.
Damion Thomas, ID No. 1712012199 (Del. Super. Ct. Jan. 2, 2018) (D.I. 11).

° Sentencing Order, State v. Damion Thomas, ID Nos. 1707015283 and 1712012199 (Del.
Super. Ct. Sept. 7, 2018) (D.I. 20; D.I. 13).

7 Id. at 1-2, 4.

7 DEL. CODE ANN. tit. 11, § 832(b) & (c) (2016) (One convicted of attempted robbery first
degree must receive a minimum sentence of at least three years of incarceration.); id. at tit. 11,
§ 1447A(b) (One convicted of PFDCF must receive a minimum sentence of at least three years of
incarceration.); id. at tit. 11, § 4204(d) (A court is prohibited from substituting probation or other
suspension for any portion of a prison sentence that is, by statute, “a mandatory sentence, a
minimum sentence, a minimum mandatory sentence or a mandatory minimum sentence.”).

8 See DEL. CODE ANN. tit. 11, § 3901(d) (2016).
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Thomas filed no direct appeal from his conviction or sentence. Instead, some
ten months after his sentencing, he filed the present motion requesting sentence
reduction—that is, that his prison term now be halved.’

II. NEITHER THIS COURT’S CRIMINAL RULE 35(b) NOR “HOUSE BILL 5”
PERMIT THE COURT TO MODIFY THOMAS’S SENTENCE TO ALLOW
HIS TERMS OF IMPRISONMENT TO RUN CONCURRENTLY.

When addressing a sentence modification request, the Court must determine
whether the procedural mechanism the inmate invokes is available in his
circumstance.'° Thomas asks that the Court modify or reduce his sentence by
ordering that his two mandatory unsuspended consecutive three-year terms of
imprisonment be allowed to served concurrently.

Like scores of other inmates seeking such diminution of their pre-2019-
imposed sentences over the last few months, Thomas incants “House Bill 5” in his

petition. “House Bill 5” refers to the recent initiating legislation of the 150" General

Assembly that further expanded a Delaware sentencing judge’s authority to impose

 

° Def.’s Mot. to Modify Sent. (D.I. 50).

10 State v. Tollis, 126 A.3d 1117, 1119 (Del. Super. Ct. 2016). See, e.g., State v. Culp, 152
A.3d 141 (Del. 2016) (Delaware Supreme Court examines the several sources of authority trial
court might have—but that were then inapplicable or unavailable—when trial court reduced
sentence); see also State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015) (When considering
requests for sentence modification, “this Court addresses any applicable procedural bars before
turning to the merits.”).

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concurrent, rather than consecutive terms of confinement.'! But just like those many
other inmates, Thomas identifies no court rule, statute, or other procedural provision
that would allow the Court to now revisit his sentence. For good reason—there is
none.

A. Superior Court Criminal Rule 35(b) is not available to incite review
based on post-sentencing statutory changes.

Thomas does not specifically cite this Court’s Criminal Rule 35(b) in his
motion. Yet throughout his papers, he does specifically ask the Court to “modify or
reduce” his sentence of imprisonment.!* And, as a general matter, “[t]here is no
separate procedure, other than that which is provided under Superior Court Criminal
Rule 35, to reduce or modify a sentence.” But Rule 35(b) is not now, nor ever has
been, an instrument for re-examination of previously imposed sentences in light of
subsequent statutory changes.

The purpose of Superior Court Criminal Rule 35(b) is to provide a reasonable
period for the Court to consider alteration of its sentencing judgment.'* “The reason

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

 

uN See Del. H.B. 5 §1, 150th Gen. Assem. 82 DEL. LAWS ch. 66, § 1 (2019) (amending DEL.
Cope ANN. tit. 11, § 3901(d)).

7 Def.’s Mot. to Modify Sent., at 2-3.

3 Jones v. State, 2003 WL 21210348, at *1 (Del. May 22, 2003).

ie Redden, 111 A.3d at 606.
initial sentence is appropriate.”'> And “[a] request for leniency and reexamination
of the sentencing factors [extant when the original sentence was imposed are]
precisely the stuff of which a proper and timely Rule 35(b) motion is made.”!®

An untimely Rule 35(b) application, on the other hand, is permitted only
when an inmate demonstrates “extraordinary circumstances” for consideration. '’
The term “extraordinary circumstances” is generally defined as “[a] highly unusual

set of facts that are not commonly associated with a particular thing or event.”!® And

for the purposes of Rule 35(b), “extraordinary circumstances” have been found only

 

7 State v. Reed, 2014 WL 7148921, at *2 (Del. Super. Ct. Dec. 16, 2014) (citing United
States v. Ellenbogen, 390 F.2d 537, 541, 543 (2d Cir. 1968) (Explaining time limitation and
purpose of then-extant sentence reduction provision of Federal Criminal Rule 35, the federal
analogue to current Superior Court Criminal Rule 35(b).)); United States v. Maynard, 485 F.2d
247, 248 (9th Cir. 1973) (Rule 35 allows sentencing court “to decide if, on further reflection, the
original sentence now seems unduly harsh” such request “is essentially a ‘plea for leniency.’”)
(citations omitted). See also State v. Tinsley, 928 P.2d 1220, 1223 (Alaska Ct. App. 1996)
(Explaining that under Alaska’s like sentence-review rule, court’s “authority can be exercised even
when there is no reason to reduce the sentence other than the judge’s decision to reconsider and
show mercy.”).

16 State v. Remedio, 108 A.3d 326, 331-32 (Del. Super. Ct. 2014) (emphasis in original).

M7 State v. Lewis, 797 A.2d 1198 (Del. 2002); 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.”).

18 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.’”); Remedio, 108 A.3d at 332.

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“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 either upon: (1) immediate reexamination of factors individual to the
moving inmate and his or her particular case; or (2) later consideration 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.” It is not some
contrivance allowing review of any existing sentencing judgment because of any
favorable change in statutory sentencing law occurring after an inmate’s sentence

was imposed and based on some systemic shifting of principles or policies not

specific to the inmate seeking relief.?! That type of sentence review—if and when

 

= Fountain v. State, 139 A.3d 837, 842 n.20 (Del. 2016).

a Remedio, 108 A.3d at 331-32; Fountain, 139 A.3d at 842 n.20.

2 Lewis, 797 A.2d at 1204 (Commenting on limited nature of Rule 35 and noting that it is
obviously not meant to “leave open any sentence for reconsideration indefinitely.”); Tollis, 126

A.3d at 1120 (Observing Rule 35(b) is one “permitting a certain restrained level of discretion” for
review after the initial period permitted by the rule.).

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available—is governed by statutes and rules carefully tailored to such purpose.”
Rule 35(b) is certainly “no vehicle” to engage when seeking such sentence relief.”*
B. “House Bill 5’—the most recent amendment of § 3901(d) giving
Delaware judges greater discretion to impose concurrent terms of
imprisonment for certain crimes—does not apply retroactively to

sentences imposed before June 25, 2019, the effective date of the
amendment.

Section 3901 of the Delaware Criminal Code provides for the fixing of terms
of imprisonment. For almost forty years, § 3901(d) read: “No 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.” *4 The first lifting of this complete ban on concurrent terms of
incarceration came on July 9, 2014, when the General Assembly amended § 3901(d)
to provide:

The court shall direct whether the sentence of confinement
of any criminal defendant by any court of this State shall

be made to run concurrently or consecutively with any
other sentence of confinement imposed on such criminal

 

7 E.g., Del. Super. Ct. Spec. R. 2017-1 (Governing requests for modification of sentence

filed by inmates sentenced under pre-2016 version of the Habitual Criminal Act; such rule
expressly required by DEL. CODE ANN. tit. 11, § 4214(f) (2016).); and Del. Super. Ct. Crim. R.
35A (Governing requests for modification of sentence for an offense committed by a juvenile
seeking exercise of the court's retained jurisdiction to modify that sentence granted by DEL. CODE
ANN. tit. 11, § 4204 (2013)).

@ Fountain, 139 A.3d at 842; id. at 842 n.20.

24 DEL. CODE ANN. tit. 11, § 3901(d) (1977) (as amended by enactment of 61 DEL. LAws
ch. 158 (1977)).

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defendant. Notwithstanding the foregoing, no 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 [certain enumerated]
crimes.”*°
Among those certain enumerated crimes were first degree robbery and PFDCF.”°
Thomas was sentenced under that version of § 3901(d) in September 2018.
Thereafter, on June 25, 2019, the General Assembly further expanded
Delaware sentencing judges’ discretion to order concurrent terms of incarceration.*’
It did so by striking a handful of crimes from the 2014 Amended Sentencing Act’s
list of those for which concurrent sentencing is prohibited.?* Robbery First Degree
(and therefore any attempted first degree robbery) was one of the crimes struck from
that list.??
Thomas—like so many inmates did five years ago upon passage of the 2014

Amended Sentencing Act—asks the Court to revisit his sentence and apply the

changes made by 2019 Amended Sentencing Act and reduce his incarcerative term.

 

2s 79 DEL. LAWS ch. 297 (2014) (amending DEL. CODE ANN. tit. 11, § 3901(d)) (hereinafter
“2014 Amended Sentencing Act’).

26 Id.

a 82 DEL. Laws ch. 66, § 1 (2019) (further amending DEL. CODE ANN. tit. 11, § 3901(d))
(hereinafter “2019 Amended Sentencing Act”).

28 Id.

29 Id.

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But just as this Court and our Supreme Court consistently held when examining
those earlier changes to § 3901(d), °° these 2019 amendments cannot be applied
retroactively.

The Delaware Supreme Court’s decision in Fountain v. State*' is both
instructive and controlling here. The Court first thoroughly examined and explained
Delaware’s general rule of prospectivity (and its possible exceptions).** Then, more
importantly here, the Court went on to point out that any retroactive application of a
sentencing change to those already serving a sentence would “have a large effect on
segments of the public, law enforcement and defense resources, and the judiciary
itself.3> And, as a consequence, before retroactively applying any such statutory
sentencing change, a Court must be sure that the enacting legislation “provide{s] for
retroactivity explicitly and...include[s] special procedures to address its

retrospective application.”34

 

30 State v. Priest, 2014 WL 5003419 (Del. Super. Ct. Oct. 6, 2014) (then-recently amended
§ 3901(d) provisions could not be applied retroactively); State v. Perkins, 2014 WL 4179882 (Del.
Super. Ct. Aug. 21, 2014) (same); State v. Coverdale, 2014 WL 4243631 (Del. Super. Ct. Aug. 13,
2014) (same); State v. Jennings, 2014 WL 3943089 (Del. Super. Ct. Aug. 11, 2014) (same); State
v. Love, 2015 WL 1058972 (Del. Super. Ct. Mar. 6, 2015); Fountain, 139 A.3d at 842-43 ([T]he

[2014] Amended Sentencing Act applies only prospectively”; “the General Assembly would have
spoken specifically if it intended the Amended Sentencing Act to operate retroactively.”).

a 139 A.3d 837 (Del. 2016).
ae Id. at 841-42.
33 Id. at 843.

34 Id
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The General Assembly’s non-retroactive intent is even clearer with the 2019
Amended Sentencing Act. For the General Assembly is presumed to have known—
when it further amended § 3901(d) to allow greater discretion to concurrently
sentence—of these judicial decisions on the retroactivity of such amendments.** In
the face of that clear, existing, and recent case law, the General Assembly then
would have—if it wanted review and modifications for sentenced inmates—
provided for new § 3901(d)’s retroactivity explicitly and included special procedures
to address its retrospective application. The General Assembly did not. And this
Court cannot in its stead.*°

C. Even if the current version of § 3901(d) were available to Thomas,
his sentence could not be reduced.

Even if they could be applied retroactively to Thomas’s sentence, the recent
changes to § 3901(d) are of no assistance to him. It is the cumulation of Thomas’s
separate three-year attempted first degree robbery and PFDCF terms that require

him to serve at least six years.

 

7 State v. Cooper, 575 A.2d 1074, 1076-77 (Del. 1990); Giuricich v. Emtrol Corp., 449 A.2d
232, 239 n. 13 (Del. 1982); Husband v. Wife, 367 A.2d 636, 637 (Del. 1976).

36 Evans v. State, 212 A.3d 308, 314 (Del. Super. Ct. 2019) (Court is not free to interpret or
add to statutes to obtain what a party claims “would be a more ‘workable’ result or sound public

policy.”).
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If sentenced under current § 3901(d), the Court would have the discretion to
order Thomas’s attempted robbery term be served concurrently.*’ But still, as a
matter of law, Thomas’s sentence for PFDCF cannot be ordered to run concurrently
with any other sentence of confinement because Thomas “used” or “displayed” a
handgun during his robbery of the hoagie shop worker.*®

While Thomas seems to believe otherwise, perforce, “no sentence of
confinement of any criminal defendant by any court” can be made to run
concurrently with any concurrent-sentence-prohibited crime’s term. In other words,
it simply doesn’t matter whether both or all crimes in the equation are concurrent-
sentence-prohibited or not. As long as one crime in the calculation is concurrent-
sentence-prohibited, it cannot be made to run concurrently with any other.

So, even if available to him, any changes to § 3901(d) wrought by the 2019
Amended Sentencing Act would make no substantive difference in Thomas’s case.

WI. CONCLUSION

Thomas is not asking the Court to take a timely second look at his sentence

and reconsider its harshness in light of the sentencing factors extant when it was first

imposed. Nor is he asking for the Court to now consider some genuinely compelling

 

a DEL. CODE ANN. tit. 11, § 3901(d) (2019).

=e See id.

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change in his individual circumstances that makes a resentencing urgent. Hence,
resort to Criminal Rule 35(b) is wholly unavailable to him.

Thomas is asking for the retroactive application of the 2019 Amended
Sentencing Act—a sentencing reform provision enacted while he was already in
prison serving his sentence. But the General Assembly neither provided for such
retroactivity explicitly nor included special procedures to address its retrospective
application. Thus, application of the 2019 Amended Sentencing Act is prohibited.

And lastly, even if the Court could retroactively apply the provisions of the
2019 Amended Sentencing Act, it could not order any other term of incarceration to
run concurrently with his ineligible PFDCF sentence.

In turn, Thomas’s motion for sentence modification must be DENIED.

Kit dle.

Paul R. Wallace, Judge

 

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