        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                              )
                                                )
       v.                                       )             ID No. 0910008675
                                                )
MICHAEL L. WELLS,                               )
                                                )
       Defendant.                               )

                               Date Submitted:        May 29, 2020
                               Date Decided:          June 3, 2020

                                             ORDER

       Upon consideration of Defendant’s Motion for Review of Sentence

(“Motion”), State’s response thereto, Superior Court Criminal Rule 35, statutory and

decisional law, and the record in this case, IT APPEARS THAT:

       1.      On August 8, 2010, Defendant pled guilty to Robbery First and

Attempted Robbery First Degree.1 By Order dated August 12, 2013, effective

October 12, 2009, Defendant was sentenced as follows: for Robbery First Degree,

IN09-10-1188, 25 years at Level V, suspended after 5 years, for 1 year at supervision

Level IV Halfway House, hold at Level V until space is available at Level IV

Halfway House, followed by 2 years at supervision Level III;2 and for Attempted




1
  D.I. 20.
2
  D.I. 23. While at Level V, Defendant is to successfully complete Key South Program at Sussex
Correctional Center. The first 3 years of this sentence is a mandatory term of incarceration pursuant
to 11 Del. C. § 832. The Level V portion of this sentence is served without benefit of any form of
early release pursuant to 11 Del. C. § 4204(k).
Robbery First Degree, IN09-10-1189, 25 years at Level V, suspended after 5 years,

for 2 years at supervision Level III.3

       2.      On April 22, 2020, Defendant filed the instant Motion, asking the Court

to modify his 1 year of Level IV Halfway House (IN09-10-1188) to 1 year at Level

III GPS, or to 6 months at Level IV Home Confinement followed by 6 months Level

III GPS.4 In support of his Motion, Defendant asserts that he is unable to participate

in Work Release while at Level IV Halfway House because Work Release facilities

are closed as a result of COVID-19.5

       3.      In response, the State does not object to Defendant’s request to modify

the Level IV portion of his sentence to Home Confinement if the Department of

Correction determines that Defendant’s host is appropriate, but, the State does object

to modifying the Level III GPS portion of his sentence at this time. 6

       4.      Superior Court Criminal Rule 35 governs motions for modification of

sentence. Under Rule 35(b), “[t]he Court may . . . reduce the . . . the term or

conditions of partial confinement or probation, at any time.” 7 Defendant’s Motion

is not time-barred because he seeks to modify the Level IV portion of his sentence. 8


3
  Id. The first 3 years of this sentence is a mandatory term of incarceration pursuant to 11 Del. C.
§ 832. The Level V portion of this sentence is served without benefit of any form of early release
pursuant to 11 Del. C. § 4204(k).
4
  D.I. 43.
5
  Id.
6
  D.I. 50.
7
  Super. Ct. Crim. R. 35(b).
8
  D.I. 43.
                                                 2
      5.    Given the State’s response, and because the Court does not know if the

Department of Correction will approve Defendant’s proposed Home Confinement

host, the Court modifies the Level IV portion of Defendant’s sentence in IN09-10-

1188 from Halfway House to “DOC Discretion.”             All remaining terms and

conditions of Defendant’s sentence are appropriate for all the reasons stated at the

time of sentencing.

      NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s

Motion for Review of Sentence is GRANTED IN PART and DENIED IN PART.




                                                   Jan R. Jurden
                                             Jan R. Jurden, President Judge




Original to Prothonotary

cc:   Michael L. Wells a/k/a Brian Carter (SBI # 0026698)
      Matthew Frawley, DAG
      Annemarie H. Pruit, DAG
      Ross Flockerzie, PDO




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