      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE




STATE OF DELAWARE,                 )
                                   )
                                   )
     v.                            )      ID. No. 1310004227
                                   )
                                   )      Cr. A. No. IN13-10-1113
VINCENZO TOLLIS,                   )
                                   )
                 Defendant.        )


                       Submitted: November 16, 2015
                         Decided: January 4, 2016


                          OPINION AND ORDER


     Upon Defendant, Vincenzo Tollis’s, Motion for Sentence Modification,
                                DENIED.




David H. Holloway, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, for the State of Delaware.

T. Andrew Rosen, Esquire, Assistant Public Defender, Office of the Public
Defender, Wilmington, Delaware, for Defendant Vincenzo Tollis.




WALLACE, J.
    I.        INTRODUCTION

          Before the Court is Defendant VincenzoTollis’smotion for sentence

modification.Tollis, who is serving a term of incarceration for first degree robbery,

asks the Court to alter its sentencing order “to retain jurisdiction for possible

modification at a later time” so that the Court might make “a determination at that

time as to whether or not Tollis has earned some consideration for an earlier

release date.” 1For the reasons stated below, Tollis’sapplication is DENIED.

    II.       PROCEDURAL BACKGROUND

          In February 2015, Vincenzo Tollisentered into a plea agreement with the

State through which he pleaded guilty to one count of Robbery in theFirst

Degree. 2 He did so in exchange for dismissal of the remaining charges and a

favorable sentencing recommendation (the State’s withholding of a habitual

criminal petition 3 and request for twelve years unsuspended imprisonment 4).

1
          See Def.’s. Supp. Ltr., at 1 (D.I. 54).
2
       Plea Agreement and TIS Guilty Plea Form, State v. Vincenzo Tollis, ID No. 1310004227
(Del. Super. Ct. Feb. 25, 2015).
3
       DEL. CODE ANN. tit. 11, § 4214(a) (2013) (providing that a person who has been thrice
previously convicted of a felony and is thereafter convicted of another felony may be declared an
habitual criminal offender; the Court may then, in its discretion, impose a sentence of up to life
imprisonment for that or any subsequent felony).
4
       Id. at §§ 832(a) and 4201(c) (2013) (robbery in the first degree is a violent class B
felony); id. at §§ 4205(b)(2) & (d) (2013) (statutory maximum for a class B felony is up to 25
years imprisonment); id. at§ 4214(a) (any person sentenced under 11 Del. C. § 4214(a) must
receive a minimum sentence of not less than the statutory maximum penalty otherwise provided
for any fourth or subsequent title 11 violent felony that forms the basis of the State’s habitual
criminal petition).
                                                    -2-
         His sentencing occurred a couple of months later, in April 2015, after a pre-

sentence investigative report was prepared.             Tolliswas sentenced to 25 years,

suspended after he serves eight years imprisonment, for diminishing levels of

supervision and intensive probation. 5

         Tollisfiled no direct appeal from his conviction or sentence. But the month

after his sentencing, through counsel, he filed the present motion requesting

modification of his sentence. 6

         In his initial motion, Tollis claimed “he has already been approved for the

KEY program7something that [the Department of Correction (“DOC”)] does not

normally approve until an inmate is within 2 years of release,” that he appeared to

be “on an accelerated track for treatment and rehabilitation,” and so a motion for

reduction of sentence “may be meritorious in the future.” 8Further inquiry into this

claim revealed that Tollis’sDOC risk assessment required that he be held at

maximum security, that he could not even be considered for the Key Program with

this high security status, “and [that he] was recommended to be screened for said

5
         Sentencing Order, State v. Vincenzo Tollis, ID No. 1310004227 (Del. Super. Ct. Apr. 14,
2015).
6
         Def.’s Mot. to Modify Sent. (D.I. 50).
7
       “‘Key’ refers to the Key Therapeutic Community, a six to eighteen month drug treatment
program established by the Delaware Department of Correction.” State v. Lennon, 2003 WL
1342983, at *1 (Del. Mar. 11, 2003).
8
         Def.’s Mot. to Modify Sent., at 1-2.

                                                  -3-
program at a later date.” 9 He has asked, therefore, that the Court exercise its

inherent authorityand modify his sentencing order to “reflect that the Court will

retain jurisdiction to modify the sentence based on completion of significant

programming of treatment and rehabilitation.” 10

     III.   DISCUSSION

        When addressing a sentence modification request, the Court first identifies

the specific procedural mechanism the inmate attempts to invoke; it must then

determine whether that mechanism is available under the circumstances. Tollis

moves this Court “for an [o]rder modifying the sentence imposed . . . pursuant to

Superior Court Criminal Rule 35.” 11Within themotion he then invokes this Court’s

“inherent authority to modify a sentence, where a Judge, in his sentencing Order,

reserves that authority to modify a sentence upon the occurrence of certain

conditions.” 12 So Tollis cites two distinct sources of authority under which the

Court may modify a sentence: its statutory authority and its inherent authority. 13

But Tollis does little to address the requirements for the Court’s exercise of either.

9
        Def.’s Supp. Ltr., at 1 (D.I. 54).
10
        Def.’s Mot. to Modify Sent., at 2.
11
        Id. at 1.
12
        Id. at 2 (quoting State v. Sloman, 886 A.2d 1257, 1265 (Del. 2005)).
13
        Sloman, 886 A.2d at 1265; State v. Johnson,2006 WL 3872849, at *3 (Del. Super. Ct.
Dec. 7, 2006).


                                               -4-
     NEITHER THIS COURT’S CRIMINAL RULE 35(b),NOR ITS LIMITED “INHERENT
     AUTHORITY” TO MODIFY SENTENCES,ALLOW IT TO ADMINISTER SOME FORM
                      OF JUDICIALLY-CREATED PAROLE.

         The 1989 Truth-in-Sentencing Act completely eliminated parolefor crimes

committed after its effective date. 14 Section 2 of that Act clearly articulated the

General Assembly’s purpose when it did so:

            To achieve truth in sentencing by assuring that the public, the
            State and the court will know that the sentence imposed by the
            court will be served by the defendant and that the defendant
            will know what the actual effect of the sentence will be. 15

Those other provisions of law that regulate review and reduction of sentences of

imprisonment must be read in parimateria with the Truth-in-Sentencing Act and

interpreted in a manner consistent with their own express language and history.

         A. Superior Court Criminal Rule 35(b) is not a tool for opening a
            window to sentence diminution not otherwise available under the
            Rule’s own terms.

         The purpose of Superior Court Criminal Rule 35(b) historically has been to

provide a reasonable period for the Court to consider alteration of its sentencing

judgments. 16 And the obvious intent expressed by Rule 35(b)’s language has

always been to set a reasonable temporal limitation upon the Court’s alteration of


14
         Evans v. State, 872 A.2d 539, 554 (Del. 2005); Crosby v. State, 824 A.2d 894, 900 (Del.
2003).
15
         67 Del. Laws c. 130, § 2 (1989).
16
         State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015).


                                               -5-
those judgments and to prevent the Court from reducing a sentence imposed well

before the application is made. 17HenceRule 35(b) requires that an application to

reduce imprisonment be filed promptly 18 – i.e. within 90 days of the sentence’s

imposition – “otherwise, the Court loses jurisdiction” to act thereon. 19

       Where a motion for reduction of sentence of imprisonment is filed within 90

days of sentencing, the Court has broad discretion to decide if it should alter its

judgment. 20 “The reason for such a rule is to give a sentencing judge a second

chance to consider whether the initial sentence is appropriate.” 21 The Court has


17
       See Johnson v. State, 234 A.2d 447 (Del. 1967) (per curiam) (interpretation of previous
version of sentence reduction rule that had time limitation with no exceptions); seealso ABA
STANDARDS FOR CRIMINAL JUSTICE: SENTENCING § 18-7.1 (3d ed. 1994) (“The rules of
procedure should authorize a sentencing court, upon motion . . . to reduce the severity of any
sentence. The rules should restrict the time for reduction in severity of a sentence to a specified
period after imposition of a sentence.”).
18
       See, e.g.,R.I. Super. Ct. R. Crim. P. 35, historical note (1972) (noting such a provision is
“intended to provide the court with an opportunity during a limited period after sentencing to
exercise leniency in the event the court, for some reason, determines that the sentence imposed
was unduly severe or a shorter sentence would be desirable”).
19
        In re Nichols, 2004 WL 1790142, at *1 (Del. Super. Ct. July 20, 2004). See State v.
Lewis, 797 A.2d 1198, 1205 (Del. 2002) (Steele, J., dissenting) (“after 90 days . . . the judiciary
may not consider [an inmate’s plea for leniency] except where ‘extraordinary circumstances’
may have prevented the applicant from seeking the remedy on a timely basis”); see also State v.
Tinsley, 928 P.2d 1220, 1223-24 (Alaska Ct. App. 1996) (explaining the time limitation in
Alaska’s then-extant rule exists so that trial court does not have nearly boundless continuing
authority to reduce a defendant’s sentence); State v. Jensen, 429 N.W.2d 445, 446-47 (N.D.
1988) (120-day time limitation is jurisdictional).
20
        Hewett v. State, 2014 WL 5020251, at *1 (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.”).
21
       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
                                               -6-
limited that time to 90 days while permitting a certain restrained level of discretion

to extend that period under the rule if a defendant demonstrates “extraordinary

circumstances” for consideration outside the 90 days. 22But“[i]n 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.” 23

       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.”24 And 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.” 25Tollisfiles now so as to avoid any “extraordinary circumstances” analysis



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); Tinsley, 928 P.2d at 1223 (under Alaska’s then-extant 120-day 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”).
22
       State v. Lewis, 797 A.2d 1198 (Del. 2002).
23
       State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015); State v. Remedio, 108 A.3d
326, 332 (Del. Super. Ct. 2014).
24
       Diaz, 2015 WL 1741768 at *2 (citing BLACK’S LAW DICTIONARY (10th ed. 2014)).
25
       Id.; Remedio, 108 A.3d at 332.


                                               -7-
required to overcome Rule 35(b)’s time-bar; this is because the grounds he alleges

might eventually exist have been specifically and consistently rejected by

Delaware’s courts as adequate to qualify as “extraordinary circumstances” under

Rule 35(b). 26

       When a timely Rule 35(b) motion is filed but cannot be acted upon within

the 90-day deadline, this Court should retain jurisdiction only for a reasonable time

beyond the 90-day time limit. Whether the Court’s actions fall within“reasonable

time” is determined by considering “whether the record shows a legitimate cause

for the delay and whether that delay was reasonable in light of the rationales

underlying the time limit.” 27Such a “reasonable time” rule is not a “‘license to wait

and    reevaluate      the    sentencing      decision     in    the    light   of    subsequent




26
        See DeShields v. State, 2012 WL 1072298, at *1 (Del. Mar. 30, 2012)
 (“This Court has held that participation in educational and rehabilitative programs, while
commendable, does not, in and of itself, constitute ‘extraordinary circumstances’ for purposes of
Rule 35(b).”); Triplett v. State, 2008 WL 802284, at *1 (Del. Mar. 27, 2008) (“While
participation in rehabilitation programs is commendable, it is well-settled that such participation,
in and of itself, is insufficient to merit substantive review of an untimely motion for sentence
reduction.”); Allen v. State,2002 WL 31796351, at *1 (Del. Dec. 11, 2002) (no “extraordinary
circumstances” where defendant maintained a commendable behavioral record and completed
several educational and treatment programs); State v. Redden, 111 A.3d 602, 607-08 (Del. Super.
Ct. 2015) (collecting cases and explaining reasons why rehabilitative efforts are not “exceptional
circumstances” under Rule 35(b)); State v. Liket, 2002 WL 31133101, at *2 (Del. Super. Ct.
Sept. 25, 2002) (“Exemplary conduct and/or successful rehabilitation do not qualify as
extraordinary circumstances within the purview of Rule 35 and are insufficient grounds for
supporting a Rule 35 reduction of sentence.”).
27
       State v. Fisch, 133 P.3d 1246, 1248-49 (Idaho Ct. App. 2006).


                                                -8-
developments’”like an inmate’s good behavior during his years of incarceration.28

Yet that isprecisely what Tollis would have the Court do in his case.Tollisattempts

what all too many Rule 35(b) applicants attempt—filing a timely Rule 35 motion

as a “placeholder” or “bookmark” for the Court to retain and exercise jurisdiction

over the life of his sentence. 29SoTollis would have the Court not only reject the

express language and purpose of this Court’s rules of criminal procedure 30 to

modify his sentence now,but would have the Court add to that the adulteration of

its “inherent authority” so it might later reduce that sentence.




       B. Tollis’s requested relief is inconsistent with this Court’s rare exercise
           of its “inherent authority” to modify a sentence.

       Again, Tollis is not asking for sentence reduction now. He instead suggests

that the Court can modify his sentence at a later date by exercise of its “inherent

28
       Id. (quoting Diggs v. United States, 740 F.2d 239, 246-47 (3d Cir. 1984)).
29
        See, e.g., State v. Bayard, Del. Super., ID No. 1501004820, Medinilla, J. (Dec. 30, 2015)
(order denying placeholder Rule 35(b) motion); State v. Johnson,2006 WL 3872849 (Del. Super.
Ct. Dec. 7, 2006) (noting the question of whether the Court can consider a timely filed motion to
modify a sentence as a “bookmark” allowing the Court to consider circumstances that arise
beyond Rule 35’s 90-day deadline).
30
        See State v. Lewis, 797 A.2d 1198, 1204 (Del. 2002) (Steele, J., dissenting) (“It seems
obvious that the drafters intended to subject Rule 35 petitions to rational, workable time frames
that could not be enlarged on an ad hoc basis. Indeed, I have difficulty believing that they
anticipated an application of this Rule that would leave open any sentence for reconsideration
indefinitely, restrained only by the discretion of whatever judge happened to be assigned a Rule
35 motion for relief, whether that judge had presided over the initial sentencing or not.”).


                                              -9-
authority to modify a sentence, where a Judge, in his sentencing Order, reserves

that authority to modify a sentence upon the occurrence of certain conditions.”31

But this Court cannot “retain jurisdiction” via its “inherent authority” for the

purpose of delaying decision on sentence reduction (even if a first Rule 35(b)

motion is timely made), for an indefinite period of time, in contemplation of future

events which may or may not occur. Such practice under sentence reduction

regimes similar to Delaware’s has been explicitly rejected 32 and is not at all

consistent with this Court’s limited “inherent authority” to reduce or modify its

sentencing judgments.

          A sentencing judge has the “inherent authority [independent of mechanisms

provided for by court rule or statute] to modify [its] initial sentence based on the

terms of the original sentence itself.” 33The Court exercises its inherent authority




31
          Def.’s Mot. to Modify Sent., at 2 (quoting State v. Sloman, 886 A.2d 1257, 1265 (Del.
2005)).
32
       See, e.g., United States v. Taylor, 768 F.2d 114, 116-18 (6th Cir. 1985) (listing cases);
Diggs v. United States, 740 F.2d 239, 246-47 (3d Cir. 1984) (noting that Federal Rule 35(b) was
meant to ensure that a district court had a temporally-limited opportunity to reconsider its
sentencing decisions, not to be a tool for subverting the executive branch’s parole power); United
States v. Stollings, 516 F.2d 1287, 1289 (4th Cir. 1975); Mamula v. People, 847 P.2d 1135,
1137-38 (Colo. 1993) (trial court cannot be permitted “to hold timely motion for reduction of
sentence in abeyance for months or years while the defendant builds a record of conduct within
the department of corrections”).
33
      Sloman,886 A.2d at 1265 (emphasis added); Johnson, 2006 WL 3872849, at *3 (quoting
Sloman).


                                              -10-
over its original sentencing judgments only in rare circumstances.34For instance,

where a sentencing court has included “ambiguous provisions in [its] original

sentencing Order,” the sentencing judge has the “inherent authority to modify the

initial sentence based on the terms of the original sentence itself” to insure the

original intent of the sentence is carried through. 35

       The Court’s inherent authority over its sentencing judgments, however, “is

not a ready path for circumnavigating this Court’s procedural rules governing

sentence reduction,” 36 this State’s elimination of parole, or this State’s statutory

mechanisms for sentence diminution via good behavior or rehabilitative

efforts.37And the requirements for its invocation and exercise must be adhered to

strictly. 38Tollis’s and similar “placeholder” applications simply do not adhere to

those several requirements.39



34
       State v. Remedio, 108 A.3d 326, 330 (Del. Super. Ct. Dec. 31, 2014).
35
       Sloman, 886 A.2d at 1265 (emphasis added).
36
       Remedio, 108 A.3d at 330.
37
        See, e.g., DEL. CODE ANN. tit. 11, § 4381 (2013) (providing for reduction of prison term
by earned good time); id. at § 4217 (providing for reduction of prison term upon DOC’s
application for good cause, which might include: rehabilitation of the offender, serious medical
illness or infirmity of the offender and prison overcrowding).
38
       Remedio, 108 A.3d at 330.
39
        See id. (noting that among the numerous requirements for Court’s exercise of its inherent
authority is that “the sentencing judge must expressly reserve the authority to modify his or her
sentence . . . upon the occurrence of a certain condition or conditions . . . and [ ] solely to ensure
                                                -11-
         Tollis asks the Court “to retain jurisdiction for possible modification at a

later time” so that the Court might make “a determination at that time as to whether

or not Tollis has earned some consideration for an earlier release date” 40 “based on

completion of significant programming of treatment and rehabilitation.” 41In other

words, Tollis asks the Court to monitor his sentence and release him upon some

future potential happening by retaining jurisdiction throughout his incarceration.

         Such an exercise is hardly the restrained exercise of this Court’s recognized

inherent authority to modify a sentence in certain rare or exceptional

circumstances.42It is insteadasking the Court to engage in a form of judicial parole.




         C.A request for sentence reduction based on an inmate’s claim of
            rehabilitation is properly addressed under title 11, section 4217.

         The Truth-in-Sentencing Act also enacted 11 Del. C. § 4217 – the statutory

substitute for parole. 43 Under § 4217, the Court retains jurisdiction to reduce an


that the primary goal of the original sentence is preserved”); State v. Johnson,2006 WL 3872849,
at *3 (Del. Super. Ct. Dec. 7, 2006).
40
         See Def.’s Supp. Ltr., at 1.
41
         Def.’s Mot. to Modify Sent., at 2.
42
       Remedio, 108 A.3d at 330(“But the exercise of that [inherent] authority [to modify a
sentence] is exceptional, not routine.”).
43
         67 Del. Laws c. 130, § 16 (1989) (Section 4217 was first designated as 11 Del. C. §
4216).
                                              -12-
incarcerative term of greater than a year. 44Butfor the Court to reduce an inmate’s

sentence under § 4217, the Department of Correction must:apply to the Court on

the inmate’s behalf;demonstrate good cause for the reduction; and “certif[y] that

the release of the defendant shall not constitute a substantial risk to the community

or the defendant’s ownself.” 45Cause to reduce an inmate’s level of custody or time

to be served via a § 4217 application includes “rehabilitation of the

offender.” 46 And so, claims like Tollis’s– if they ever ripen – are properly

addressed under title 11, section 4217.47

     IV.   CONCLUSION

       Tollis may not stitch together this Court’s two distinct sources of sentence

reduction or modification authority (i.e., its statutory authority and its inherent

authority) to fashion some form of judicially-supervised parole. Such a sentencing



44
        DEL. CODE ANN. tit. 11, § 4217(a) (2013); Super. Ct. Crim. R. 35(b) (expressly providing
that the Court may reduce a sentence upon application made “pursuant to 11 Del. C. § 4217”).
45
       DEL. CODE ANN. tit. 11, §§ 4217(b)-(c) (2013).
46
       Id. at § 4217(c).
47
        Henry v. State, 2009 WL 3286068, at *1 (Del. Oct. 13, 2009); State v. Liket, 2002 WL
31133101, at *2 (Del. Super. Ct. Sept. 25, 2002) (“[S]ince the purpose of 11 Del. C. § 4217 is to
directly address modification of sentence based on a defendant’s rehabilitation efforts, and 11
Del. C. § 4217 is included within the constructs of Rule (35), it is evident that 11 Del. C. § 4217
is the appropriate governing statute through which Defendant may be entitled to a reduction in
his sentence based on rehabilitation.”); Ketchum v. State, 2002 WL 1290900 (Del. June 10,
2002) (completion of numerous programs are such circumstances as might warrant court to
instruct defendant to seek DOC’s recommendation for 11 Del. C. §4217 relief).


                                               -13-
judgment might, in fact, require the Court to consider the merits of any later

sentence modification request Tollis makes. 48 This Court’s Criminal Rule 35(b)

and its occasional exercise of its inherent sentence modification authority are not

meant to require the Court to continuously revisit any defendant’s sentence

throughout his or her period of imprisonment.Tollis’srequest that the Court engage

in such long-term oversight of his sentence must be DENIED.

       IT IS SO ORDERED.




48
        E.g., Jones v. State, 2006 WL 3054633, at *1 (Del. Oct. 17, 2006) (trial court erred in
applying Rule 35(b) procedural bars when its original sentencing order expressly reserved
authority to consider modification upon specific occurrence); Layton v. State, 2006 WL
1223121, at *1 (Del. Apr. 24, 2006) (“Given the Superior Court’s explicit retention of
jurisdiction over Layton’s sentence, we agree that it was an abuse of discretion for the Superior
Court not to consider the merits of Layton’s first motion for a sentence modification.”). Cf.
Francis v. State, 2006 WL 4459527 (Del. Dec. 22, 2006) (when this Court, in its original
sentencing order, expressly invokes its inherent authority to retain jurisdiction to modify a
sentence upon an occurrence, it must consider a sentence modification request upon that
occurrence, but retains its sound discretion to grant or deny the modification then-requested).


                                              -14-
