IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
Vv. ) I.D. No. 1408014208
)
)
DAVEION JOHNSON, )
)
Defendant. )
ORDER

AND NOW TO WIT, this 17" day of December 2019, upon consideration of
Defendant Daveion Johnson’s (“Defendant”) Motion for Modification of Sentence,
the sentence imposed upon the Defendant, and the record in this case, it appears to
the Court that:

1. On March 10, 2015, Defendant pleaded guilty before J. Silverman to
one count of Home Invasion, Possession of a Firearm During the Commission of a
Felony (PFDCF), Robbery First Degree, and Conspiracy Second Degree.' He
ordered a PSI and sentencing before this Court was scheduled for July 17, 2015.
Before sentencing and after the plea was accepted, the State entered a nolle prosequi

for the Robbery First Degree charge to conform to a co-defendant’s sentence.

 

' State of Delaware v. Daveion Johnson, Crim. ID No. 1408014208, D.I. 9 (Del. Super. Mar. 10,
2015) [hereinafter “Def.’s Plea Hearing”].

2 State of Delaware v. Daveion Johnson, Crim. ID No. 1408014208, D.I. 16 (Del. Super. July 17,
2015).
Defendant received nine years of minimum mandatory Level V time followed by
nine months at Level IV Work Release and two years at Level III probation.’

2. On September 16, 2019, Defendant filed this request to modify his
sentence under Superior Court Criminal Rule 35(b)* to modify his Level V sentence
so he may complete it at Level V Key and Crest Program.°

a Under Superior Court Criminal Rule 35(b), the Court may reduce a
sentence of imprisonment on a motion made within ninety days after the sentence is
imposed.° Defendant is time-barred. In order to overcome the ninety-day time bar,
Defendant must show that “extraordinary circumstances” forgive the tardiness of his

7

motion.’ Defendant does not meet the definition established by the Delaware

Supreme Court for “extraordinary circumstances” as circumstances‘ that
specifically justify the delay;’ are ‘entirely beyond a petitioner’s control;’ and ‘have

9998

prevented the applicant from seeking the remedy on a timely basis.

 

3 Defendant was sentenced as follows: (1) For the Home Invasion charge, Defendant received a
minimum mandatory sentence of six years of unsuspended time at Level V, followed by nine
months at Level IV Work Release, followed by two years at Level II; (2) for the PFDCF charge,
Defendant received a consecutive minimum mandatory sentence of three years; and (3) for the
Conspiracy Second Degree charge, Defendant received two years at Level V, suspended for one
year at Level III, probation to be served concurrently. Sentence: Corrected ASOP Sentence
Order Signed and Filed on 8/19/2015, State of Delaware v. Daveion Johnson, Crim. ID No.
1408014208, D.I. 17 (Del. Super. Aug. 12, 2015).

4 DEL. SUPER. CT. CRIM. R. 35(b).

> Defendant’s Motion for Modification of Sentence, State of Delaware v. Daveion Johnson,
Crim. ID No. 1408014208, D.I. 27 (Del. Super. Sept. 16, 2019) [hereinafter “Def.’s Mot.”].

® SUPER. CT. CRIM. R. 35(b).

7 See Colon v. State, 900 A.2d 635, 638 (Del. 2006).

8 Diaz, 2015 WL 1741768, at *2 (quoting State v. Lewis, 797 A.2d 1198, 1203, 1205 (Del. 2002)
(Steele, C.J., dissenting)); see Morrison v. State, 846 A.2d 238, 2004 WL 716773, at *1-2 (Del.

2
4. He does not seek a reduction of Level V with the programming request
but he also references “he is aware of the new bill (House Bill No. 5)” that suggests
he seeks concurrent sentencing.’ In support of his motion to reduce his Level V,
Defendant states various grounds for relief'® that do not warrant reduction.

Ds Defendant is serving a minimum mandatory sentence. Rule 35(b)
provides no authority for a reduction or suspension of the mandatory portion of a
substantive statutory minimum sentence.'! Therefore, the Court lacks discretion to
modify Defendant’s minimum mandatory sentence.

6. Defendant’s reference to “House Bill No. 5” is unclear. The Court
assumes he is seeking concurrent sentencing under 11 Del. C. § 3901. Defendant
was sentenced in July 2015 and 11 Del. C. § 3901(d) was amended in June 2019.
Even if the offenses for which he pled guilty fell within the new discretionary
provisions for the fixing of terms of imprisonment under § 3901(d)—and they do

not, these provisions cannot be applied retroactively to modify a consecutive

 

2004) (TABLE) (This exception is not a plea for leniency nor does it permit “exceptional
rehabilitation” to suffice for “extraordinary circumstances.”).

? See Def.’s Mot. at page 6.

'0 Def.’s Mot. at pages 3-4. (Defendant claims that: (1) the alteration of a portion of his sentence
will lead to “positive change in the direction of his life;” (2) he wants to be a better citizen and
son/ grandson; (3) his “poor thinking and subsequent negative decisions” have created “mental,
emotional, and spiritual hardship” for himself and his family; (4) he is more self-aware; (5) he is
“working to bet a better person;” (6) he is involved “with several programs” to assist with
creating a better future; and (7) he understands the need to create a better and “new” life for
himself following the completion of his incarceration.).

'! State v. Sturgis, 947 A.2d 1087, 1092 (Del. 2008).

3
sentence to run concurrently.!2 As such, the sentence remains appropriate for all the
reasons stated at the time of sentencing.

7. Finally, Defendant’s sentence was imposed pursuant to a Plea
Agreement between the State and Defendant.’* After an appropriate colloquy, the
Court addressed Defendant in open court and determined that he understood the
nature of the charge to which the plea was offered, which was then that the possible
penalties included a minimum sentence of twelve years for the offenses to which he
pled guilty. Since the State dropped an offense prior to sentencing, he instead
received even less time, and the most lenient sentence available to this Court.

8. As to his request to modify his placement at level V to Key/Crest, the
Court defers to DOC to determine if the programming is appropriate.

IT IS SO ORDERED that Defendant’s Motion for Modification of Sentence

is DENIED. —
a

   
 

 

Z~ Vivian L. Medinilla
Judge

oc: Prothonotary
cc: Defendant
Department of Justice
Investigative Services

 

12 Id.
'3 Def.’s Plea Hearing.
