     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                           )
                                             )
                                             )
v.                                           )            ID No. 1212005871A
                                             )
JOEQWELL S. COVERDALE,                       )
                                             )
                         Defendant.          )


                             Submitted: July 31, 2014
                             Decided: August 11, 2014

        ORDER DENYING MOTION TO REDUCE SENTENCE

       This 11th day of August, 2014, upon consideration of the Defendant’s

Motion for Sentence Reduction and the record in this matter, it appears to

the Court that:

       (1)     On February 14, 2014, following a jury trial, Joeqwell S.

Coverdale was convicted of three counts of first degree robbery, one count

of second degree robbery, second degree conspiracy and four counts of

possession of a firearm during the commission of a felony (“PFDCF”). 1 On

June 13, 2014, Coverdale was sentenced to serve: (1) ten years at Level V,


1
  DEL. CODE ANN. tit. 11, § 832 (2012) (robbery in the first degree); id. at § 831 (robbery
in the second degree); id. at 512 (conspiracy in the second degree); id. at § 1447A
(PFDCF).
suspended after three years for lesser levels of supervision for one robbery

first degree charge, and three years at Level V for each of the other two

robbery first degree charges; (2) three years at Level V for each of the four

PFDCF counts; (3) five years at Level V, suspended immediately for

robbery second degree; and (4) two years at Level V, suspended

immediately for conspiracy second degree. Coverdale’s 21-year term of

unsuspended imprisonment is comprised wholly of minimum terms of

incarceration that must be imposed and cannot be suspended.2

       (2)     Coverdale filed a direct appeal from his convictions and

sentence, which is now pending. 3

       (3)     Coverdale then filed the present motion under Superior Court

Criminal Rule 35(b) requesting reduction of his Level V term. 4 Coverdale

appears to seek application of recently amended provisions of 11 Del. C.



2
        DEL. CODE ANN. tit. 11, § 832(b)(1) (2012) (“Notwithstanding any provisions of
this section or Code to the contrary, any person convicted of robbery in the first degree
shall receive a minimum sentence of . . . [t]hree years at Level V . . .”); id. at
§§ 1447A(b) & (d) (“A person convicted [of PFDCF] shall receive a minimum sentence
of 3 years at Level V . . . [and a]ny sentence imposed for a violation of this section shall
not be subject to suspension . . .”). See State v. Lennon, 2003 WL 1342983, at *1 (Del.
Mar. 11, 2003) (court must impose the statutory minimum for robbery first degree).
3
        See Not. of Appeal, Joeqwell S. Coverdale v. State of Delaware, No. 377, 2014
(Del. filed July 14, 2014).
4
       Super. Ct. Crim. R. 35(b) (providing that, under certain conditions, the Court may
reduce a sentence of imprisonment on an inmate’s motion).



                                            -2-
§ 3901, 5 suggesting they may be applied under Rule 35(b) to reduce his

overall term of incarceration by running certain of his sentences

concurrently. 6 He asks also that the Court defer ruling on his motion until

after disposition of his direct appeal.7

         (4)         The Court may consider such a motion “without presentation,

hearing or argument.” 8 And while the Court may defer decision of this

motion during the pendency of Coverdale’s appeal, the Court may also

decide the motion now. 9 The Court will decide this motion on the papers

filed.

         (5)     The intent of Superior Court Criminal Rule 35(b) has

historically been to provide a reasonable period for the Court to consider

alteration of its sentencing judgments. 10 Where a motion for reduction of

sentence is filed within 90 days of sentencing, the Court has broad

discretion to decide if it should alter its judgment. The reason for such a

5
       See 79 DEL. LAWS c. 297 (2014) (effective July 9, 2014; amends 11 Del. C.
§ 3901(d) to grant a sentencing judge discretion to impose either concurrent or
consecutive sentences for certain crimes).
6
         Def. Rule 35(b) Mot. at 1-2.
7
         Id. at 2.
8
         Super. Ct. Crim. R. 35(b).
9
         Id.
10
         Johnson v. State, 234 A.2d 447, 448 (Del. 1967) (per curiam).



                                            -3-
rule is to give a sentencing judge a second chance to consider whether the

initial sentence is appropriate.11 But, while the Court has wide discretion to

reduce a sentence upon a timely Rule 35 application, the Court has no

authority to reduce or suspend the mandatory portion of any substantive

statutory minimum sentence. 12

        (6)   The Court was constrained to impose at least a 3-year

mandatory prison term for each first degree robbery charge 13 and at least a

3-year mandatory prison term for each PFDCF charge. 14 At Coverdale’s

sentencing, the Court was statutorily prohibited from ordering any of those

prison terms to run consecutively. 15 And even under the new provisions of


11
        See United States v. Ellenbogan, 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)); see also 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).
12
      State v. Sturgis, 947 A.2d 1087, 1092 (Del. 2008) (“Superior Court Rule of
Criminal Procedure 35(b) provides no authority for a reduction or suspension of the
mandatory portion of a substantive statutory minimum sentence.”) (emphasis in original).
13
       DEL. CODE ANN. tit. 11, § 832(b) (2012). See State v. Lennon, 2003 WL
1342983, at *1 (Del. March 11, 2003) (court must impose minimum for robbery first
degree; at the time of Lennon’s plea that was 2 years).
14
       DEL. CODE ANN. tit. 11, § 1447A(b) (2012).
15
       DEL. CODE ANN. tit. 11, § 3901(d) (2012) (“No sentence of confinement of any
criminal defendant ... shall be made to run concurrently with any other sentence of
confinement imposed on such criminal defendant.”).



                                           -4-
§ 3901(d), the Court has no authority to impose concurrent sentencing for

certain serious crimes.          Those crimes include robbery first degree and

PFADCF. 16

        (7)     In turn, the Court must deny Coverdale’s motion to reduce his

sentence.

        NOW, THEREFORE, IT IS ORDERED that Joeqwell S.

Coverdale’s motion for reduction of sentence is DENIED.




                                                       Paul R. Wallace, Judge

Original to Prothonotary

cc:     Caterina Gatto, Deputy Attorney General
        John S. Malik, Esquire
        Mr. Joeqwell S. Coverdale, pro se
        Investigative Services Office




16
          DEL. CODE ANN. tit. 11, § 3901(d) (Supp. 2014) (“. . . no sentence of confinement
. . . shall be made to run concurrently with any other sentence of confinement imposed
. . . for any conviction of . . . Robbery in the first degree [or] . . . Possession of a firearm
during the commission of a felony . . . .”).

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