   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                IN AND FOR NEW CASTLE COUNTY

                                      )
STATE OF DELAWARE                     )
                                      )      I.D. No. 1204019391
      v.                              )               1205020519
                                      )
KEVIN L. PRIEST                       )
                                      )
                  Defendant           )


                        Submitted: August 1, 2014
                        Decided: October 6, 2014

  On Defendant’s Motion to Have Concurrent Sentence of Imprisonment
                              Imposed.
                             DENIED.


                                ORDER
Matthew B. Frawley, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State

Kevin L. Priest, Smyrna, Delaware, pro se

COOCH, R.J.

       This 6th day of October, 2014, upon consideration of Defendant’s
Motion to Have Concurrent Sentence of Imprisonment Imposed, it appears
to the Court that:

      1.    Defendant Kevin L. Priest pled guilty to two counts of drug
            dealing in July 2012. In September 2012, Defendant was
            sentenced as a habitual offender to a total of 9 years at Level V,
            suspended after 5 years for eighteen months at Level IV,
              suspended after six months with the balance to be served on
              Level III probation.1

       2.     Defendant filed a Motion for Correction of Sentence in
              November 2013, requesting that this allow him to serve a
              portion of his sentence on work release after completion of a
              treatment program. 2 That motion was subsequently denied by
              this Court.3

       3.     Defendant filed the instant “Motion of a Formal Letter,” on
              August 1, 2014. In his filing, Defendant requests, pursuant to
              the amendments to 11 Del. C. 3901, that this Court amend his
              sentence and allow his two sentences to run concurrently, rather
              than consecutively. 4

       4.     As amended, Section 3901(d) provides in part: “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 defendant.” 5

       5.     Delaware case law is well settled on this point, and provides
              that “a law will not be construed as retroactive unless the Act
              clearly, by express language or necessary implication, indicates
              that the legislature intended a retroactive application.” 6




1
  See Docket #16 (Sept. 21, 2012). On the first count, Defendant was sentenced to three
years at Level V with credit for eighty-eight days served. On the second count, Defendant
was sentenced to six years at Level V, suspended after two years for eighteen months at
level V, suspended after six months for the balance to be served on Level III probation.
2
  See Def.’s Motion for Correction of Sentence at 1.
3
  See Docket #18 (Nov. 13, 2013); Docket #19 (Nov. 18, 2013).
4
  Def.’s Motion at 1. H.B. 312, the source of the authority that Defendant argues gives
this court the ability to revise his sentences, amends 11 Del. C. 3901 in part.
5
  11 Del. C. § 3901(d).
6
  State v. Ismaaeel, 840 A.2d 644 (Del. Super. 2004) (quoting State v. Nixon, 46 A.2d
874, 875 (Del. Gen. Sess. 1946)) (internal quotation marks omitted).


                                           2
       6.     This Court finds that Section 3901(d), as amended does not
              have retroactive effect. 7 As a result, Defendant’s September
              2012 sentences on the two counts of drug dealing to which he
              pled guilty cannot be revisited under 3901(d).


Therefore, Defendant’s Motion to Have Concurrent Sentence of
Imprisonment Imposed is DENIED.

       IT IS SO ORDERED.


                                                _______________________
                                                     Richard R. Cooch, R.J.

cc:    Prothonotary
       Investigative Services
       Matthew B. Frawley, Esquire
       Kevin L. Priest




7
 See State v. Jennings, 2014 WL 3943089, at *1 (Del. Super. Aug. 11, 2014) (finding
“Section 3901(d), as amended, was not intended by the Delaware General Assembly to
have a retroactive effect.”).


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