      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                     :
                                      :
      v.                              :     Case No. 0707021261
                                      :
BEVERLY A. BAKER,                     :
                                      :
                   Defendant.         :


                                     ORDER


      This 9th day of June, 2020, upon consideration of Defendant’s Motion for

Sentence Modification and the State’s Response, Defendant’s Motion is DENIED.

      It appears that:

      1.    In September, 2007, Defendant was indicted for Murder First Degree

and Possession of a Firearm During Commission of a Felony (PFDCF). On July 7,

2008, a jury found the Defendant guilty of Manslaughter (a lesser included

offense) and Possession of a Firearm During Commission of a Felony (“PFDCF”).

      2.    On July 29, 2008, Defendant filed a Motion for a Mistrial. The Court

denied the motion on February 12, 2009.

      3.    On February 13, 2009, Defendant was sentenced to twenty years at

Level V suspended after 10 years for decreasing levels of probation

(Manslaughter) and ten years at Level V (PFDCF). Defendant now, for the fourth

time, seeks modification of her sentence.
         4.     On February 20, 2009, Defendant filed her first Motion for Reduction

of Sentence pursuant to Delaware Superior Court Criminal Rule 35.1 The Court

denied         the    sentence       reduction       motion      on      May       5,        2009.

         5.     Defendant then challenged her conviction in an appeal to the Supreme

Court of Delaware.            On December 9, 2009, the Supreme Court affirmed

Defendant’s conviction and sentence.2 The Delaware Supreme Court issued its

Mandate on December 28, 2009 and the Mandate was filed with the Delaware

Superior Court on January 4, 2010.

          6.    The facts of the case are that:



1
    Delaware Superior Court Criminal Rule 35:

         (a) Correction of Sentence. The court may correct an illegal sentence at any time
         and may correct a sentence imposed in an illegal manner within the time provided
         herein for the reduction of sentence.

         (b) Reduction of Sentence. The court may reduce a sentence of imprisonment on a
         motion made within 90 days after the sentence is imposed. This period shall not
         be interrupted or extended by an appeal, except that a motion may be made within
         90 days of the imposition of sentence after remand for a new trial or for
         resentencing. The court may decide the motion or defer decision while an appeal
         is pending. The court will consider an application made more than 90 days after
         the imposition of sentence only in extraordinary circumstances or pursuant to 11
         Del. C. § 4217. The court will not consider repetitive requests for reduction of
         sentence. The court may suspend the costs or fine, or reduce the fine or term or
         conditions of partial confinement or probation, at any time. A motion for
         reduction of sentence will be considered without presentation, hearing or
         argument unless otherwise ordered by the court.

         (c) Correction of Sentence by Sentencing Court. The court, acting within 7 days
         after the imposition of sentence, may correct a sentence that was imposed as a
         result of arithmetical, technical, or other clear error.
2
    Baker v. State, 2009 WL 4688947 (Del. Dec. 9, 2009).

                                                 2
                 (1) Baker and Carl Block engaged in a romantic relationship for
                 several years. In June 2007, Block quietly commenced another
                 romantic affair that Baker discovered by calling recently dialed
                 numbers on his phone. After a woman answered her investigative
                 call, Baker hid Block’s phone and returned her key to his apartment.
                 Block changed the locks.

                 (2) Late at night, during the following month, Baker and Block met
                 in the Town & Country Shopping Center parking lot. Gun shots rang
                 out and several witnesses saw a person lying on the ground. As she
                 stood over Block, Baker told another witness that he “just slipped.”
                 Unsettled by Block’s predicament, this witness later asked a restaurant
                 employee to call 911. When police arrived at the parking lot, Block
                 lay on the ground with a gunshot to his chest and blood visible on his
                 back. Baker had left, and the police could not find the gun.

                 (3) The State charged Baker with First Degree Intentional Murder
                 and Possession of a Firearm During Commission of a Felony. Baker
                 claimed that depression over financial issues drove Block to commit
                 suicide.3

          7.     On March 9, 2011, after her unsuccessful appeal, Defendant then filed

a Motion for Postconviction Relief pursuant to Delaware Superior Court Criminal

Rule 61.4

          8.     On November 9, 2011, the Court denied the postconviction relief

motion.

          9.     On February 9, 2016, Defendant filed a second Motion for Reduction

of Sentence.

          10.    On February 19, 2016, the Court denied the second Motion for

Reduction of Sentence.
3
    Id. at *1.
4
    State v. Baker, 2011 WL 4638790, at *1 (Del. Super. Sept. 22, 2011).
                                                 3
      11.   On August 14, 2017, Defendant filed a third Rule 35 Motion seeking

to have her probation transferred to Pennsylvania upon release from Level V.

      12.   On August 22, 2017, the Court granted transfer to Pennsylvania after

completion of her Level V incarceration.

      13.   On May 8, 2020, Defendant filed the instant Motion for Sentence

Modification.

      14.   On May 14, 2020, the State filed its Reply to the motion and

strenuously objected.

      15.   As grounds for the instant Motion, Defendant asserts that

extraordinary circumstances exist.    Specifically, Defendant contends that the

COVID-19 virus, her age (59), her health challenges (diabetes, hyperthyroidism,

arthritis, high cholesterol, and GERD), and her participation in various

rehabilitation programs all combine to necessitate an early release from prison.

She also asserts that she is committed to making a positive change in the direction

of her life, accepts responsibility for her offenses, and is remorseful for her

conduct.

      16. The State contends that Defendant’s Motion is both repetitive and

untimely. The State also asserts that the Department of Corrections has made no

application on Defendant’s behalf for a sentence reduction under 11 Del. C. §




                                           4
4217(b).5       In addition, the State writes that Defendant has not established

exceptional circumstances that would allow the Court to reduce her sentence. The

State argues that Defendant has failed to show that she has a heightened risk of

contracting COVID-19 or that adequate medical care is not available to her.

Moreover, the State writes that Defendant’s successful rehabilitative efforts do not

constitute extraordinary circumstances.

          17. Before considering the merits of the Rule 35(b) Motion, the Court must

first consider whether it is procedurally barred.6 Rule 35(b) bars untimely and

repetitive motions.7 Defendant’s Motion is not timely because it was not filed

within 90 days of her sentence. Furthermore, Defendant’s Motion is repetitive

because Defendant filed three previous motions for sentence modification.

Nevertheless, the Court will consider Defendant’s untimely Motion for Sentence

Modification to determine whether there are extraordinary circumstances.8

          18.    As to Defendant’s health issues and age in relation to the COVID-19

pandemic, the Court views this matter with great concern. As such, the Court

wrote to the Department of Corrections to obtain a complete review of Defendant’s

5
  11 Del. C. § 4217(b): “The court may modify the sentence solely on the basis of an application
filed by the Department of Correction for good cause shown which certifies that the release of
the defendant shall not constitute a substantial risk to the community or the defendant's own
self.”
6
    State v. Reed, 2014 WL 7148921, at *3 (Del. Super. Ct. Dec. 16, 2014).
7
    See State v. Redden, 111 A.3d 602, 607, 609 (Del. Super. Feb. 16, 2015).
8
    Id.

                                                 5
medical conditions. On June 2, 2020, the Department of Corrections (the “DOC”),

through the Delaware Department of Justice, responded. The DOC provided a full

report on Defendant’s medical condition and medical care. The DOC’s medical

director reviewed Defendant’s medical records and determined that Defendant’s

“allegations regarding her medical care are not extraordinary.”9                 Defendant’s

medical conditions include “Hypothyrodism (well-controlled), GERD, pre-

diabetes, and intermittent dizziness.”10 A May 13, 2020 Medical Order, quoted in

the DOC’s response, shows that Defendant’s medical conditions are being treated.

In addition, the DOC states that “[n]o inmates at [the institution where Defendant

is housed] have tested positive for COVID and the Department of Correction is

actively monitoring offenders for potential symptoms.” 11 The DOC concludes that

Defendant is “no more vulnerable to COVID than the average person.”12

           19. Based on this report, it appears as though Defendant’s medical issues

are being addressed. Defendant has not shown that a serious medical condition

was disregarded or is being disregarded.13 Furthermore, the DOC’s response to the

Court’s inquiry indicates that the prison is aware of Defendant’s medical situation

9
    State’s Letter of June 2, 2020, at 1-2.
10
     Id. at 2.
11
     Id. at 3.
12
     Id.
13
   Szubielski v. Correct Care Solutions, LLC, 2014 WL 5500229, at *2 (Del. Ch., Oct. 31, 2014),
cited in State v. Bednash, 2020 WL 2917305, at *1 (Del. Super. June 3, 2020).

                                               6
but, apparently, considers it institutionally manageable.              The DOC has not

petitioned the Court to release her pursuant to 11 Del. C. § 4217(b).

       20.    Defendant also cites her participation in numerous prison programs.

The Court acknowledges that she has availed herself of many programs. However,

the Court is not persuaded by her assertion that she should be released based on her

belief that she has maxed out on what she can learn or that participation in

additional programs would be of marginal value.               Education, maturation, and

insight are not grounds for release.14

       21.    While it is understandable that Defendant is worried about COVID-19

and would like to be released from prison so that she can go to Pennsylvania,

Defendant has not shown sufficient grounds to grant release.

       ACCORDINGLY, Defendant’s Motion for Modification of Sentence is

DENIED.

       IT IS SO ORDERED.



                                           /s/ Diane Clarke Streett
                                           Diane Clarke Streett, Judge



14
   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).”); State v.
Liket, 2002 WL 31133101, at *2 (Del. Super. Sept. 25, 2002) (“A defendant's exemplary conduct
and/or successful rehabilitation while imprisoned do not qualify as “extraordinary
circumstances” within the purview of Rule 35 and are insufficient grounds for supporting a Rule
35 reduction of sentence.”).
                                                 7
Original to Prothonotary

cc:   Maria T. Knoll, Esquire, Deputy Attorney General
      Gregory E. Smith, Esquire, Deputy Attorney General
      Michael W. Modica, Esquire




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