       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                     IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,                    )
                                      )
                                      )
             v.                       )     ID No. 1408013012
                                      )
                                      )
JOSE G. LOPEZ-MONCADA,                )
                                      )
             Defendant.               )


                                  ORDER

      Defendant has moved for a modification of the sentence imposed

after he entered pleas of guilty to one count of third offense DUI and one

count of reckless driving alcohol related, the latter of which arose from a

separate incident. As part of the plea agreement the State agreed not to

seek more than seven months incarceration at Level 5 for the DUI

charge.   On December 19, 2014 Defendant was sentenced for a third-

offense DUI as follows:

             •    Two years at Level 5.         This sentence was imposed
                  pursuant to 11 Del. C. § 4202(k), meaning that Defendant
                  is not entitled to any form of early release.

             •    Six months at Level 3 probation following completion of
                  the two year Level 5 sentence.      This probation was
                  imposed pursuant to 11 Del. C. § 4202(l) because the
                  court determined he was in need of additional treatment
                  and monitoring.

The sentence imposed for the reckless driving alcohol related conviction

is not at issue here.
       Defendant argues in his Rule 35 motion that (1) his sentence was

excessive; (2) the prosecutor made improper comments at sentencing

when he “impliedly suggested” that the court exceed the sentence agreed

upon in the plea agreement; (3) the sentence was imposed in violation of

“the spirit of Supreme Court Administrative Directive 76;” (4) his

treatment needs exceed the need for maximum incarceration; and (5) the

court’s use of section 4204(k) is inconsistent with SENTAC policy.


                     The sentence was not excessive.

       Defendant argues that his sentence was excessive. He asserts that

a   “seasoned   prosecutor   determined     that    under   the   totality   of

circumstances, and compared with similar cases handled by his office,

that 7 months was a reasonable amount of Level 5 time.”           Defendant

expressly recognizes, however, that sentencing authority is vested in the

court and not in the office of the prosecutor.

       After a review of the record the court concludes that Defendant’s

sentence was not excessive.     This is Defendant’s third DUI conviction

within the past five years and his second within the past two years. He

was pulled over by a police officer for driving in excess of 80 m.p.h. on I-

495.    After being stopped Defendant swayed when he walked and his

eyes were glassy and bloodshot.       Defendant refused to undergo field

sobriety tests and refused an intoxilyzer test.    He was then charged with

DUI.




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      While out on bail for this offense Defendant was involved in a one

car accident in Newport.       When police arrived they observed that

Defendant struck two light posts and a tree. Defendant told the police he

had ostensibly swerved to avoid “something” in the middle of the road.

The police observed that Defendant struck two light posts and a tree

while ostensibly swerving to avoid “something.” Because of his injuries

Defendant was taken to the emergency room where his blood alcohol

content was measured at .021, well in excess of the legal limit of .008.

      Defendant has previously been charged with multiple offenses, all

or some of which appear to be alcohol-related.

      •   In 2008 he was imprisoned for convictions of riot and
          conspiracy second degree. These convictions arose from a
          gang-related incident in which a victim was shot to death.

      •   A few months after his release from prison in 2009 Defendant
          led Delaware police on a 100 m.p.h. chase on I-95 into
          Pennsylvania where he crashed his car. He was convicted of
          assorted offenses in Delaware and DUI in Pennsylvania as a
          result of this incident.

      •   In the next two years Defendant was convicted of several driving
          related offenses on four separate occasions. His convictions
          included driving without a valid license, driving across a median
          and driving while intoxicated.

      •   In 2011 Defendant was sentenced to probation by the Court of
          Common Pleas after he became unruly in a 7-Elevn and refused
          a police officer’s command to leave the store. According to the
          police report, the officer detected a strong odor of alcohol on
          Defendant’s breath.

      In his interview with a presentence investigator Defendant

described himself as a “functional alcoholic” who “doesn’t need to drink.”




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He said he drinks only “every once in a while” and that he drinks to

excess only when he is “bored.”

        The court concluded at sentencing, and reaffirms that conclusion

now, that Defendant has a serious alcohol abuse problem.         Although

defendant professed at sentencing that he now realizes that he needs

treatment, the court finds his assertions to be self-serving and insincere.

In particular, the fact that Defendant was driving while highly intoxicated

when he was out on bail awaiting trial on a felony DUI charge belies his

professed acknowledgement of his problem and his need for treatment.

The court repeats its finding that Defendant presents a serious menace

to innocent drivers and, because defendant does not appear to be

amenable to treatment at this time, the focus of his sentence must be on

protecting those innocent drivers from Defendant.


         The prosecutor did not make improper remarks at sentencing.

        Citing Santobello v. New York, 1 Defendant argues that the

prosecutor made improper comments at sentencing when he “impliedly

suggested” that the court exceed the sentence agreed upon in the plea

agreement.      The State agreed not to seek more than seven months of

Level 5 time as part of its plea agreement. Defendant contends that the

State breached this agreement by “impliedly” urging the court to

sentence him to more than seven months. Therefore, according to



1   404 U.S. 267 (1971).


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Defendant, under Santobello he has been deprived of his right to due

process.

      The court finds that the State did not breach its agreement to

recommend no more than seven months at Level 5. The prosecutor

scrupulously avoided asking for a sentence in excess of seven months.

To be sure, the prosecutor’s comments fairly placed Defendant in an

unpleasant (but realistic) light, but that was the prosecutor’s obligation

to do so. For all the prosecutor knew, the court could have sentenced

Defendant to less than seven months, and therefore he had every right to

point out factors which justified a seven month sentence. The fact that

these factors, and others not mentioned by the prosecutor, led the court

to impose a longer sentence simply does not constitute a breach of the

prosecutor’s agreement.


 The sentence did not violate Supreme Court Administrative Directive 76.

      Defendant points out that Administrative Directive 76 requires this

court to set out aggravating factors when exceeding the SENTAC

guidelines. He concedes that his conviction for felony DUI is not covered

by SENTAC and therefore Administrative Directive 76 does not apply

here. He contends, however, that the “spirit” of that Directive applies. It

is difficult to understand why the spirit of Administrative Directive 76

requires the court to list aggravating factors when it exceeds guidelines

for sentencing in a felony DUI when no such guidelines (aside from the

statutory minimum and maximum) exist. In any event, the court made it


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clear on the record why it chose not to follow the State’s recommendation

of seven months.    The fact that those reasons were not listed in the

sentencing order in this non-SENTAC case is of no significance.


      Defendant’s treatment needs do not require a shorter sentence.

      Defendant asserts that his treatment needs exceed the need for

maximum incarceration. This is little different than his argument that

his sentence is excessive. As mentioned previously, the court concluded

(and still finds) that Defendant’s amenability to treatment was so

insubstantial that the need to protect innocent drivers predominates in

the sentencing calculus.


              The use of Section 4202(k) is not inappropriate.

      The court imposed this sentence pursuant to 11 Del. C. §4204(k),

which means that Defendant is not entitled to any early release for good

time or other reasons. He contends that such sentences add complexity

to   the   management      of   the   prison   population   and,    if   used

indiscriminately,   can    substantially   increase   prison     populations.

Therefore, according to Defendant, this court must use section 4204(k)

sparingly and then only in exceptional circumstances.

      One might intuitively imagine that the absence of any opportunity

for good time makes it more difficult for correctional officers to manage a

prisoner. But the court is not aware of any data supporting this

hypothesis.   Nor is the court aware of any data showing that the



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occasional use of section 4204(k) in DUI cases has had any marked effect

on prison populations.    Nonetheless the court has traditionally been

reluctant to use section 4204(k) when imposing any sentence, and

reserves that sanction for appropriate cases, such as ones in which the

need for protection of the public is predominate. This is one such case.

   Defendant’s motion for reduction or modification of his sentence is

therefore DENIED.




Dated: June 3, 2015                              John A. Parkins, Jr.
                                                Superior Court Judge




oc: Prothonotary

cc: Zachary Rosen, Esquire, Department of Justice, Wilmington,
    Delaware
    Michael W. Modica, Esquire, Michael W. Modica Law Office,
    Wilmington, Delaware




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