IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

ID No. 1706006410

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) Cr. A. Nos. IN17-06-0804, ete.
RON A. FLOWERS, )
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Defendant. )

Submitted: February 18, 2020
Decided: March 11, 2020

ORDER DENYING RON A FLOWERS’ RULE 35(b) MOTION

This 11" day of March, 2020, upon consideration of the Defendant Ron
A. Flowers’ pro se Motion for Sentence Modification (D.I. 27), his
supplement thereto (D.I. 30), the State’s response, and the record in this
matter, it appears to the Court that:

(1) On January 24, 2018, following a two-day trial, a jury convicted
the Defendant Ron A. Flowers of one count of Possession of a Firearm by a
Person Prohibited (“PFBPP”), one count of Possession of Ammunition by a
Person Prohibited (“PABPP”), and one count of Carrying a Concealed Deadly

Weapon. !

 

: Verdict Sheet, State v. Ron A. Flowers, ID No. 1706006410 (Del. Super. Ct. Jan
24, 2018) (D.I. 17); see also Flowers v. State, 195 A.3d 18, 22 (Del. 2018) (recounting the
facts of the Mr. Flowers’ crimes).
(2) Mr. Flowers was sentenced that same day to: (a) PFBPP (IN17-
06-1545) — 15 years at Level V, suspended after five years for ten years at
Level IV (Work Release), suspended after six months for two years at Level
II; (b) PABPP (IN17-06-1546) — eight years at Level V suspended in its
entirety for two years at Level III; and (c) CCDW (IN17-06-0804) — eight
years at Level V suspended in its entirety for two years at Level III? The
sentence has an effective date of June 9, 2017.3 Because of Mr. Flowers’ prior
violent felony conviction,‘ the five-year unsuspended term of imprisonment
for his PFBPP conviction (IN17-06-1545) is a minimum term of incarceration

that must be imposed and cannot be suspended or reduced.°

 

z Amended Sentencing Order, State v. Ron A. Flowers, ID No. 1706006410 (Del.
Super. Ct. Jan 24, 2018) (D.I. 17) (D.I. 21).

g Id.

= See Criminal Information, State v. Ron A. Flowers, ID No. 1212007710 (Del.
Super. Ct. Jan 14, 2013) (D.I. 2) (charging Mr. Flowers with drug dealing in heroin in
violation of 16 Del. C. § 4754(1)); Plea Agreement and Guilty Plea Form, State v. Ron A.
Flowers, ID No. 1212007710 (Del. Super. Ct. Jan 14, 2013) (D.I. 3) (Mr. Flowers pleaded
guilty to drug dealing in heroin in violation of 16 Del. C. § 4754(1)).

7 DEL. CODE ANN. tit. 11, § 1448(e)(1)(b) (2016) (“Notwithstanding any provision
of this section or Code to the contrary, any person who is a prohibited person as described
in this section and who knowingly possesses . . . or controls a firearm . . . while so
prohibited shall receive a minimum sentence of. . . [flive years at Level V, if the person
does so within 10 years of the date of conviction for any violent felony.”); id, at
§ 1448(e)(4) (“Any sentence imposed for a violation of [§ 1448(e)] shall not be subject to
suspension and no person convicted for a violation of this subsection shall be eligible for
good time, parole or probation during the period of the sentence imposed.”); id, at
§ 4201(c) (classifying drug dealing in violation of 16 Del. C. § 4754(1) as a violent felony).

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(3) Mr. Flowers docketed a timely direct appeal.® He then filed a
pro se motion under Superior Court Criminal Rule 35(b)’ requesting reduction
of the Level V term of his sentence.* The Court stayed and deferred decision
on Mr. Flower’s motion while his appeal was pending.’ And after his
conviction and sentence were affirmed,!® Mr. Flowers filed a supplemental
Rule 35(b) motion.'! The State has filed a response to Mr. Flower’s Rule 35
request.’

(4) Mr. Flowers asks for reduction of the five-years of imprisonment
imposed for his PFBPP conviction. He suggests that the Court either was not

at the time or would not now be constrained to impose the mandatory five-

 

7 See Not. of Appeal, Ron A. Flowers y. State of Delaware, No. 52, 2018 (Del. filed
Jan. 26, 2018).

7 See Super. Ct. Crim. R. 35(b) (providing that, under certain conditions, the Court

may reduce a sentence of imprisonment on an inmate’s motion); Jones v. State, 2003 WL
21210348, at *1 (Del. May 22, 2003) (“There is no separate procedure, other than that
which is provided under Superior Court Criminal Rule 35, to reduce or modify a
sentence.”).

8 Def. Rule 35(b) Mot. (D.I. 27).

° See State v. Ron A. Flowers, ID No. 1706006410 (Del. Super. Ct. Jan 24, 2018)
(D.I. 28) (order staying Mr. Flower’s Rule 35(b) motion during pendency of appeal); Super.
Ct. Crim. R. 35(b) (“The court may decide the motion or defer decision while an appeal is
pending.”).

7 Flowers v. State, 195 A.3d 18, 22 (Del. 2018).

7 D.I. 30.

RB DI. 32.
year term that it did.!? In turn, he asks for the Court reduce his sentence to
time-served.'*

(5) The Court may consider such a motion “without presentation,
hearing or argument.”!° The Court will decide his motion on the papers filed
and the complete record in Mr. Flowers’ case.

(6) When considering motions for sentence reduction or
modification, this Court addresses any applicable procedural bars before
turning to the merits.'°

(7) After 90 days have elapsed from sentencing, an inmate seeking
reduction of his term of imprisonment on his own motion must demonstrate

“extraordinary circumstances” for the granting of relief under Criminal Rule

 

ie Def. Rule 35(b) Mot.,at 2 (D.I. 27) (suggesting he is subject to only a 4-year
minimum); Def. Supp. Rule 35(b) Mot., at 2 (D.I. 30). Mr. Flowers also contests the
propriety of being convicted of both PFBPP and PABPP, but an argument about the
validity of his conviction(s) is not cognizable under Rule 35; a motion to reduce a sentence
under Rule 35 presupposes a valid conviction. See State v. Lewis, 797 A.2d 1198, 1200
(Del. 2002) (“Rule 61 addresses post-conviction relief, which requires a legal challenge to
the conviction, whereas Rule 35(b) allows a reduction of sentence, without regard to the
legality of the conviction.”); see also Poole v. United States, 250 F.2d 396, 401 (D.C. Cir.
1957).

M4 Def. Supp. Rule 35(b) Mot., at 2 (D.I. 30).
i Super. Ct. Crim. R. 35(b).

7 State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015).

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35(b).!7 This is because Rule 35(b) provides that the Court may reduce a term
of imprisonment upon application outside of 90 days of the imposition of the
sentence only in extraordinary circumstances'® or pursuant to 11 Del. C. §
4217.!° The term “extraordinary circumstances” is generally defined as “[a]
highly unusual set of facts that are not commonly associated with a particular
thing or event.””° In the Rule 35(b) context, “extraordinary circumstances”
are those which “specifically justify the delay;” are “entirely beyond a
petitioner’s control;” and “have prevented the applicant from seeking the
remedy on a timely basis.”*! And for the purposes of Rule 35(b),

“extraordinary circumstances’ have been found only ‘when an offender faces

 

7 Sample v. State, 2012 WL 193761, at *1 (Del. Jan. 23, 2012) (“Under Rule 35(b),
the Superior Court only has discretion to reduce a sentence upon motion made within 90
days of the imposition of sentence, unless ‘extraordinary circumstances’ are shown.”);
State v. Laboy, 2003 WL 21517974, at *4-5 (Del. Super. Ct. July 1, 2003) (explaining Rule
35(b)’s “90-day time bar” and the “‘extraordinary circumstances’ exception” thereto).

ie Super. Ct. Crim. R. 35(b) (“The court will consider an application [to reduce a
sentence of imprisonment] made more than 90 days after the imposition of sentence only
in extraordinary circumstances or pursuant to 11 Del. C. § 4217.”).

7 Id. See DEL. CODE ANN. tit. 11, § 4217 (2014) (permits the Department of
Correction to apply for an offender’s sentence modification); Woods v. State, 2003 WL
1857616, at *1 (Del. Apr. 8, 2003) (Department of Correction has sole discretion to file
such a petition).

“2 State v. Diaz, 2015 WL 1741768 at *2 (Del. Apr. 15, 2015) (citing Black’s Law
Dictionary (10th ed. 2014)).

a Id.; State v. Remedio, 108 A.3d 326, 332 (Del. Super. Ct. 2014).

=5e
some genuinely compelling change in circumstances that makes a
resentencing urgent.’””

(8) Mr. Flowers was sentenced on January 24, 2018. He docketed
his initial Rule 35(b) motion on May 18, 2018—114 days after his sentencing.
Mr. Flowers does not address the time-bar to consideration of his current Rule
35(b) motion. The Court must. 7

(9) To the extent Mr. Flowers suggests that there has been some
recent statutory change enacted that would prescribe an avenue to a lesser
minimum for one who is serving a previously imposed sentence for PFBPP—
a change that he has not identified and the Court cannot locate—for relief
under Rule 35(b),”“ he is incorrect. “Rule 35(b) is not now, nor ever has been,
an instrument for reexamination of previously imposed sentences in light of

subsequent statutory changes.””°

 

7 State v. Thomas, 220 A.3d 257, 262 (Del. Super. Ct. 2019) (quoting Fountain v.
State, 139 A.3d 837, 842 n.20 (Del. 2016).

23 See State v. Culp, 152 A.3d 141, 144-47 (Del. 2016) (this Court abuses its discretion
when it ignores Rule 35(b)’s bars on untimely or repetitive requests); Diaz, 2015 WL
1741768, at *2 (this Court erred granting inmate’s motion without addressing Rule 35’s
timeliness requirement and its extraordinary circumstances exception).

7 Def. Supp. Rule 35(b) Mot., at 2 (D.I. 30) (Proclaiming that “[a]s of 12/21/18 a
drug dealing charge is no longer a violent felony so therefor[e] it cannot be used to enhance
a PFBPP change, to a violent felony.”).

= Thomas, 220 A.3d at 261.
(10) Even if Mr. Flowers’ application were not procedurally barred,
it still could not be granted. Because, even when the Court has wide
discretion to reduce a sentence (i.e., upon a timely Rule 35 application”®), the
Court has no authority to reduce or suspend the mandatory portion of any
substantive statutory minimum sentence.”’

(11) As noted above, the unsuspended five years of imprisonment for
Mr. Flowers’ PFBPP conviction is a minimum term of incarceration that must
be imposed and cannot be suspended or reduced.” Mr. Flowers’ requested
reduction would plainly violate the five-year minimum required by
11 Del. C. § 1448(e)(1)(b). The Court simply cannot enter an order under
Rule 35(b) that does so.”?

NOW, THEREFORE, IT IS ORDERED that Ron A. Flowers’

motion for reduction of sentence must be DENIED.

 

26 See Hewett v. State, 2014 WL 5020251, at *1 (Del. Oct. 7, 2014) (“When ...a
motion for reduction of sentence is filed within ninety days of sentencing, the Superior
Court has broad discretion to decide whether to alter its judgment.”).

al 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).

ae See n.5, supra.

29 Sturgis, 947 A.2d at 1092.
SO ORDERED this 11‘ day of March, 2020.

J pewe

Paul R. Wallace, Judge
Original to Prothonotary
cc: ErikaR. Flaschner, Deputy Attorney General

Mr. Ron A. Flowers, pro se
Investigative Services Office
