State v. Thomas, 1801004954

CourtSuperior Court of Delaware
Docket Number1801004954
Decision Date14 November 2022


RUSSEL R. THOMAS, Defendant.

No. 1801004954

Superior Court of Delaware

November 14, 2022

Submitted: September 15, 2022

ORDER Defendant's Motion to Modify Sentence - DENIED

On this 14th day of November 2022, after considering Defendant Russel R. Thomas' motion for modification of sentence filed with the assistance of counsel, and the State's response in opposition, it appears that:

1. On September 17, 2018, Mr. Thomas pled guilty to Possession of a Firearm During Commission of a Felony, 11 Del. C. § 1447A, Tier 4 Drug Dealing, 16 Del. C. § 4752, and Resisting Arrest, 11 Del. C. § 1257.[1] The Court sentenced him to six years of incarceration, followed by six months of home confinement or work release, followed by one year of community supervision.[2] The Court included the following provision in his sentencing order:

[the] Court will entertain a review of sentence if requested by the defendant before or near to his release date. In the review, [i]f requested, the [C]ourt will review the defendant['s] prison record and documentation regarding availability of [a] residence [for him] in Texas. If defendant otherwise meets the requirements to transfer probation to another state, the Court may suspend [his] Level 4 time to Level 3 and remove TASC monitoring.[3]

2. Mr. Thomas' good time release date is May 22, 2023. In his Superior Court Criminal Rule 35(b) motion, he asks the Court to immediately suspend the balance of his term of incarceration and place him on home confinement. He asks the Court to do so because he alleges (1) he is neither violent nor criminally minded; (2) he participated in and completed the Road to Recovery, Lifeskills, and Thresholds programs while incarcerated; (3) he has work available upon his release; and (4) he has an expected residence in Frederica, Delaware.[4]

3. The State counters that Mr. Thomas has not shown good cause for a sentence modification.[5] Specifically, the State contends that his extensive pre-offense criminal record coupled with a new conviction for Conspiracy Second Degree demonstrates that he is not rehabilitated.[6]

4. Generally, Superior Court Criminal Rule 35(b) prescribes the circumstances that can justify the Court's modification of a term of imprisonment. Namely, the Rule provides the Court broad discretion to reduce a prison sentence when a defendant requests the modification within ninety days of sentencing.[7] After the ninety-day period, however, the Rule permits the Court to modify the length of


a defendant's incarceration only (1) in extraordinary circumstances or (2) pursuant to a Department of Correction application filed pursuant to 11 Del. C. § 4217.[8]

5. At the outset, Mr. Thomas' motion does not meet Rule 35(b)'s time criteria because he filed it greater than ninety days after the Court sentenced him. Given the untimely filing, the question turns to whether he has identified extraordinary circumstances that excuse his untimeliness. Here, he does not because his success in prison programs and other rehabilitative efforts do not qualify.[9]Simply put, Rule 35(b) is an improper mechanism to modify a sentence based upon rehabilitative efforts.[10] Nor does the Rule provide the proper mechanism to modify his sentence because of his recent marriage or representation that he will have stable housing upon release. As a result, Mr. Thomas' motion under Rule 35(b) is procedurally barred because (1) it is time barred, (2) his circumstances are non-extraordinary; and (3) the Department of Correction has not filed an application under 11 Del. C. §...

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