Opinion
I.D. No. 1110018073 I.D. No. 1110013616
06-29-2020
STATE OF DELAWARE v. TONY L. CLARK, Defendant.
ORDER
AND NOW TO WIT, this 29th day of June 2020, upon consideration of Defendant Tony Clark's ("Defendant") Motion for Modification of Sentence, the State's Response, the sentence imposed upon Defendant, and the record in this case, it appears to the Court:
State's Response to Defendant's Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 29 (Del. Super. Ct. June 23, 2020) [hereinafter "State's Resp."].
1. On June 8, 2012, Defendant was sentenced for Robbery First Degree, Possession of a Deadly Weapon during the Commission of a Felony, and Theft. Defendant received fifteen years at Level V, suspended after six years at Level V Key, for transitioning levels of supervision between Level IV Crest and Level III Crest Aftercare. For the Firearm charge, Defendant received a consecutive sentence of four years at Level V. For the Theft charge, Defendant received one year at Level V, suspended for one year at Level III. In sum, he received eleven years of incarceration followed by transitioning levels of probation.
Case Review Calendar Pled Guilty PSI Ordered/ Sentencing: 05/11/2012, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 7 (Del. Super. Ct. Feb. 13, 2012).
Sentence: Corrected ASOP Order, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 10 (Del. Super. Ct. July 12, 2012) [hereinafter "Sentence Order"].
Id.
Id.
2. On April 20, 2020, Defendant filed this, his sixth, Motion for Modification of Sentence under Rule 35(b). In his motion, Defendant asks this Court to modify his remaining four months at Level V to one year at Level IV Home Confinement, held at Level III until space at Level IV is available, followed by two years at Level III.
Defendant's Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 28 (Del. Super. Ct. Apr. 23, 2020) [hereinafter "Def.'s Mot."]; see DEL. SUPER. CT. CRIM. R. 35(b).
Def.'s Mot.
3. In support of his Motion, Defendant states the following grounds for relief: (1) "extraordinary circumstance" - citing the COVID-19 pandemic; (2) Defendant contends that his underlying condition of asthma makes him a high risk inmate; (3) at the time of filing this motion, Defendant only had four months remaining on his ten year Level V sentence, and had completed all mandatory minimum portions of his sentencing; and (4) Defendant again asserts concern for his safety in relation to COVID-19 where seven officers and twelve inmates have tested positive for COVID-19 at James T. Vaughn Correctional Center.
Id. at 2.
4. Under Superior Court Criminal Rule 35(b), the Court may reduce a sentence of imprisonment on a motion made within ninety days after the sentence is imposed. Defendant is time-barred. In order to overcome the ninety-day time bar in Rule 35(b), Defendant must show that "extraordinary circumstances" forgive the tardiness of his Motion. This exception is not a plea for leniency nor does it permit "exceptional rehabilitation" to suffice for "extraordinary circumstances." This Court does not find that Defendant has raised any "extraordinary circumstances" to overcome this bar. The Court agrees with the State's position that Defendant has not established a basis for relief where DOC has implemented appropriate protocol to address his concerns.
DEL. SUPER. CT. CRIM. R. 35(b).
The Delaware Supreme Court has defined "extraordinary circumstances" as circumstances 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.'" State v. Diaz, 113 A.3d 1081, 2015 WL 1741768, at *2 (Del. 2015) (TABLE) (quoting State v. Lewis, 797 A.2d 1198, 1203, 1205 (Del. 2002) (Steele, C.J., dissenting)).
See Colon v. State, 900 A.2d 635, 638 (Del. 2006).
See Morrison v. State, 846 A.2d 238, 2004 WL 716773, at *1-2 (Del. Mar. 24, 2004) (TABLE).
5. Furthermore, Superior Court Criminal Rule 35(b) also provides that "[t]he court will not consider repetitive requests for reduction of sentence." A motion is considered repetitive when it "is preceded by an earlier Rule 35(b) motion, even if the subsequent motion raises new arguments." The bar to repetitive motions has no exception. It is absolute and flatly "prohibits repetitive requests for reduction of sentence." The repetitive motion bar is applicable even when the request is for reduction or modification of a term of partial confinement or probation. Therefore, where Defendant has previously submitted five other Motions for Modification, and where such motions were previously denied, this motion is also barred as repetitive. The Court cannot use its discretion to ignore this bar.
Id. (emphasis added).
State v. Culp, 152 A.3d 141, 144 (Del. 2016).
Thomas v. State, 812 A.2d 900, 2002 WL 31681804, at *1 (Del. 2002) (TABLE). See also Jenkins v. State, 954 A.2d 910, 2008 WL 2721536, at *1 (Del. 2008) (TABLE) (affirming the Superior Court's denial of defendant's Rule 35(b) motion for modification where Rule 35(b) "prohibits the filing of repetitive sentence reduction motions."); Morrison v. State, 846 A.2d 238, 2004 WL 716773, at *2 (Del. 2004) (TABLE) (finding that defendant's Rule 35(b) motion for modification "was repetitive, which also precluded its consideration by the Superior Court.").
See Teat v. State, 31 A.3d 77, 2011 WL 4839042, at *1 (Del. 2011) (TABLE); see also State v. Weidlow, 2015 WL 1142583, at *1-2 (Del. Super. Ct. Mar. 11, 2015); see also State v. Bennett, 2015 WL 1746239, at *2 (Del. Super. Ct. Apr. 13, 2015).
Defendant has filed five previous Motions for Modification under Rule 35(b) and two Motions for Reconsideration. Defendant's Motion for Modification of Sentence, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 11 (Del. Super. Ct. Aug. 27, 2012); Defendant's Motion for Modification (Correction) of Sentence, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 12 (Del. Super. Ct. Apr. 10, 2014); Defendant's Letter Requesting Reconsideration of Modification (Correction) of Sentence, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 15 (Del. Super. Ct. June 3, 2014); Defendant's Motion for Modification of Sentence, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 17 (Del. Super. Ct. Mar. 2, 2017); Defendant's Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 22 (Del. Super. Ct. Aug. 26, 2019); Defendant's Letter Requesting Reconsideration of Modification of Sentence, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 25 (Del. Super. Ct. Dec. 11, 2019); Defendant's Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 26 (Del. Super. Ct. Mar. 6, 2020).
Order Denying Defendant's Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 12 (Del. Super. Ct. Sept. 21, 2012); Order Denying Defendant's Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 14 (Del. Super. Ct. May 20, 2014); Order Denying Defendant's Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 16 (Del. Super. Ct. July 3, 2014); Order Denying Defendant's Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 18 (Del. Super. Ct. Mar. 20, 2017); Order Denying Defendant's Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 24 (Del. Super. Ct. Nov. 5, 2019); Order Denying Defendant's Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 27 (Del. Super. Ct. Mar. 19, 2020) (denying Defendant's Motion for Modification, but updating his sentence to reflect a Level IV DOC placement).
State v. Culp, 152 A.3d 141, 145 (Del. 2016) (reversing the Superior Court's decision to grant defendant's Motion for Modification where the motion was repetitive and untimely).
6. Moreover, this Court accepted that Defendant's previous request called for a modification Level IV placement at DOC DISCRETION and has continued to modify, where appropriate. At this time, Defendant's sentence remains appropriate for all the reasons stated at the time of sentencing.
Order Denying Defendant's Motion for Modification, State of Delaware v. Tony L. Clark, Crim. ID No. 1110018073, D.I. 27 (Del. Super. Ct. Mar. 19, 2020) (denying Defendant's Motion for Modification, but updating his sentence to reflect a Level IV DOC placement).
IT IS SO ORDERED that Defendant's Motion for Modification of Sentence is DENIED.
/s/ Vivian L. Medinilla
Vivian L. Medinilla
Judge oc: Prothonotary
cc: Defendant
Department of Justice
Investigative Services