Opinion
ID 2007000677
08-26-2024
STATE OF DELAWARE, v. JOSE O. PEREZ, Defendant.
Daniel B. McBride, Deputy Attorney General Jose O. Perez,
Submitted: August 6, 2024
Upon Consideration of Defendant's Motion to Correct and/or Modify Sentence DENIED
Daniel B. McBride, Deputy Attorney General Jose O. Perez,
ORDER
Francis J. Jones, Jr., Judge
This 26th day of August, upon consideration of the Motion to Correct and/or Modify Sentence by Defendant Jose O. Perez ("Perez" or "Defendant"), it appears to the Court that:
1. On April 27th, 2022, Perez was sentenced by this Court to: Racketeering - 15 years at Level V, suspended after 5 years at Level V, for 12 months Level III, concurrent to any probation now serving; Controlled substance - 10 years at Level V, suspended after 2 years at Level V, for 12 months at Level III, concurrent to any probation now serving; Controlled substance - 10 years at Level V, suspended after 2 years at Level V, for 12 months at Level III, concurrent to any probation now serving; Conspiracy second-degree - 2 years at Level V, suspended for 12 months at Level III, concurrent to any probation now serving.
Docket Item ("D.I".) 29.
2. On August 6, 2024, Perez filed this Motion to Correct and/or Modify Sentence as it relates to the April 27th, 2022 sentencing. Perez suggests that the sentence be corrected and/or modified, in the interest of justice and society, to facilitate a more structured and quasi-incarceration form of Defendant's reentry into society. Specifically, Defendant asks that the Court: (1) minimize the Defendant's risk to recidivism, and (2) allow Defendant to gain employment through work release and gradually integrate back into society.According to Defendant, this should be done by imposing a Level IV portion to his sentence. Defendant seeks to modify his sentence by substituting 1 year of his Level V time for 9 months at Level IV.
D.I. 30.
Id.
Id.
3. Under Superior Court Criminal Rule 35(a), 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. There is nothing illegal about Defendant's sentence and he does not allege any such position. Therefore, Defendant is not entitled to relief under Rule 35(a).
Del. R. Super. Ct. 35(a).
4. Under Rule 35(b), a motion for reduction or modification of sentence must be filed within 90 days of sentencing absent a showing of extraordinary circumstances. A heavy burden is placed on a defendant to establish extraordinary circumstances in order to uphold the finality of sentences.Defendant has failed to satisfy, as required under Rule 35(b), the heavy burden placed on him to establish extraordinary circumstances in order to uphold the finality of sentences. This Court is satisfied that the Court's sentence was legal, and no extraordinary circumstances exist that would result in the correction and/or modification of Defendant's sentence.
Fidalgo v. State, 2024 WL 1252118 (Del. 2024).
Id.
Defendant will likely be flowed to Level IV during the first six months at Level V, per DOC discretion.
Wherefore, Defendant Jose Perez's Motion to Correct and/or Modify Sentence is DENIED.
IT IS SO ORDERED.