State v. Ammermon ( 2021 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
PAUL R. WALLACE NEW CASTLE COUNTY COURTHOUSE
JUDGE 500 N. KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801
(302) 255-0660
Date Submitted: November 12, 2021
Date Decided: December 1, 2021
Bryan P. Ammermon
SBI No. 728387
Howard R. Young Correctional Institution
1301 East 12th Street
Wilmington, DE 19809
RE: State v. Bryan P. Ammermon
I.D. Nos. 2101008779 and 2105012455
Motion to Reduce or Modify Sentence
Dear Mr. Ammermon:
The Court is in receipt of your recent request to reduce or modify your sentence
(D.I. 9; D.I. 7).
At a case review hearing held September 28, 2021, you pleaded guilty to two
separate counts of felony Driving Under the Influence-Fourth Offense.1 You were then
sentenced to serve: for DUI-Felony (N21-05-1209)—Two years at Level V suspended
after six months at Level V for one year of Level III-TASC probation; and for for DUI-
Felony (N21-05-1209)—Two years at Level V suspended after six months at Level V
for one year of Level III-TASC probation. The Court’s order provides that your
sentence is effective May 24, 2021, that your terms of confinement are to run
consecutively, and that certain other conditions are applicable to your terms of
incarceration and probation.2
1
Plea Agreement and TIS Guilty Plea Form, State v. Bryan P. Ammermon, ID Nos. 2101008779
and 2105012455 (Del. Super. Ct. Sept. 28, 2021) (D.I. 6; D.I. 5).
2
D.I. 7; D.I. 6.
State v. Bryan P. Ammermon
I.D. Nos. 2101008779 and 2105012455
November 30, 2021
Page 2 of 3
You have now docketed a request under Rule 35(b) requesting modification of
your Level V term; you ask that that the Court reduce your sentence by applying
“additional good-time credit of 10 days per month for voluntary participation in the 6
for 1 program during pre-trial incarceration.”3
“When addressing a sentence modification request, the Court first identifies the
specific procedural mechanism the inmate attempts to invoke; it must then determine
whether that mechanism is available under the circumstances.”4 The purpose of
Superior Court Criminal Rule 35(b) historically has been to provide a reasonable period
for the Court to consider alteration of its sentencing judgments.5
But the relief you seek is not available under this Court’s Rule 35(b). Because
good time is not applied by the Court to modify its sentencing order and judicially
reduce a Level V term it previously ordered. Rather, “in Delaware, good time is an
administrative device that provides for an inmate’s early release from a term of
imprisonment” ordered by the Court.6 And that device is administered by the
3
Def.’s Rule 35(b) Mot., at 2.
4
State v. Tollis, 126 A.3d 1117, 1119 (Del. Super. Ct. 2016). See e.g., State v. Culp, 152 A.3d
141 (Del. 2016) (Delaware Supreme Court examines the several sources of authority a trial court
might have—but that were then inapplicable or unavailable—when the trial court reduced
sentence); see also State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015) (When considering
requests for sentence modification, “this Court addresses any applicable procedural bars before
turning to the merits.”).
5
See Johnson v. State, 234 A.2d 447, 448 (Del. 1967) (per curiam); see also State v. Remedio,
108 A.3d 326, 331 (Del. Super. Ct. 2014) (internal citations and quotations omitted) (“The reason
for such a rule is to give a sentencing judge a second chance to consider whether the initial sentence
is appropriate” and such a timely Rule 35(b) request is essentially a plea for leniency—an appeal
to the sentencing court to reconsider and show mercy).
6
Young v. State, 2009 WL 3286026, at *1 (Del. Oct. 13, 2009); Douglas v. State, 2010 WL
3262724, at *1 (Del. Aug. 18, 2010).
State v. Bryan P. Ammermon
I.D. Nos. 2101008779 and 2105012455
November 30, 2021
Page 3 of 3
Department of Correction, not the Court.7 You must allow the Department the
opportunity to carry out that function in the first instance, because your claim in essence
relates to the Department’s method of applying good time credits to your sentence.
There is nothing at present to say that the Department has or will not properly discharge
its statutory duties related to the award and calculation of any applicable good time in
your case. If it does not, the Delaware Supreme Court has consistently held that a writ
of mandamus is the proper procedural vehicle to challenge the Department’s calculation
or application of good time credit to a sentence.8
Accordingly, the Court must DENY your request under Rule 35(b) to reduce or
modify your sentence.
IT IS SO ORDERED.
Paul R. Wallace, Judge
Original to Prothonotary
cc: Isaac A. Rank, Deputy Attorney General
Gregory E. Smith, Deputy Attorney General
Lacy E. Holly, III, Esquire
Investigative Services Office
7
See generally Snyder v. Andrews, 708 A.2d 237 (Del. 1998) (describing the good time system
and procedures).
8
Walls v. State, 2010 WL 5393996, at *1 (Del. Dec. 28, 2010) (“We have held that a writ of
mandamus filed in the Superior Court (and not a motion under Rule 35(a) is the proper procedural
vehicle to challenge the Department of Correction’s calculation or application of good time
credit.”); Bruno v. State, 2010 WL 1227049, at *1 (Del. Mar. 30, 2010); Young, 2009 WL
3286026, at *1 n.6 (listing cases).