State v. Steadman ( 2018 )


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  • IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    STATE OF DELAWARE )
    )
    )
    v. ) Case ID Nos.: 1704012772
    ) 1705002012
    )
    GARY STEADMAN )
    )
    Defendant. )
    ORDER
    AND NOW TO WIT, this 14th day of December, 2018, upon consideration
    of Defendant Gary Steadman (“Defendant”)’s Motion for Modification/Amendment
    of Sentence under Superior Court Criminal Rule 35, the sentence imposed upon
    Defendant and the record in this case, it appears to the Court:
    l. On January 5, 2018, Defendant pled guilty to three felonies for drug
    dealing. Speciflcally, he accepted a plea to two counts of Drug Dealing Tier 4
    Heroin and one count of Drug Dealing Tier 2 Heroin. The three counts of Drug
    Dealing relate to separate offenses that took place on separate occasions, alleged to
    have occurred on March 4, 2017 (Tier 2), March 23, 2017 (Tier 4), and May 2, 2017
    (Tier 4).
    2. On May 25, 2018, on each count of Drug Dealing Tier 4, Defendant
    Was sentenced to 25 years, suspended after the minimum mandatory of two years,
    followed by various levels of probation. As to Drug Dealing Tier 2, Defendant was
    sentenced to 15 years at Level V, suspended after one year, also followed by
    probation. The Level V sentences are ordered to run consecutively for a total
    unsuspended five years of incarceration
    3. Defendant files the present motion under Superior Court Criminal Rule
    35(b) requesting reduction of his Level V term, and seeks to have his sentences run
    concurrently under ll Del. C. § 3901(d).l Defendant argues reduction is warranted
    because he: (l) has remorse for his actions; (2) has “employment” opportunities with
    his CDL (commercial driver’s license) and a strong work history; (3) had
    “ineffective counsel” raising issues related to an investigation by the Delaware Bar
    Association regarding his defense counsel; and (4) claims he was improperly re-
    indicted and sentenced twice for the same crime such that the State failed to merge
    his charges under 16 Del C. § 4766.2
    4. The Court first examines Defendant’s fourth ground for relief under
    Rule 35(a) regarding his claim that he was illegally sentenced. Under Rule 35(a),
    the Court “may correct an illegal sentence at any time.”3 Rule 35(a) applies in
    limited situations where the sentence imposed: exceeds its statutorily-authorized
    limits, violates double jeopardy, “is ambiguous with respect to the time and manner
    l Def.’s Mot. at 2.
    2 ld.
    3 DEL. SUPER. CT. CRIM. R. 35(a). Defendant’s Motion was filed on August lO, 2018.
    in which it is to be served, is internally contradictory, omits a term required to be
    imposed by statute, is uncertain as to the substance of the sentence, or is a sentence
    which the judgment of conviction did not authorize.”4 Under Rule 35(a), the
    “narrow function” is to correct illegal sentences, “not to re-examine errors occurring
    at the trial or other proceedings prior to the imposition of sentence.”5
    5. The record is clear that Defendant was not illegally sentenced. The
    State confirmed that Defendant was not re-indicted, but rather indicted once on July
    24, 2017.6 As charged in the indictment, the first count of Drug Dealing Tier 4
    alleged that the offense occurred on March 23, 2017, and the second on May 2,
    2017.7 Thus, the sentences do not implicate double jeopardy as Defendant was
    indicted on, pled to, and sentenced on two separate and distinct counts of Drug
    Dealing that occurred on separate dates, not required to be merged under 
    16 Del. C
    .
    § 4766. Thus, Defendant does not establish a claim for relief under rule 35(a) where
    his sentence does not exceed a statutory maximum, is neither ambiguous nor
    contradictory, and does not violate double jeopardy.
    4 Brittingham v. State, 
    705 A.2d 577
    , 578 (Del. 1998) (citations omitted). See, e.g., Ellerbe v.
    State, 
    155 A.3d 1283
    , 
    2017 WL 462144
    , at *1 (Del. Feb. 2, 2017) (TABLE).
    5 
    Brittingham, 705 A.2d at 578
    (quoting Hill v. Um``l‘ed States, 
    368 U.S. 424
    , 430 (1962)).
    6 State’s Resp. 11 10.
    7 D.I. #3 (July 24, 2017) (IN17-05-0628 or Count VII and INl7-05-1391 or Count XII).
    6. Defendant’s third ground for relief under Rule 35(a) claims ineffective
    assistance of counsel. This ground is not cognizable under Rule 35(a) because it
    falls outside the limited scope and purpose of Rule 35.8 An ineffective assistance of
    counsel claim may be brought under Rule 61 as a post-conviction motion but will
    not be considered as a basis for modification/reduction of sentence under Rule 35.9
    7. Lastly, Defendant claims remorse and employment opportunities are
    sufficient reasons why this Court Should modify his Level V time to run concurrently
    rather than consecutively, as ordered. Under Rule 35(b), the Court “may reduce a
    sentence of imprisonment on a motion made within 90 days after the sentence is
    imposed.”'O Under Rule 35(b), a sentence may be reduced, “without regard to the
    alter its judgment[]” when a Rule 35(b) motion is timely filed within ninety days.ll
    The purpose for this rule “is to give a sentencing judge a Second chance to consider
    whether the initial sentence is appropriate.”12
    8 Cochran v. State, 
    935 A.2d 255
    , 
    2007 WL 2812870
    , at *2 (Del. Sept. 28, 2007) (TABLE)
    (citing Brittingham, 
    705 A.2d 578
    ). See also Glenn v. State, 
    829 A.2d 936
    , 
    2003 WL 21714083
    ,
    at *1 (Del. July 21, 2003) (TABLE) (citations omitted).
    9 Cochran, 
    2007 WL 2812870
    , at *2. (holding that Superior Court properly denied ineffective
    assistance of counsel claim brought under Rule 35(a)).
    ‘° DEL SUPER. CT. CRIM. R. 35(b).
    ll State v. Johnson, 
    2015 WL 3880586
    , *1 (Del. Super. June 24, 2015) (citing Hewett v. State,
    2014 WL 502()25l, at *l (Del. OCt. 7, 2014)).
    12 State v. Bradley, 
    2015 WL 3863243
    , at *2 (Del. Super. June 22, 2015) (quoting State v.
    Remedio, 
    108 A.3d 326
    , 331 (Del. Super. Dec. 31, 2014)).
    8. Here, Defendant timely filed his Motion so it is not procedurally barred
    by the ninety-day rule.13 Also, he is correct that 
    11 Del. C
    . § 3901(d)14 now allows
    the imposition of some offenses that carry minimum mandatory incarceration to be
    served concurrently. Nevertheless, Defendant’s remaining grounds for this relief are
    without merit.
    9. This sentence was imposed pursuant to a Plea Agreement between
    Defendant and the State.15 Defendant acknowledged in his Truth-In-Sentencing
    Guilty Plea Form that the total consecutive maximum penalty he faced was sixty-
    five years of incarceration; two to twenty-five for each Drug Dealing Tier 4 and up
    to fifteen years for Drug Dealing Tier 2. The record establishes that he understood
    that he was pleading to two separate counts of Drug Dealing Tier 4, which carried a
    minimum mandatory incarceration period of two years for each, and the plea
    agreement signed by Defendant expressly states that the incarceration periods would
    be served consecutively. As a result of the plea agreement, Defendant also obtained
    the benefit that the State dismissed his then pending fourteen charges. Although
    13 Defendant’s Rule 35 motion was filed by the Prothonotary on August 10, 2018, which is
    within 90 days of his May 25 , 2018 sentencing
    14
    11 Del. C
    . §3901(d)(2014).
    15 DEL. SUPER. CT. CRIM. R. ll(e).
    there may have been some issue related to one pending matter, the Court has
    confirmed that there are no pending matters
    10. Remorse and employment prospects are not sufficient bases for relief
    under Rule 35(b). And although 
    11 Del. C
    . § 3901(d) now gives the Court the
    discretion to impose Defendant’s sentences to be served concurrently, no
    information was provided to the Court that would warrant a modification of
    Defendant’s sentence at this time. Defendant’s sentence is appropriate for the
    reasons stated above and at the time of sentencing
    For the foregoing reasons, Defendant’s Motion for Modification of his
    Sentence is DENIED.
    /"
    ViviM/Medim
    Judge
    oc: Prothonoatry
    cc: Defendant
    Joseph Benson, Esquire
    Amanda Diliberto, Deputy Attorney General
    Office of Investigative Services
    

Document Info

Docket Number: 1704012772 & 1705002012

Judges: Medinilla J.

Filed Date: 12/14/2018

Precedential Status: Precedential

Modified Date: 12/14/2018