State v. Morse ( 2017 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE
JUDGE l THE ClRCLE, SUITE 2
GEORGETOWN, DE 19947
TELEPHONE (302) 856-5264
August 29, 2017
Michael W. Modica, Esq.
715 King Street, Suite 300
P.O. Box 437
Wilmington, DE 19899
Melanie Withers, Esq.
Department of Justice
114 E. Market Street
Georgetown, Delaware 19947
RE: State of Delaware v. Melvin Morse,
ID No. 1208005897
DATE SUBMITTED: August 21, 2017
Dear Counsel:
Before the Court is Defendant, Melvin Morse’s (“Defendant”), Motion for Modiiication
of Sentence.l For the reasons expressed below the Motion is DENIED.
l The pertinent part of Rule 35 reads:
(b) Reduction of Sentence. The court may reduce a sentence of imprisonment on a motion made within 90
days after the sentence is imposed. This period shall not be interrupted or extended by an appeal, except
that a motion may be made within 90 days of the imposition of sentence after remand for a new trial or for
resentencing The court may decide the motion or defer decision while an appeal is pending. The court
will consider an application made more than 90 days after the imposition of sentence only in extraordinary
circumstances or pursuant to ll Del. C. § 4217. The court will not consider repetitive requests for
reduction of sentence. The court may suspend the costs or fine, or reduce the fine or term or conditions of
partial confinement or probation, at any time. A motion for reduction of sentence will be considered
without presentation, hearing or argument unless otherwise ordered by the court.
l
On April 11, 2014, Defendant was found guilty of Reckless Endangering in the First
Degree, Reckless Endangering in the Second Degree, and three counts of Endangering the
Welfare of a Child. Defendant was sentenced as follows: for Reckless Endangering in the First
Degree, five years at Level Five, suspended after three years f``or two years at Level Three; for
Reckless Endangering the in Second Degree, one year at Level Five, suspended for one year at
Level Three; and for each of`` the three counts of Endangering the Welfare of a Child, one year at
Level Five, suspended for one year at Level Three. All Level Three time was to be served
concurrently.
Defendant appealed his conviction to the Delaware Supreme Court. The Supreme Court
affirmed the conviction on August 26, 2015.
On October 13, 2015, Defendant filed his first Motion for Modification of Sentence. On
October 27, 2015, the Motion was denied due to untimeliness.
On February 7, 2017, Def``endant first filed this, his second, Motion for Modification of
Sentence. Defendant has served all of his Level Five time, but he seeks to have his remaining
Level Three time either discharged or reduced.
When considering a motion under Rule 35, the Court must first analyze whether any
applicable procedural bars apply.2 First, the motion must be made within 90 days from the date
of the sentence.3 However, when the Defendant seeks a modification to Level Three probation,
there is no timing requirement4 Therefore, this request is timely.
2 State v. Reda'en, 111 A.3d 602, 606 (Del. 2015).
3 Super. Ct. Crim. R. 35(b)(“ The court may reduce a sentence of imprisonment on a motion made within 90 days
after the sentence is imposed.”).
4 Super. Ct. Crim. R. 35(b)(“ The court may suspend the costs or fine, or reduce the fine or term or conditions of
partial confinement or probation, at any time.”); Iverson v. State, 2009 WL 2054563, at *1 (Del. July 16, 2009).
2
Second, the Court will not hear repetitive requests for a sentence modification.5 As
previously mentioned, this the Defendant’s second motion under Rule 35. Here, the fact that
Defendant is seeking discharge or reduction of his Level Three probation is irrelevant The bar
to successive Rule 35 motions applies to all types of sentence modification requests6 Thus,
Defendant’s Motion is denied on that basis However, in the alternative, the Court considers
Defendant’S substantive arguments
The purpose behind Rule 35(b) “has historically been to provide a reasonable period for
”7 When considering the sentence,
the court to consider alteration of its sentencing judgments
“the court has broad discretion to decide if it should alter its judgment The reason for such a
rule is to give a sentencing judge a second chance to consider whether the initial sentence is
appropriate”8 Here, the Court sees no reason to alter its previous sentence; the sentence is
appropriate
Defendant states that he suffers from numerous serious health conditions He has been
diagnosed with prostate cancer, Hurthle Cell thyroid cancer, and metastatic lung cancer.9
Additionally, Defendant has been treated with Interferon for Hepatitis C. Due to these health
concerns, Defendant would like for his Level Three probation time to be reduced or discharged
To date, Defendant has completed about one year of his two years on Level Three probation.
5 Super. Ct, Crim. R. 35(b)(“The court will not consider repetitive requests for reduction of sentence.”).
6 T eat v. State, 2011 WL 4839042, at *1 (Del. Oct. 12, 2011)(holding that Defendant’s second Rule 35 motion was
improperly denied for being untimely because the modification sought concerned probation, but also finding that
that the motion was properly denied for being repetitive).
7 State v. Johnson, 2015 WL 3880586, at *1 (Del. Super. Ct. June 24, 2015)(citing Johnson v. State, 234 A.2d 447,
448 (Del. 1967)(per curium)).
8 ld.
9 Defendant provided the Court with limited medical records that indicate he was diagnosed with prostate cancer on
February 5, 2014 and thyroid cancer on January 24, 2017. No additional information regarding a treatment plan or
steps forward was provided.
Defendant claims to be remorseful and acknowledges that he “terrorized, abused, and
bullied a young fragile child who had the right to feel safe and loved.”lo Furthermore, he has
completed numerous treatment and rehabilitative programs while incarcerated, such as the Key
Program, Greentree Residential Substance Abuse Rehabilitative Program, the lmpact of Crime
on Victims Seminar, and the Catholic-Charities Anger Management Program. Defendant
currently participates in mental health counseling. As a result of these efforts, Defendant claims
to be a changed man. He feels that he has been adequately punished, as he has lost his medical
license, his reputation has been destroyed, and he is reviled in the community. Defendant also
notes that he has dutifully complied with all terms of probation. Therefore, he believes that
continued supervision will not be beneficial, and that his health will suffer if required to remain
on Level Three probation.
The Court is not persuaded by Defendant’s arguments Of primary importance is the
recommendation of Defendant’s Probation Officer, Paulette Perry, that his sentence remain
unchangedll Her impression of Defendant’s health is summarized as follows: “She has seen no
documentation that reflects or confirms this defendant’s insistence that he is very ill. Mr. Morse
appears to be in very robust health to her untrained eye. He is not thin. He is not frail or weak or
in pain and does not in any way appear to be suffering from the adverse effects from any
illnesses.”12 Moreover, Probation and Parole has upgraded Defendant’s supervision level from
minimum to maximum for a number of reasons, including his dishonest representations when
making travel requests and his unsupervised visits with one of his daughters This information
runs counter to Defendant’s assertion that he has complied with all terms of his probation. In
10 Def.’s Mot. Sentence Modification, 2.
ll Letter from Melanie Withers, Esq., Delaware Department of Justice, to Judge Richard F. Stokes, Aug. 21, 2017
(on file with the Delaware Superior Court).
12
Id.light of his Probation Officer’s concerns, the Court is not persuaded to alter Defendant’s
sentence
Defendant has not made any assertions that convince the Court that the prior sentence
should be reconsidered or that some error or miscalculation was made at the time of sentencing
Additionally, the Motion is procedurally barred for being successive
Considering the foregoing, Defendant’s Motion for Modification of Sentence is
DENIED.
IT IS SO ORDERED.
Very. truly yours,
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