State of Delaware v. Priest.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
)
STATE OF DELAWARE )
) I.D. No. 1204019391
v. ) 1205020519
)
KEVIN L. PRIEST )
)
Defendant )
Submitted: August 1, 2014
Decided: October 6, 2014
On Defendant’s Motion to Have Concurrent Sentence of Imprisonment
Imposed.
DENIED.
ORDER
Matthew B. Frawley, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State
Kevin L. Priest, Smyrna, Delaware, pro se
COOCH, R.J.
This 6th day of October, 2014, upon consideration of Defendant’s
Motion to Have Concurrent Sentence of Imprisonment Imposed, it appears
to the Court that:
1. Defendant Kevin L. Priest pled guilty to two counts of drug
dealing in July 2012. In September 2012, Defendant was
sentenced as a habitual offender to a total of 9 years at Level V,
suspended after 5 years for eighteen months at Level IV,
suspended after six months with the balance to be served on
Level III probation.1
2. Defendant filed a Motion for Correction of Sentence in
November 2013, requesting that this allow him to serve a
portion of his sentence on work release after completion of a
treatment program. 2 That motion was subsequently denied by
this Court.3
3. Defendant filed the instant “Motion of a Formal Letter,” on
August 1, 2014. In his filing, Defendant requests, pursuant to
the amendments to 11 Del. C. 3901, that this Court amend his
sentence and allow his two sentences to run concurrently, rather
than consecutively. 4
4. As amended, Section 3901(d) provides in part: “The court shall
direct whether the sentence of confinement of any criminal
defendant by any court of this State shall be made to run
concurrently or consecutively with any other sentence of
confinement imposed on such criminal defendant.” 5
5. Delaware case law is well settled on this point, and provides
that “a law will not be construed as retroactive unless the Act
clearly, by express language or necessary implication, indicates
that the legislature intended a retroactive application.” 6
1
See Docket #16 (Sept. 21, 2012). On the first count, Defendant was sentenced to three
years at Level V with credit for eighty-eight days served. On the second count, Defendant
was sentenced to six years at Level V, suspended after two years for eighteen months at
level V, suspended after six months for the balance to be served on Level III probation.
2
See Def.’s Motion for Correction of Sentence at 1.
3
See Docket #18 (Nov. 13, 2013); Docket #19 (Nov. 18, 2013).
4
Def.’s Motion at 1. H.B. 312, the source of the authority that Defendant argues gives
this court the ability to revise his sentences, amends 11 Del. C. 3901 in part.
5
11 Del. C. § 3901(d).
6
State v. Ismaaeel, 840 A.2d 644 (Del. Super. 2004) (quoting State v. Nixon, 46 A.2d
874, 875 (Del. Gen. Sess. 1946)) (internal quotation marks omitted).
2
6. This Court finds that Section 3901(d), as amended does not
have retroactive effect. 7 As a result, Defendant’s September
2012 sentences on the two counts of drug dealing to which he
pled guilty cannot be revisited under 3901(d).
Therefore, Defendant’s Motion to Have Concurrent Sentence of
Imprisonment Imposed is DENIED.
IT IS SO ORDERED.
_______________________
Richard R. Cooch, R.J.
cc: Prothonotary
Investigative Services
Matthew B. Frawley, Esquire
Kevin L. Priest
7
See State v. Jennings, 2014 WL 3943089, at *1 (Del. Super. Aug. 11, 2014) (finding
“Section 3901(d), as amended, was not intended by the Delaware General Assembly to
have a retroactive effect.”).
3