State v. Bowen

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
)
v. ) I.D. No. 2105014420
)
ZACHERY BOWEN, )
)
Defendant. )
ORDER
Submitted: November 28, 2023
Decided: February 20, 2024
AND NOW TO WIT, this 20th day of February, 2024, upon consideration
of Zachery Bowen (“Defendant”)’s Motion for Modification of Sentence under
Superior Court Criminal Rule 35(b), the State’s response thereto, the sentence
imposed upon the Defendant, and the record in this case, it appears to the Court
that:
1. On August 31, 2021, Defendant was indicted on charges for Rape
First Degree and Sexual Abuse of a Child by a Person in a Position of Trust
Authority or Supervision in the First Degree.1 Defendant was reindicted in
September 2022.2 The nature of the offenses involves sexual acts committed by
Defendant and his co-defendant girlfriend against Defendant’s then four-year old
1
D.I. 1.
2
D.I. 13.
son. This included at least one act of rape committed at the direction of and
videotaped by Defendant, simultaneously while he engaged in sexual intercourse
with his co-defendant.3
2. On April 5, 2023, Defendant pled guilty to Rape First Degree.4 The
Truth-In-Sentencing Guilty Plea Form signed by Defendant with the assistance
of counsel confirmed that the maximum penalty that Defendant faced was life
in prison with a minimum mandatory period of incarceration of twenty-five (25)
years.5 The State agreed to cap its recommendation of incarceration to thirty (30)
years.6
3. A presentence investigation (PSI) was ordered.7 Upon review of the
PSI, on August 11, 2023, the Court sentenced Defendant to a life sentence at
Level V, suspended after forty (40) years pursuant to 11 Del. C. § 4204(k)8, for
the balance to be served at transitioning levels of Level IV and Level III
probation.9
3
Defendant was charged federally for distribution and production of child pornography.
4
Case Review: Pled Guilty, D.I. 21.
5
Id.
6
Id.
7
Id.
8
11 Del. C. 4204(k)(1) provides:
“Except as provided in this subsection, notwithstanding any statute, rule, regulation or
guideline to the contrary, the court may direct as a condition to a sentence of imprisonment
to be served at Level V or otherwise that all of a specified portion of said sentence shall be
served without benefit of any form of early release, good time, furlough, work release,
supervised custody or any other form of reduction or diminution of sentence.”
9
Sentence: Approved ASOP Order Signed and Filed, D.I. 22.
2
4. On November 8, 2023, Defendant, with the assistance of counsel, filed
this timely Motion for Modification of Sentence under Rule 35(b).10 Defendant asks
this Court to reconsider its sentence. Alternatively, he seeks to remove the “k”
portions of his sentence so that he may receive the benefit of earned good and merit
time.11
5. The basis of the request is that Defendant is already serving a federal
sentence of 262 months.12 He further asserts that his co-defendant13 received a ten-
year sentence.14
6. The State responded and noted that although the sentence exceeded the
State’s agreement to cap the Level V time, the Court articulated the reasons for its
sentence, memorialized the aggravators, and was “within its rights” to impose the
sentence it did.15 And that where Defendant executed plea paperwork with the
understanding that he was facing a life sentence such that this result was a possibility
at sentencing,16 the State takes no further position.17
7. Under Superior Court Criminal Rule 35(b), the Court may reduce a
10
D.I. 23.
11
Id. at ¶¶ 6-7.
12
Id. at ¶ 8.
13
Defendant’s co-defendant accepted a plea where she admitted that she engaged in committing
sexual acts against Defendant’s son at the direction of Defendant.
14
Id. at ¶ 9.
15
D.I. 25 at ¶¶ 2-3.
16
Id. at ¶ 3.
17
Id. at ¶ 4.
3
sentence of imprisonment on a motion made within ninety days after the sentence is
imposed.18 “Rule 35(b) allows for a reduction of sentence without regard to the
existence of a legal defect.”19 Thus, relief under Rule 35(b) is within the sound
discretion of the Sentencing Court.20 Accordingly, a timely and non-repetitive Rule
35(b) motion is “essentially a ‘plea for leniency.’”21
8. This sentence was imposed pursuant to a Plea Agreement. After an
appropriate plea colloquy, the Court addressed Defendant in open court and
determined that Defendant understood the nature of the charge to which the plea was
offered. He fully acknowledged in open court that the range of possible penalties
included no less than twenty-five years and up to a maximum of life in prison. The
Court imposed a sentence within that range. Defendant further acknowledged that
no promises were made to him about what his sentence would be, that the State’s
recommendation to cap the sentence at thirty years was only a recommendation, and
that the Court was not bound to that recommendation.22
9. To the extent that the sentence exceeded the applicable SENTAC
guidelines, the Court articulated the aggravating factors that informed such
departure: a need for correctional treatment, the vulnerability of the victim, the
18
DEL. SUPER. CT. CRIM. R. 35(b) (emphasis added).
19
State v. Lewis, 797 A.2d 1198, 1201 (Del. 2002).
20
Id.21
Id. at 1202 (quoting United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973)).
22
D.I. 21.
4
multiple roles Defendant played in orchestrating, committing, and creating
electronic images of the sexual offenses against his child, that they were committed
by a person in a position of trust, and that anything less than the period imposed
would unduly appreciate the nature of the offense of Rape First Degree.23
10. The Court further considered the victim’s family implorations that
Defendant’s sentence be lengthy for not only his conduct but to consider the resultant
damage, which remains unknown since the victim experiences nightmares, exhibits
behavioral issues, and continues to recall the events involving his father.
11. That Defendant is serving a federal sentence for similar crimes was
taken into consideration at the time of sentencing and does not now persuade this
Court to modify this sentence. Defendant is to serve his sentence without the benefit
of early release as authorized under Delaware law.
12. Defendant’s Motion for Modification of Sentence is DENIED.
/s/ Vivian L. Medinilla
Vivian L. Medinilla
Judge
oc: Prothonotary
cc: Defendant
Erika B. LaCon, Esquire
Nicholas R. Wynn, Deputy Attorney General
Investigative Services Office
23
See Sentencing Order, D.I. 22.
5