IN THE SUPERIOR COUR T OF THE STATE OF DE LAWARE
IN AND FOR NEW CASTL E COUNTY

STATE OF DELAWARE, ) ) )

v. ) ID. Nos. 1101020888 &1102008321 ) ) DARRELL T. REDDEN )

Submitted: December 9 , 2014

Decided: February 1 6 , 2015

OPINION

U

pon Defendant, Darrell T. Redden ’s
, Motion for Sentence Reduction or Modification, DENIED

.

Joseph S. Grubb, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, for the State of Delaware.
Michael W. Modica, Esquire, Wilmington, Delaware, for Defendant Darrell T. Redden.

WALLACE, J.- 2

- I. I NTRODUCTION

Before th e Court is Defendant
, Darrell T. Redden ’s
, motion for sentence

reduction and modification. Redden was sentence d on June 6, 2011 and now , for

the second time, asks the Court to reduce the length of his imprisonment. He also,

for the first time, seeks modification of his term of partial confinement

. Because
Redden’s application to reduce his s entence of imprisonment is procedurally

barred, it must be DENIED

. And after review of the merits of his lone viable

claim, the Court
, exercis ing its discretion under Rule 35(b)
, DEN IES Redden ’s

request for modification of the conditions of his term of partial confinement.

II. F ACTUAL AND P ROCEDURAL B ACKGROUND 1

In late January 2011, Darrell T. Redden ’s car was stopped by the police for
traffic violations. Redden gave the police officer a false name (his br other’s) , and

was detained while the officer tried to confirm his actual identity

. When searched,

Redden was found to have $2,500 cash on him and a digital scale in his boot.
Though no actual drugs were found therein, a drug

- sniffing dog “hit” on Redden’ s

car. Re dden was arrested and made bail.

1 The facts of Redden’s offenses are drawn from his own prior postconviction motion. See Memorandum in Support of Post

- conviction Relief Motion, State v. Darrell T. Redden , ID No. 11020008321 (Del. Super. Ct. June 15, 2012) (D.I. 23). The procedural history is derived from the Court’s thorough review of the parties’ filings in the instant sentence reduction proceeding, the Court’s files, and the complete sentencing record relating to the three cases involved.- 3

- Law enforcement meanwhile continued in vestigating Redden, suspecting
that he was engaged in illegal drug sales

. A baggie with c ocaine residue was

discovered during a “trash pull” of discarded garbage at Redden’s home

. A later
search of his residence yielded a loaded semi

- automatic handgun. Redden, a
person prohibited due to previous felony convictions, was arrested for the illegal
possession of this weapon. At the time, he had pending drug charges and was
pending a hearing for violating the terms of probated sentences previously imposed

in other matters

.
Redden pleaded guilty on June 6, 2011 to Possession of Ammunition by a
Person Prohibited and Maintaining a Vehicle for Keeping a Controlled Substance

.
He was sentenced that same day to serve: Possession of Ammunition by a Person

Prohibited

– eight years at Level V suspended after serving three years for five
years at Level IV (Home Confinement or Halfway House) suspended after serving

six mo nths at Level IV for 18 months of Level III; and Maintaining a Vehicle

– three years at Level V suspended for 18 months of Level III

. 2

2 See Plea Agreement and TIS Guilty Plea Form, State v. Darrell T. Redden , ID Nos. 1102008321 & 1101020888 (Del. Super. Ct. June 6, 2011). By this time, Redden had been before the Court for a contested hearing f or violating conditions of his probated sentences (“VOP”) arising from earlier drug delivery and felony assault convictions. He was found in violation due, in part, to his new criminal conduct and was sentenced to serve four years of imprisonment followed by probation. See VOP Sentencing Order, State v. Darrell Redden , ID Nos. 0807046644 & 0705019473 (Del. Super. Ct. March 23, 2011). The existence of the VOP sentence is cited as a basis for reduction of the subject sentence, but the VOP sentence itself is not contested in this proceeding. Nor is Redden’s sentence for the maintaining a vehicle charge.- 4

- On April 13, 2012, Redden docketed his first motion under Superior Court
Criminal Rule 35(b) requesting reduction of this Level V term. This relief was
appropriate, he urged , because: (1) he was “misguided” and “wrongly informed”
by his counsel; (2) his sentence exc eeded SENTAC guidelines; and (3) given the
guidelines and his VOP sentence, his sentence was “a bit harsh”

– he “was
sentenced too severely.” 3 The Court considered R ed den ’s application under the
provisions of Criminal Rule 35(b)
, 4 Redden’s “presentence report/prior re cord, and

the se ntence imposed upon [him] .” 5 The Court denied Redden’s motion because:

(1) it “ was filed more than 90 d ays after the imposition of [ his ] sentence and [ wa ] s,
therefore, time

- barred ”; (2) the Court “d[id] not find the existence of any
extraordinary circumstances” to overcome the 90

- day time limitation ; and (3) the
Court found the sentence “is appropriate for all the reasons stated at the time of
sentencing” and there was “[n]o additional information . . . provided to the Court . .

. war rant[ing] a reduction or modification of this sentence.” 6

3 D.I. 19.

4 Jones v. State , 2003 WL 21210348, at *1 (Del. May 22, 2003) (“There is no separate procedure, other than that which is provided under Super ior Court Criminal Rule 35, to reduce or modify a sentence.”).

5 State v. Darrell T. Redden , ID No. 1102008321 (Del. Super. Ct. May 14, 2012) (ORDER) (denying first Rule 35(b) motion) (D.I. 20).

6 Id.- 5

- On August 4, 201 4

— over three year s after his sentence was imposed

—

Redden filed this second Rule 35(b) motion for sentence reduction or modification

. This time through counsel, Redden seeks a suspension or reduction of the L evel V
portion of his sentence, or, alternatively, a suspension of a portion of his sentence

for completi o n of the Level V Key program. He also requests the Level IV portion
of his sentence be designated home confinement. 7

III. D ISCUSSION
When considering a motion for sentence reduction under Rule 35(b) , th is

Court addresses any applicable procedural bars before turning to the merits. 8 This
policy protects the integrity of the Court’s rules and the finality of its sentencing
judgments. 9 While “[a] ddressing the merits of a case that does not meet
procedural requirements effectively renders our procedural rules meaningless. ” 10

So when th e Court does decide Rule 35’s procedural requirements are met or a
procedural bar is either applicable or is overcome , it should do so with

7 Def.’s Mot. to Modify Sent., at 1

- 2, 5; Def. ’s Supp. Ltr. of Dec. 9, 2014, at 1 (D.I. 39).

8 State v. Reed , 2014 WL 7148921, at *3 (Del. Super. Ct. Dec. 16, 2014).

9 See State v. Johnson
, 2006 WL 3872849, at *3 (Del. Super. Ct. Dec. 7, 2006) ( purpose and structure of sentence reduction rules “is to uphold the finality of sentences”). See also ABA S TANDARDS FOR C RIMINAL J USTICE : S ENTENCING §18

- 7.1 (3d ed. 1994) (“The rules of procedure should authorize a sentencing court, upon motion . . . to reduce the severity of any sentence. The rules should restrict the time for reduction in severity of a sentence to a specified period after imposition of a sentence.”).

10 Reed , 2014 WL 7148921, at *3.- 6

- “particularity sufficient to discharge [ the judge ’ s ] ‘duty to make a record to show

what factors [were] considered and the reasons for [the] decision.’” 11

The provisions of this Court’s Criminal Rule 35(b) pertinent to Redden’s

motion state:
Reduction of sentence. The court may reduce a sentence of imprisonm ent on a motion made within 90 days after the sentence is imposed.

. . . The court will consider an application made more than 90 days after the imposition of sentence only in extraordinary circumstances or pursuant to 11 Del. C. § 4217. The court will no t consider repetitive requests for reduction of sentence. The court may

.

. . reduce the

. . . term or conditions of partial confine ment or probation, at any time.
It is this language that controls the Court’s consideration of Redden’s present
applicatio n. 12

A. Re dden Can Only Have His Sentence of Imprisonment Reduced If He Demonstrates Extraordinary Circumstances Exist that Excuse His Untimely Rule 35(b) Motion

.
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. 13 Where a motion for reduction of sentence of imprisonment is filed
within 90 days of sentencing, the Court has broad discretion to decide if it should

11 B.E.T., Inc. v. Bd. of Adjustment of Sussex County , 499 A.2d 811 , 811 (Del. 1985) (per curiam) (quoting Storey v. Camper , 401 A.2d 458, 466 (Del. 1979)).

12 See supra note 4.

13 Johnson v. State , 234 A.2d 447, 448 (Del. 1967) (per curiam).- 7

- a lter its judgment. 14 “ The reason for such a rule is to give a sentencing judge a
second chance to consider whether the initial sentence is appropriate. ” 15

Rule 35(b) requires that an application to redu ce imprisonment be filed
promptly 16

– i.e. within 90 days of the sentence’s imposition

– “otherwise, the
Court loses jurisdiction” to act thereon. 17 An exception to this bar exists: to

overcome the 90

- day time limitation, an inmate seeking to reduce a sentence of
imprisonment on his or her own motion must demonstrate “extraordinary

circumstances.” 18 A heavy burden is placed on the inmate to establis h

“ extraordinary circumstances ” in order to “uphold the finality of sentences.” 19

14 Hewett v. State , 2014 WL 5020251, at *1 (Del. Oct. 7, 2014) (“When, as here, a motion for reduction of sentence is filed within ninety days of sentencing, the Superior Court has broad discretion to decide whether to alter its judgment.”).

15 State v. Remedio
, -- A.3d

-- , -- , 2014 WL 7476400, at *3 (Del. Super. Ct. 2014) (internal citations omitted).

16 See, e.g.
, R.I. Super. Ct. R. Crim. P. 35, historical note (1972) (noting such a provision is “intended to provide the court with an opportunity during a limited period after sentencing to exercise leniency in t he event the court, for some reason, determines that the sentence imposed was unduly severe or a shorter sentence would be desirable”).

17 In re Nichols , 2004 WL 1790142, at *1 (Del. Super. Ct. July 20, 2004); see also State v. Lewis , 797 A.2d 1198, 1205 (Del. 2002) (Steele, J., dissenting) (“ after 90 days . . . the judiciary may not consider [an inmate’s plea for leniency] except where ‘extraordinary circumstances’ may have prevented the applicant from seeking the remedy on a timely basis”).

18 Sample v. State , 2012 WL 193761, at *1 (Del. Jan. 23, 2012) (“Under Rule 35(b), the Superior Court only has discretion to reduce a sentence upon motion made within 90 days of the imposition of sentence, unless ‘extraordinary circumstances’ are shown.”) (emphasis added).

19 State v. Johnson , 2006 WL 3872849, at *3 (Del. Super. Ct. Dec. 7, 2006).- 8

- Recognizing his untimeliness, Re dden tries to cast his claims of “ good faith effort

towards his rehabilitation” as “extraordinary circumstances.” 20

B. Rehabilitati ve Efforts Do Not Constitute “Extraordinary Circumstances” As Would Justify A Sentence Reduction

.
While this Court exercises broad discretion in determining whether a

situation or set of individual factors can be viewed as constituting “extraordinary

circumstances ” permitting consideration of an untimely Rule 35(b) motion, 21 th at

term does have certain lineamental features defining it. “Extraordinary

circumstances” are those which “ specifically justify the delay ” ; are “ entirely
beyond a petitioner’s control” ; and “have prevented the applicant from seeking the
remedy on a timely basis.” 22

Redden fails to acknowledge that “[w]hile participation in rehabilitation
programs is commendable, it is well

- settled that such participation, in and of itself,

is ins ufficient to merit substantive review of an untimely motion for sentence

reduction.” 23 T here are , at least, two reasons for this.

20 Def.’s Mot. to Modify Sent., at 3. Redden also argues that: (1) his sentence is “arguably excessive,” “disproportionate,” and “exorbitant”; and (2) his extended famil y is in need of his support. Id. ; Def.’s Supp. Ltr. of Sept. 11, 2014, at 2 (D.I. 37); Ex. to Def.’s Supp. Ltr. of Dec. 9, 2014, at 2 (D.I. 39).

21 State v. Lewis , 797 A.2d 1198, 1202 (Del. 2002) )

.

22 State v. Remedio
, -- A.3d

-- , -- , 2014 WL 7476400, at * 4 (Del. Super. Ct. 2014) (quoting Lewis , 797 A.2d at 1203, 1205 ) (emphasis in original).

23 Triplett v. State , 2008 WL 802284, at *1 (Del. Mar. 27, 2008); see also Sweeten v. State
, 2011 WL 2362597 (Del. June 13, 2011); Boyer v. Stat e , 2010 WL 2169511 (Del. May 18, 2010);- 9

- First, an inmate’s rehabilitati ve efforts are “ entirely [within] a petitioner’s

control” ; 24 they do meet the accepted Lewis definiti on

. Second, the language of the sentence reduction rule forecloses a claim of
rehabilitation as an “extraordinary circumstance.” Rule 35(b) expressly provides
that the Superior Court may reduce a sentence upon application outside of 90 day s
of the imposition of the sentence “only in extraordinary circumstances or pursuant

to 11 Del. C. § 4217.” 25 Cause to reduce an inmate’s level of custody or time to
be served via a § 4217 application includes “rehabilitation of the offender.” 26 The
normal rules of statutory construction and interpretation are equally applicable to

both Rule 35(b) and § 4217. 27 A n enacting or adopting “body is presumed to have
inserted every provision for some useful purpose and construction, and when

different te rms are used in various parts of a [rule] it is reasonable to assume that a

Morgan v. State , 2009 WL 1279107 (Del. May 11, 2009); Jones v. State , 2003 WL 356788 (Del. Feb. 14, 2003); Allen v. State, 2002 WL 31796351 (Del. Dec. 11, 2002); State v. Liket , 2002 WL 31133101, at *2 (Del. Super. C t. Sept. 25, 2002) (“Exemplary conduct and/or successful rehabilitation while imprisoned do not qualify as ‘ extraordinary circumstances ’ within the purview of Rule 35 and are insufficient grounds for supporting a Rule 35 reduction of sentence.”).

24 Lewis , 797 A.2d at 1205.

25 Super. Ct. Crim. R. 35(b) (emphasis added).

26 D EL

. C ODE A NN

. tit. 11, §§ 4217(b)

- (c) (2014).

27 Lewis , 797 A.2d at 1201.- 10

- distinction between the terms was intended.” 28 Thus, when Rule 35(b) expressly
sets forth two different circumstances under which the Court is empowered to

reduce a sentence more t han 90 days after its imposition, it must be viewed as two
distinct exceptions to the 90

- day bar. That the predicate of what constitutes
“extraordinary circumstances” is separate and distinct from the factors supporting

review under 11 Del. C. § 4217 is o bvious from the disjunctive language of the

rule. 29 In short, i t is clear from the rule’s langu a ge itself that alleged rehabilitation

is not the stuff of which a claim of “extraordinary circumstances” is made

. 30

Instead
, such claims are properly addressed under title 11, section 4217

. 31

C. Re dden’s Motion, Because It Is Repetitive, Is Expressly Barred by Rule 35(b). Also found in Rule 35(b) is a separate and more unforgiving bar: “[t]he

[C]ourt will not consider repetitive requests for reduction of sentence.” 32 Unlike

28 Giuricich v. Emtrol Corp. , 449 A. 2d 232, 238 (Del. 1982) (internal quotation omitted).

29 See De nnis v. State , 41 A.3d 391, 394 (Del. 2012) ( use of the disjunctive “or” consistently understood as distinguishing alternative elements).

30 State v. Liket , 2002 WL 31133101, at *2 (Del. Super. Ct. Sept. 25, 2002) (“[S] ince the purpose of 11 Del. C. § 421 7 is to directly address modification of sentence based on a defendant’s rehabilitation efforts, and 11 Del. C. § 4217 is included within the constructs of Rule ( 35 ) , it is evident that 11 Del. C. § 4217 is the appropriate governing statute through which D efendant may be entitled to a reduction in his sentence based on rehabilitation.”).

31 Henry v. State , 2009 WL 3286068, at *1 (Del. Oct. 13, 2009). Ketchum v. State , 2002 WL 1290900 (Del. June 10, 2002) (completion of numerous programs not “extraordinary circumstances”; instead such circumstances might warrant court to instruct defendant to seek DOC’s recommendation for 11 Del. C. §4217 relief); Liket
, supra note 30.

32 Super. Ct. Crim. R. 35(b) (emphasis added).- 11

- the 90

- day jurisdictional limit with its “extraordinary circumstances” exception,
the bar to repetitive motions has no exception. 33 Instead, t his bar is absolute and
flatly “prohibits repe titive requests for reduction of sentence.” 34

R ed den filed his first motion for sentence reduction under Rule 35(b) i n
April 201 2, 35 which the Court denied. Redden filed t his second Rule 35(b) motion

i n August 2014

. Even if Re dden ’s untimeliness were excusable, “th [is]

. . . Court
[i]s, nevertheless, compelled to deny the motion as repetitive.” 36 Thus
, relief on

this, R edden ’s second reduction request, is also “barred by the prohibition in Rule
35(b) on repetitive motions.” 37

33 See Giuricich v. Emtrol Corp. , 449 A.2d 232, 238 (Del. 1982) (“[W]here a provision is expressly included in one section of a statute, but is omitted from another, it is reasonable to assume that the Legi slature was aware of the omission and intended it.”); See also Adoption of Swanson , 623 A.2d 1095, 1097 (Del. 1993) (citing Giuricich , 449 A.2d at 238) (“ A court may not engraft upon a statute language which has been clearly excluded therefrom.”).

34 Thoma s v. State , 2002 WL 31681804, at *1 (Del. Nov. 25, 2002). See also Jenkins v. State, 2008 WL 2721536, at *1 (Del. July 14, 2008) (Rule 35(b) “prohibits the filing of repetitive sentence reduction motions”); Morrison v. State , 2004 WL 716773, at *2 (Del. Mar. 24, 2004) (“motion was repetitive, which also precluded its consideration by the Superior Court”); Duffy v. State , 1998 WL 985332, at *1 (Del. Nov. 12, 1998) (as court had denied original, timely Rule 35(b) motion, “Rule 35(b) ceased to be a viable option” for seeking sentence reduction).

35 While Redden is correct that he “did not file a motion within 90 days of the sentence,”

see Def.’s Mot. to Modify Sent., at 2, he must acknowledge, as he did before this Court previou sly, that this is not his first Rule 35(b) motion. See Memorandum in Support of Post

conviction Relief Motion, State v. Darrell T. Redden , ID No. 11020008321, at 5 (Del. Super. Ct. June 15, 2012) (“The defendant filed a timely Motion for Modification of S entence pursuant to Superior Court Criminal Rule 35(b).”).

36 Cochran v. State , 2005 WL 3357633, at *1 (Del. Dec. 8, 2005).

37 Davis v. State , 1999 WL 486736, at *1 (Del. May 10, 1999).- 12

- D. R edden ’s Level IV Period Remains An Appropriate Term Imposed To Facilitate His Transition Back Into Society.
Redden also requests that the Level IV portion of his sentence be designated

home confinement. 38 A motion for modification of partial confinement or
probation is not subject to the ninety

- day limitation applicable to a motion for
reduction of imprisonment. 39 In fact, t here are no Rule 35(b) bars to consideration
of this request by Redden. 40 Here the Court imposed a Level IV term to be served

e ither at a halfway ho use or on home confinement. A Level IV term, i.e. a period
in a highly structured community

- based supervision setting, is a component of
Redden’s sentence that is integral to the Court’s overall “sentencing scheme” or
“plan.” 41

The Court has fully review ed Redden ’s application (and supplementary

letter s ), the record in h is case, Redden ’s supervision history, and all sentencing
information available. The Court finds the challenged aspect of its sentence

38 Def.’s Mot. to Modify Sent., at 1

- 2, 5.

39 Benge v. State
, 101 A.3d 973, 977 (Del. 2014).

40 Super. Ct. Crim. R. 35(b) (“ Reduction of Sentence . . . . T he court may . . . reduce the

. . . term or conditions of partial confinement or probation, at any time.”) (emphasis added). See Teat v. State , 2011 WL 4839042, at *1 (Del. Oct. 12, 2011) (finding this Court erred in holding that motion for modification of Level IV time was subject to ninety

- day period) ; Iverson v. State, 2009 WL 2054563 (Del. July 16, 2009) (same)

.

41 See Defoe v. State , 750 A.2d 1200, 1202 (Del. 2000).- 13

- remains appropriate and will permit the Department of Correction to exercise its
discretion in placing him in the most appropriate available Level IV setting when
his incarcerative term is complete. I n turn, the Court will exercise its discretion 42

under Rule 35(b) and deny Redden ’s request to reduce or modify the Level IV

term of h is sentence.

IV. C ONCLUSION
Redden’s application to reduce his sentence of imprisonment is procedurally

barred and must be DENIED

. Having review ed the merits of his request to modify

his Level IV term , the Co urt, exercising its discretion under Rule 35(b), DENIES
Redden’s request for modification of the conditions of his partial confinement

term.

IT IS SO ORDERED.

/s/ Paul R. Wallace Paul R. Wallace, Judge Original to Prothonotary cc: Investigative Services Office

42 Rondon v. State , 2008 WL 187964, at *1 (Del. Jan. 15, 2008) (“The merit of a sentence modification under Rule 35(b) is directed to the sound discretion of the Superior Court.”).