IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) )

v. ) ID No. 1606018393 ) KYSHEEM BYRD, ) ) Defendant. )

)

Date Submitted: July 31 , 2023 Date Decided: September 25 , 202 3

ORDER

Upon consideration of Defendant Kysheem Byrd ’ s “ Motion for Sentence

Modification ” (“Motion”), Superior Court Criminal Rule 35 (b) 1 , statutory and

decisional law, and the record in th i s cas e , IT APPEARS THAT:

(1) On November 9 , 20 17

, Byrd pled guilty to one c ount of Home Invasion,

one c ount of Possession of a Firearm During the Commission of a Felony

(“PFDCF”) , and one c ount of Conspiracy in the Second Degree (“Conspiracy

Second Degree ”)

. 2 For the Home Invasion, e ffective June 23, 2016

, Byrd was

sentenced to 6 years of unsuspended Level V time. 3 For the PFDCF, Byrd was

sentenced to 3 years unsuspended Level V time

. 4 And for the Conspiracy Second

1 See Super. Ct. Crim. R. 35(b).

2 D.I. 3 6

. 3 Byrd’s sentence for the Home Invasion is as follows: 17 years at Level V supervision, suspended after 6 years at supervision Level V for 6 months supervision Level IV, followed by 1 year at supervision Level III. Id

. 4 Id.2

Degree , Byrd was sentenced to 6 months at Level III probation

. 5

(2) On July 14, 2023

, Byrd filed the instant M otion seeking modification

of his sentence pursuant to Rule 35(b). 6 He asks the Court to discharge the remainder

of his Level IV and Level I II sentence “ in the interest of ensuring Movant [ ’ ] s

continued fluid and positive momentum .” 7 In the alternative, he requests a transfer

to Pennsylvania to serve the remainder of his sentence. 8 In support of his Motion

,
Byrd cites his detainer in his Pennsylvania home in which he has a 3

- 6 year sentence

remaining, his support system in Pennsylvania, and his model behavior and

productivity while incarcerated

. 9

(3) The State filed its Response to Byrd ’s Motion on July 31, 2023,

opposing modification

. 10 The State claims Byrd’s Motion is time

- barred and raises

no grounds for the imposition of an illegal sentence

. 11 T he State maintains should

the Court find Byrd’s Motion is not time

- barred

, then the C ourt would be statutorily

5 Byrd’s sentence for the Conspiracy Second Degree is as follows: 2 years at supervision Level V, suspended for 6 months at Level III. Level III probation on the Conspiracy Second Degree was to run concurrent with his Level III probation under his Home Invasion charge

. Id

. 6 D.I. 41.

7 Id

. 8 Id

. The State addressed Byrd’s request for transfer in their response and stated Pennsylvania will not process a request for transfer until Byrd is released from incarceration on probation. In his Motion, Byrd maintains his release from incarceration at Level V supervision was to take place on August 4, 2023

. His subsequent release occurred after the State submitted their response. At the time of this Order, Byrd has since been released from Level V supervision in Delaware and was transferred to Pennsylvania

. Therefore, Byrd’s plea o f transfer to Pennsylvania is rendered moot.

9 Id.

10 D.I. 4 3

. 11 Id.3

barred from removing all Lev el IV and Level III time pursuant to 11 Del. C. §

42 0 4 ( l )

. 12 The statute imposes the minimum custodial supervision time when Level

V custody totals 1 year or more

. 13

(4) Rule 35(b) governs m otions for modification or reduction of sentence. 14

“Under Rule 35(b), a motion for sentence modification must be filed within 90 days

of sentencing, absent a showing of ‘extraordinary circumstances.’” 15 Rule 35(b) also

mandates that “[t]he [C]ourt will not consider repetitive requests for reduction of

sen tence.” 16 “[T]his bar is absolute and flatly ‘prohibits repetitive requests for

reduction of sentence.’” 17

(5) Byrd ’s Motion is procedurally barred as untimely and repetitive

. 18

(6) Byrd was sentenced on November 9, 2017, and filed the instant Motion

on July 1 4, 2023, well outside the 90

- day filing deadline. 19 Th e Court does not find

Byrd’s arguments pertaining to his good behavior and familial connection to

12 Id

. 13 I d.; see also 11 Del. C. § 420 4 ( l ).

14 Super. Ct. Crim. R. 35(b).

15 Croll v. State , 2020 WL 1909193, at *1 (Del. Apr. 17, 2020) (TABLE) (affirming the Superior Court’s denial of a motion for modification of sentence where the motion was repetitive and filed beyond the 90

- day limit ).

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

17 State v. Redden , 111 A.3d 602, 609 (Del. Super. 2015) (quoting Thomas v. State, 2002 WL 3168 1804, at *1 (Del. Nov. 25, 2002) )

. 18 See Super. Ct. Crim. R. 35(b )

. 19 D.I. 36, 41.4

Pennsylvania sufficient to establish an e xtraordinary circumstances exception

. 20

Therefore, the 90

- day deadline will not be extended

.
(7) Further, Byrd filed his first Motion for Sentence Reduction and

Modification on February 26, 2018. 21 On April 19, 2018, th e Court denied his

request. 22 O n January 24, 2020, Byrd filed his second Motion for Modification 23

which was denied as repetitive on February 6, 2020. 24

(8) Pursuant to Rule 35(b), th e Court finds Byrd’s third Motion for

Modification repetitive , and thus barred under Rule 35(b)

. 25

(9) Because the Motion is untimely and repetitive, the State’s argument that

the Court is statutorily barred from discharging Byrd’s minimal custodial

supervision time imposed by 11 Del. C. § 420 4 ( l ) need not be addressed. 26

NOW, THEREFORE, IT IS HEREBY ORDERE D that Kysheem Byrd ’ s

Motion for Sentence Modification is DENIED

.

/s/ Jan R. Jurden Jan R. Jurden, President Judge

20 State v. Diaz , 2015 WL 1741768, at *2 (Del. Apr. 15, 2015) (“In order to uphold the finality of judgments, a heavy burden is placed on the defendant to prove extraordinary circumstances when a Rule 35 motion is filed outside of ninety days of imposition of a sentence”).

21 D.I. 37.

22 D.I. 38.

23 D.I. 39.

24 D.I. 40 ; see also Super. Ct. Crim. R. 35(b).

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

26 11 Del. C. § 420 4 ( l )

.5

Original to Prothonotary

cc: Kysheem Byrd, Defendant Matthew Hicks , DAG