IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

 )

v. ) I.D. No. 1601011422

 )

BRIAN LIVINGSTON, )

 )

Defendant. )

Date Submitted: May 11, 2022

Date Decided: July 5, 2022

Date Corrected: July 8, 20221

ORDER DENYING DEFENDANT’S MOTION FOR MODIFICATION

Upon consideration of Defendant Brian Livingston’s Motion for Modification 

(“Motion”)2 pursuant to Superior Court Criminal Rule 35; the State’s Response 

thereto;3and the record in this case, the Court makes the following findings:

1. On September 14, 2016, Defendant pled guilty to Manslaughter, 

Robbery Second Degree, and Conspiracy Second Degree.4 In pleading guilty, 

Defendant admitted to recklessly causing the death of Everardo Martinez by 

stabbing him with a knife.5

2. Defendant was sentenced to 12 years at Level 5 with transitioning levels 

1 Corrected to reflect the motion is DENIED.

2 D.I. 23.

3 D.I. 26.

4 D.I. 5.

5 D.I. 2.
2

of probation.6 

3. Since sentencing, Defendant has filed two motions pursuant to Superior 

Court Criminal Rule 35 and one filed pursuant to 11 Del. C. §4204A. All three were

denied.7 Defendant filed the instant Rule 35(b) motion on March 14, 2022.8

4. In his latest Motion, Defendant asks the Court to reduce his 12-year 

period of incarceration to 9 years.9 Defendant essentially asks the Court to impose 

a longer probation in lieu of Level 5 incarceration.10 Defendant argues the 

modification is warranted based on the following grounds: (1) his growth and 

development while incarcerated; (2) his belief that a “[psychological] forensic 

eval[uation] with risk assessment report” will reveal the “growth and development 

transitions of maturation throughout his years of incarceration”; (3) his refrain from 

6 D.I. 12. Defendant was sentenced on March 24, 2017, effective January 17, 2016, as follows: 

(1) as to Manslaughter, N16-09-0164-I, 25 years at Level 5, suspended after serving 12 years at 

Level 5, for 13 years at Level 4 Work Release, suspended after 9 months at Level 4 Work Release, 

for 2 years at Level 3, hold at Level 5 until space is available at Level 4 Work Release — the first 

2 years of this sentence is a mandatory term; (2) as to Robbery Second, N16-09-0165-I, 5 years 

at Level 5, suspended for 18 months at Level 3 — probation is concurrent to criminal action 

number N16-09-0164-I; and (3) as to Conspiracy Second, N16-09-0166-I, 2 years at Level 5, 

suspended for 18 months at Level 3 — probation is concurrent to criminal action number N16-09-

0165-I.6

7

See D.I. 13 (timely Rule 35(b) motion denied by the Court on the merits); see also D.I. 17 (Rule 

35(a) motion denied due to Defendant’s failure at the time to meet the time-served eligibility 

requirements set forth in 11 Del. C. §4204A); see also D.I. 19 (Motion for Modification/Review 

of Juvenile Sentence denied pursuant to 11 Del. C. §4204A’s requirement that “at least 5 years 

have elapsed since the date on which the Court ruled upon the offender’s most recent position”).

8 D.I. 23. Although not made explicit by the Motion itself, the Court construes Defendant’s Motion 

as a Rule 35(b) motion for modification of sentence, as does the State. See D.I. 26 (“While not 

cited in his filing, the substance of the motion for modification of sentence reflects an application 

made pursuant to Superior Court Criminal Rule 35(b).”).

9 D.I. 23.

10 See id. Defendant also asks for Level 4 Home Confinement in lieu of Level 4 Work Release. 
3

“irritating the Court” with countless motions for modification; (4) “good cause,” 

including rehabilitative measures undertaken by Defendant while in custody; and (5) 

his lack of criminal history prior to his current convictions.

11

 

5. The State filed its response in opposition to Defendant’s Motion on 

May 16, 2022.12 The State argues that Defendant’s Motion should be denied based 

on it being untimely, repetitive, and substantively deficient.13

Defendant’s Motion is Repetitive and Therefore Time-Barred

6. Rule 35(b) mandates that “[t]he [C]ourt will not consider repetitive 

requests for reduction of sentence.”14 “[T]his bar is absolute and flatly ‘prohibits 

repetitive requests for reduction of sentence.’”

15

 “As our Supreme Court and this 

Court have consistently held, Rule 35(b) prohibits consideration when the request is 

for sentence reduction, modification of a term of partial confinement, or 

11 D.I. 23.

12 D.I. 26.

13 Id. at *2-3.

14 Super. Ct. Crim. R. 35(b). Unlike the 90 day jurisdictional limit with its “extraordinary 

circumstances” exception, the bar to repetitive motions has no exception. See Redden, 111 A.3d, 

at 608 (citing 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 Legislature 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.”)).

15 Redden, 111 A.3d, at 609 (quoting Thomas 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)).
4

probation.”16 The bar to repetitive motions has no exception.17 This is Defendant’s 

third Rule 35 motion.

18 Rule 35(b) prohibits consideration of Defendant’s Motion.

NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s 

Motion for Modification is DENIED. 

/s/ Jan R. Jurden

Jan R. Jurden, President Judge

cc: Original to Prothonotary

Brian J. Robertson, DAG

Brian Livingston (SBI# 00741658)

16 See Teat v. State, 2011 WL 4839042, at *1 (Del. Oct. 12, 2011); State v. Bennett, 2015 WL 

1746239, at *2 (Del. Super. Apr. 13, 2015); State v. Weidlow, 2015 WL 1142583, at *1–2 (Del. 

Super. Mar. 11, 2015).

17 See Culp, 152 A.3d at 144; State v. Redden, 111 A.3d 602, 608–09 (Del. Super. 2015).

18 See supra note 7; see also D.I. 26 (“. . . the present motion constitutes Mr. Livingston’s third 

motion for reduction of sentence.”).