IN THE SUPERIOR COUR T OF THE STATE OF DE LAWARE

IN AND FOR NEW CASTL E COUNTY

STATE OF DELAWARE, ) ) )

v. ) ID No. 121 2 00 5871A ) JOEQWELL S. COVERDAL E

, ) )

Defendant. )

Submitted: July 31 , 2014 Decided: August 1 1 , 2014

Corrected : August 1 3 , 2014 * 1

ORDER DENYING MOTION TO R EDUCE SENTENCE

This 1 1 th day of August, 2014, upon consideration of the Defendant ’ s

Motion for S entence Reduction and the record in this matter , it appears to

the Court that:

(1) On February 14, 2014, following a jury trial, Joeqwell S.

Coverdale was convicted of three counts of first degree robbery, one count

of second degree robbery, second degree conspiracy and four counts of

* This corrected order is issued to clarify the bases for the Court’s finding of the inapplicability of 79 D EL

. L AWS c. 297 (2014) to Coverdale’s sentence

, and to address typographical errors in paragraph 6 of the original o rder

. See Super. Ct. Crim. R. 36 (The Court may correct its clerica l errors at any time).- 2

- possession of a firearm during the commission of a felony (“PFDCF”). 2 On

June 13, 2014 , Coverdale was sentenced to serve: (1) ten years at Level V,

suspended after three years for lesser levels of supervision for one robbery

first degree charge, and t hr ee years at Level V for each of the other two

robbery first degree charge s; (2) three years at Level V for each of the four

P F DCF count s ; (3) five years at Level V, suspended immediately for

r obbery second degree; and (4) two years at Level V, suspended

immediately for conspiracy second degree. Coverdale’s 21

- year term of

unsuspended impr i s o nment is comprised wholly of minimum terms of

incarceration that must be imposed and cannot be suspended

. 3

(2) Coverdale filed a direct appeal from his convictions and

sentence , which is now pending

. 4

2 D EL

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. tit. 11, § 832 (2012) (robbery in the first degree); id. at § 831 (robbery in the second degree); id. at 512 (conspiracy in the second degree); id. at § 1447A (PFDCF).

3 D EL

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. tit. 11, § 832(b)( 1) (2012) (“ Notwithstanding any provisions of this section or Code to the contrary, any person convicted of robbery in the first degree shall receive a minimum sentence of . . . [t]hree years at Level V . . .”) ; id . at §§ 1447A(b) & (d) (“ A person convicted [of PFDCF] shall receive a minimum sentence of 3 years at Level V . . . [and a]ny sentence imposed for a violation of this section shall not be subject to suspension . . .”). See State v. Lennon , 2003 WL 1342983, at *1 (Del.
Mar. 11, 20 03) (court must impose the statutory minimum for robbery first degree).

4 See Not. of Appeal, Joeqwell S. Coverdale v. State of Delaware , No. 377, 2014 (Del. filed July 14, 2014).- 3

- (3) Coverdale then filed the present motion under Superior Court

Criminal Rule 35(b) requesting reduction of h is Level V term. 5 Coverdale

appears to seek application of recently amended provisions of 11 Del

. C.

§ 3901

, 6 suggesti ng they may be applied under Rule 35(b) to reduce his

overall term of incarceration by running certain of his sentences

concurrently. 7 He asks also t hat the Court defer ruling on his motion until

after disposition of his direct appeal. 8

(4) The Court may consider such a motion “without presentation,

hearing or argument.” 9 And while the Court may defer decision of this

motion during the pendency of Coverdale’s appeal, the Court may also

decide the motion now. 10 The Court will decide this motion on the papers

filed.

5 Super. Ct. Crim. R. 35(b) (providing that, under certain conditio ns, the Court may reduce a sentence of imprisonment on an inmate’s motion).

6 See 79 D EL

. L AWS c. 297 (2014) ( effective July 9, 2014; amends 11 Del. C. § 3901(d) to grant a sentencing judge discretion to impose either concurrent or

consecutive sentences for certain crimes).

7 Def. Rule 35(b) Mot. at 1

- 2.

8 Id. at 2.

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

10 Id.- 4

- (5) The intent of Superior Court Criminal Rule 35(b) has

historically been to provide a reasonable period for the Court to consider

alterati on of its sentencing judgments. 11 Where a motion for reduction of

sentence is filed within 90 days of sentencing, the Court has broad

discretion to decide if it should alter its judgment. The reason for such a

rule is to give a sentencing judge a second c hance to consider whether the

initial sentence is appropriate. 12 But, while the Court has wide discretion to

reduce a sentence upon a timely Rule 35 application, the Court has no

authority to reduce or suspend the mandatory portion of any substantive

statu tory minimum sentence. 13

(6) Th e Court was constrained to impose at least a 3

- year

mandatory prison term for each first degree robbery charge 14 and at least a

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

12 See United States v. Ellenbogan , 390 F.2d 537, 541, 543 (2d Cir . 1968) (explaining time limitation and purpose of then

- extant sentence reduction provision of Federal Criminal Rule 35, the federal analogue to current Superior Court Criminal Rule 35(b)); see also United States v. Maynard , 485 F.2d 247, 248 (9th Cir. 197 3) (Rule 35 allows sentencing court “to decide if, on further reflection, the original sentence now seems unduly harsh” . . . such request “is essentially a ‘plea for leniency.’”) (citations omitted).

13 State v. Sturgis , 947 A.2d 1087, 1092 (Del. 2008) (“ Superior Court Rule of Criminal Procedure 35(b) provides no authority for a reduction or suspension of the mandatory portion of a substantive statutory minimum sentence.”) (emphasis in original).

14 D EL

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. tit. 11 , § 832(b) (2012). See State v. Lennon , 2003 WL 1342983, at *1 (Del. March 11, 2003) (court must impose minimum for robbery first degree; at the time of Lennon’s plea that was 2 years).- 5

- 3

- year mandatory prison term for each PFDCF charge. 15 At Coverdale’s

sentencing, t he Court was statutorily prohibited from ordering any of those

prison terms to run con currently

. 16 And, though Coverdale might argue

otherwise, the new provisions of § 3901(d)

– enacted some 18 months after

his crime s and about a month after his sentencing

– have no retroactive

effect. 17 But e ven if they did, under now

- amended § 3901(d)

, the Court still

has no authority to impose concurrent sentencing for certain serious crimes

.

Those crimes include robbery first degree and PFDCF. 18

( 7 ) In turn, the Court must deny Coverdale’s motion to reduce h is

sentence

.

15 D EL

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. tit. 11, § 1447A(b) (2012).

16 D EL

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. tit. 11, § 3901(d) (2012) ( “N o sentence of confin ement of any

criminal defendant . . . shall be made to run concurrently with any other sentence of confinement imposed on such criminal defendant.”)

.

17 State v. Jennings

, Del. Super., ID Nos. 1203003795 & 1304023113

, Vaughn, P. J. ( Aug. 11

, 2014 ) ( rejecting the argument that recently amended § 3901(d) provisions that might allow concurrent sentencing for some crimes could be applied retroactively); State v. Ismaaeel, 840 A.2d 644, 654 (Del. Super. Ct. 2004)

, aff’d

, 2004 WL 1587040 ( Del. July 25

, 2004) ( sentencing scheme in effect when defendant’s drug offenses were committed applied because the subsequent statutory amendments applied prospectively only ); State v. Nixon , 46 A.2d 874, 875 (Del. Gen. Sess. 1946) ( “Retrospective operatio n is not favored by the Courts, and 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.”) (citations omitted).

18 D EL

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. tit. 11, § 3901(d) (Supp. 2014) ( “. . . no sentence of confinement . . . shall be made to run concurrently with any other sentence of confinement imposed . . . for any conviction of . . . Robbery in the first degree [or] . . . Possession of a fire arm during the commission of a felony . . . .”).- 6

- NOW, THEREFORE, IT IS ORDERED that Joeqwell S.

Coverdale’s motion for reduction of sentence is DENIED

.

/s/ Paul R. Wallace

P aul R. Wallace, Judge

Original to Prothonotary

cc: Caterina Gatto, Deputy Attorney General John S. Malik, Esquire Mr. Joeqwell S. Coverdale, pro se Investigative Services Office