IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE

v.

JOSHUA RIVERA,

Defendant.

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 I.D. No.: 1908004392

Upon Defendant’s Motion for Correction of Sentence:

DENIED.

Submitted: February 15, 2022

Decided: May 9, 2022

MEMORANDUM OPINION AND ORDER

Amanda D. Buckworth, Esquire, Christina L. Ruggiero, Esquire, Delaware 

Department of Justice, Attorneys for the State of Delaware.

Michael W. Modica, Esquire, Attorney for the Defendant.

Adams, J.
2

Defendant Joshua Rivera timely filed a Motion for Correction of Sentence on 

January 12, 2022. For the following reasons, the Court finds that the sentence 

imposed is appropriate. Defendant’s Motion for Correction of Sentence is, therefore, 

DENIED.

BACKGROUND

On June 21, 2021, after a four-day jury trial in this matter, Defendant was 

found guilty as to the following charges: (1) Attempted Kidnapping First Degree; 

(2) Attempted Robbery First Degree; and (3) Assault Third Degree. The Court 

sentenced Defendant on December 17, 2021. At sentencing, the State recommended 

Defendant be sentenced for ten years at level V, to be broken down by charge at the 

Court’s discretion. After reviewing the parties’ sentencing memorandums and the 

presentence investigation, presiding over a sentencing hearing, and listening to the 

victim impact statement and Defendant’s allocution, the Court sentenced Defendant 

as follows:

ID No. Charge Sentence SENTAC 

Guideline

1908004392 Attempted 

Kidnapping

15 years Level V, 

suspended after 5 years 

for 18 months Level IV

(DOC Discretion), 

suspended after 6 

months for 1 year Level 

III probation.

Statutory Range: 

2-25 years at 

Level V (2 years 

min/man); 

Presumptive 

Sentence1: 2-5 

years at Level V

1 Class B Violent Felonies, including Attempted Kidnapping and Attempted 

Robbery First Degree, do not include any Acceptance of Responsibility Guidelines. 
3

1908004392 Attempted 

Robbery First 

Degree

15 years Level V, 

suspended after 5 years 

for 18 months Level IV

(DOC Discretion), 

suspended after 6 

months for 1 year Level 

III probation.

Statutory Range: 

2-25 years at 

Level V (2 years 

min/man); 

Presumptive 

Sentence: 2-5 

years at Level V

1908004392 Assault Third 

Degree

1 year Level V, 

suspended for 1 year 

Level IV (DOC 

discretion), suspended 

after 6 months for 12 

months Level III

probation.

Statutory Range: 

0-1 year at level V

Presumptive 

Sentence: up to 12 

months at level II

In imposing this sentence, the Court followed the recommendation of the State 

for non-suspended Level V time. The sentence also comports with the SENTAC 

guidelines for each offense.

In Defendant’s Motion for Correction of Sentence, Defendant moves to 

correct the sentence imposed in this case because it was “imposed in an illegal 

manner.”2 Specifically, Defendant argues that the Court erred by sentencing him 

“more harshly” because: (1) Defendant exercised his constitutional right to trial; and 

(2) the Court purportedly relied on uncharged misconduct not found by the jury, or 

contained in the trial record, as the basis for Defendant’s sentence.

See Delaware Sentencing Accountability Commission, SENTAC Benchbook (2021-

2022) at 2, [hereinafter SENTAC Benchbook].

2 D.I. 46 at ¶3.
4

ANALYSIS

Superior Court Rules of Criminal Procedure Rule 35(a) permits the Court to 

correct an illegal sentence at any time and to correct a sentence imposed in an illegal 

manner within 90 days after the sentence is imposed.3 The Supreme Court of 

Delaware has held that Rule 35 has a “narrow function;” that is, to correct an “illegal 

sentence, not to re-examine errors occurring at the trial or other proceedings prior to 

the imposition of sentence.”4

As such, “[r]elief under Rule 35(a) is available ‘when the sentence imposed 

exceeds the statutorily-authorized limits, [or] violates the Double Jeopardy 

Clause...’”5 “A sentence is also illegal if it ‘is ambiguous with respect to the time 

and manner in which it is to be served, is internally contradictory, omits a term 

required to be imposed by statute, is uncertain as to the substance of the sentence, or 

is a sentence which the judgment of conviction did not authorize.”6

The Supreme Court has also made clear that “[a]ppellate review of sentences 

is extremely limited,” and “appellate review of a sentence generally ends upon 

determination that the sentence is within statutory limits prescribed by the 

3 Super. Ct. Crim. R. 35(a)-(b). 

4 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998) (citing Hill v. United 

States, 368 U.S. 424, 430 (1962)) (emphasis in original).

5 Brittingham, 705 A.2d at 578 (citing United States v. Pavlico, 961 F.2d 440, 

443 (4th Cir. 1992)).

6 Brittingham, 705 A.2d at 878 (quoting United States v. Dougherty, 106 F.3d 

1514, 1515 (10th Cir. 1997).
5

legislature.”7 A sentence that exceeds SENTAC guidelines, but within the 

maximum allowed by statute, will not give rise to a legal or constitutional right of 

appeal.8 As such, so long as the sentencing judge did not rely upon false or unreliable 

information, exhibit judicial vindictiveness or bias, or exhibit a closed mind, a 

sentence is generally not reviewable.9

Defendant, in his Motion, does not cite any of the recognized reasons under 

Rule 35 for the Court to correct his sentence. Rather, Defendant objects to certain 

aspects of the sentencing hearing, including: discussion with the State regarding its 

sentencing recommendation, implications that the Court imposed a “trial tax,” and 

comments made by the Court during sentencing. Each of Defendant’s arguments 

must be rejected.

1. The Court Did Not Punish Defendant for Exercising his Constitutional 

Right to a Trial by Jury 

During the Sentencing Hearing, the Court had a discussion with the State 

regarding the State’s recommended sentence of ten years. The Court also noted that 

the sentencing was not the result of a plea, but after a jury trial where the victim took 

the stand and “had to relive probably one of the worst days of her life.” Defendant 

7 Mayes v. State, 604 A.2d 839, 842 (Del. 1992). 

8 Laboy v. State, 663 A.2d 487, at *1, 1995 WL 389720, (Del. 1995) (TABLE)

(quoting Gaines v. State, 571 A.2d 756, 767 (Del. 1990)).

9

Id.
6

argues that, in doing so, the Court impermissibly punished Defendant for exercising 

his constitutional right to trial by jury. 

This is not so. The Court did not punish the Defendant for electing to have a 

jury trial. The Court, in asking the State about its sentencing recommendation of a 

total of ten years, was simply asking why the State’s recommendation had not 

changed from the offer of ten years in the plea agreement prior to trial. In response, 

the State noted that while Defendant did not accept responsibility in the

Presentencing Investigation Report (“PSI”), an aggravating factor, that he was 

cooperative with police, admitted to everything that he did and was “apologetic” in 

the PSI. The State also did not want to impose a “trial tax,” because the Defendant 

had a Constitutional right to trial. A court’s effort to fully understand the rationale 

behind a sentencing recommendation is far from unconstitutional. In fact, as 

recognized by the Supreme Court of the United States, “possession of the greatest 

information possible is essential to the selection of an appropriate sentence.”

10

Although not stated explicitly on the record, the Court agreed with the 

conclusion not to impose a so-called “trial tax” or “trial penalty.”11 Rather, after 

10 Lockett v. Ohio, 428 U.S. 586, 603 (1978).

11 In Defendant’s Motion, his counsel cited to The New York Trial Penalty: The 

Constitutional Right to Trial Under Attack.” In this report, the Committee defined 

the trial penalty as “the substantial difference between the sentence offered prior to 

trial versus the sentence a defendant receives after trial.” Id. at 8. Here, the Court 

imposed the exact same non-suspended sentence – 10 years at Level 5 – that was 
7

reviewing the sentencing memorandums from both parties, reviewing the PSI, and 

listening to each party’s sentencing presentation (including the victim impact 

statement and Defendant’s allocution), the Court followed the State’s 

recommendation and did not exceed SENTAC guidelines. Thus, Defendant’s 

challenge does not give rise to a legal or constitutional right of appeal.12

2. The Discussion of the “Kill List” Was Not Impermissible

Defendant also argues, without any case law or other support, that the Court’s 

reference to a “kill list” was impermissible. As a preliminary matter, Defendant has 

waived his right to object to the “kill list” in his Motion because he did not object to 

the use of the term in the State’s sentencing memorandum, the pre-Sentence 

Investigation Report, the State’s presentation at the sentencing hearing, or the 

Court’s ruling during sentencing.13

Even if Defendant has not waived this argument, the Supreme Court of 

Delaware has made clear that “a sentencing court has broad discretion in determining 

what information to rely on from a presentencing report and related sources.”14 A

sentencing court can consider “information pertaining to a defendant’s personal 

offered as part of the plea prior to trial. Therefore, the Court could not have imposed 

a “trial penalty” under this definition.

12 Laboy, 1995 WL 389720, at *1.

13 See State’s Response to the Defendant’s Motion for Correction of Sentence at 

6.

14 Mayes v. State, 604 A.2d 389 (Del. 1992).
8

history and behavior which is not confined exclusively to conduct for which that 

defendant was convicted.”15

This view is supported by the United States Constitution, the Supreme Court 

of the United States, and federal courts that have held that the evidentiary rules of 

trial do not apply to sentencing.

16

 To craft an individualized and appropriate 

sentence, a sentencing courts must have “the fullest information possible concerning 

the defendant’s life and characteristics.”17 As the Supreme Court of the United 

States explained, “modern concepts individualizing punishment have made it all the 

more necessary that a judge not be denied an opportunity to obtain pertinent 

information by a requirement of rigid adherence to restrictive rules of evidence 

properly applicable to the trial.”18

Thus, sentencing courts have wide discretion in the sources and types of 

evidence used to determine an appropriate sentence and are “specifically entitled to 

rely upon information regarding unproven crimes.”19 The Supreme Court of 

Delaware held that it would not find an abuse of discretion unless it is clear the 

information was demonstrably false or lacked a minimal indicium of reliability.20

15 Id. at 842 (quoting Lake v. State, 1984 WL 997111, at *1 (Del. 1984).

16 Id. 

17 Id. (citing Williams v. New York, 337 U.S. 241, 247 (1949)).

18 Williams, 337 U.S. at 247.

19 Mayes, 604 A.2d at 842.

20 Id. at 843.
9

The reference to the “kill list” was not demonstrably false and there was a 

sufficient indicium of reliability in the evidence supporting the use of the term. 

Information pertaining to the “kill list” appeared in the PSI and the State’s sentencing 

memorandum, both of which the Court reviewed in preparing for the sentencing 

hearing. Defendant wrote the victim’s name and phone number on two pieces of 

notebook paper21 where Defendant also wrote, “Wait for Amber, do what you have 

to do.” This same piece of paper also included names of other individuals with 

whom the Defendant worked and their phone numbers. 

The sentencing court in Mayes v. State22 reviewed and considered information 

found in the presentence report from the victim and the victim’s family that the 

defendant committed crimes more severe than those to which he pleaded guilty. On 

appeal, the Supreme Court of Delaware affirmed the sentence. The Court held that, 

so long as such information is not demonstrably false or lacks a minimal indicium 

of reliability, a sentencing court has broad discretion in determining what 

information to rely on from a presentence report.23 The fact that such evidence was 

not admissible at trial does not prohibit a sentencing judge from considering such 

21 State’s Opposition at Ex. E.

22 604 A.2d 839 (Del. 1992).

23 Id. at 843.
10

evidence.24 Therefore, it was proper for the Court to consider the pieces of the 

notebook paper and the term given to the pages by the police at sentencing.

3. The Court Exhibited an Open Mind at Sentencing

Although not specifically raised in the Motion, Defendant indicates by certain 

references that the Court exhibited a closed mind during sentencing.25 There is no 

evidence in the record to support such a conclusion.

A judge must have an open mind for receiving all information related to 

sentencing.26 A judge sentences with a closed mind when the sentence is based on 

a preconceived bias without consideration of the nature of the offense or the 

character of the defendant.27

Prior to Defendant’s sentencing on December 17, 2021, the Court reviewed 

sentencing memoranda from the State and Defendant, reviewed Defendant’s PSI, 

conducted a thorough Guilty but Mentally Ill hearing during which the Court 

reviewed expert reports from two doctors, and held a sentencing hearing where the 

Court heard the victim’s impact statement and Defendant’s allocution. After hearing 

the sentencing recommendations from the State and Defendant, the Court recessed 

to consider all of the information before ordering Defendant’s sentence.

24 Id. at 842, n. 5.

25 See Motion at Footnote 1.

26 Weston v. State, 832 A.2d 742, 746 (Del. 2003).

27 Id.
11

The sentence ordered by the Court was based on the nature of Defendant’s 

crimes, the recommendations and supporting explanations by both parties, the 

mitigating factors presented by Defendant and the PSI, and the relevant aggravating 

factors present in this case. The Court had an open mind for receiving all of the 

information offered. Thus, the Court did not exhibit a closed mind during 

sentencing. 

CONCLUSION

Defendant’s sentence was issued after considering all relevant and permissible 

information. Defendant’s sentence is within statutory limits and SENTAC 

guidelines. Defendant’s sentence is, therefore, appropriate and Defendant’s Motion 

for Correction of Sentence is Denied.

IT IS SO ORDERED.