IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, 

v. 

KEVIN MCCRAY, 

Defendant.

)

)

)

)

)

)

)

)

)

I.D. # 0208020744

Submitted: January 2, 2024

Decided: March 1, 2024

ORDER DENYING KEVIN MCCRAY’S

MOTION FOR SENTENCE MODIFICATION

1. After his arrest for a string of robberies, Kevin McCray (“McCray”)

plead guilty to two counts of Robbery First Degree and one count of Possession of 

a Firearm During the Commission of a Felony (“PFDCF”). He was sentenced on 

December 5, 2003 as follows: as to the first count of Robbery First Degree, 8 years 

Level V, the first four of which were mandatory; as to the second count of Robbery 

First Degree, 20 years Level V, suspended after 8 years, followed by declining levels 

of supervision; and as to the PFDCF count, 10 years at Level V.1 McCray was 

ordered to pay restitution to the three institutions he robbed, in the total amount of 

$58,198.26.2

1 D.I. 10.

2

Id.
2

2. McCray has filed a series of motions for post-conviction relief, and 

sentence modification, which were denied.3

3. Currently pending is McCray’s Motion to Reduce or Abate all Court 

Fines and Restitution (the “Motion”).4 McCray argues that due to the amount of 

time he has served, his age, disability, and homelessness status once he is released 

from Level V, and that he is not likely to reoffend, payment of the Court ordered 

restitution would be a hardship. Therefore, he seeks to be relieved of this obligation.5

4. Superior Court Criminal Rule 35(b) provides that the Court “may 

reduce a sentence of imprisonment on a motion made within 90 days after the 

sentence is imposed.” The Court will consider a Rule 35(b) motion after the 90-day 

period “only in extraordinary circumstances” or when the DOC has filed a motion 

pursuant to 11 Del. C. § 4217. Under Rule 35(b), the Court may consider reducing 

the term or conditions of partial confinement or probation at any time. Rule 35(b), 

however, further provides that the Court “will not consider repetitive requests for 

reduction of sentence.” (emphasis added).

5. Because McCray does not seek to reduce his Level V sentence, but to 

modify his restitution, his request is not time-barred. However, the bar to 

3

See D.I. 19, 20, 86 (denying motions for post-conviction relief); 95, 97 (denying motions for 

sentence modification).

4 D.I. 98.

5

Id.
3

considering repetitive requests for modification of a sentence is absolute.6 This 

procedural bar applies even when the subsequent motion requests a reduction or 

modification of a term of partial confinement or probation.7 McCray previously 

filed at least two motions, none of which modified his sentence. Therefore, the 

Motion is barred as repetitive.

6. Even if the Court considered the merits of the Motion, it would not be 

granted. McCray presented no additional information that would warrant a reduction 

or modification of this sentence. Accordingly, the Motion is DENIED.

IT IS SO ORDERED.

/s/Kathleen M. Miller

Judge Kathleen M. Miller 

6

State v. Burton, 2020 WL 3057888, at *2 (Del. Super. June 5, 2020) (The bar to considering 

repetitive motions has no exceptions). See also Jenkins v. State, 954 A.2d 910, 2008 WL 2721536, 

at *1 (Del. 2008) (TABLE) (affirming the Superior Court’s denial of defendant’s Rule 35(b)

motion for modification where Rule 35(b) “prohibits the filing of repetitive sentence reduction 

motions.”); Morrison v. State, 846 A.2d 238, 2004 WL 716773, at *2 (Del. 2004) (TABLE) 

(finding that defendant’s Rule 35(b) motion for modification “was repetitive, which also precluded 

its consideration by the Superior Court.”).

7 Burton, 2020 WL 3057888, at *2; State v. Pryor, 2023 WL 3496289, *2 (Del. Super. May 17, 

2023).