IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

)

STATE OF DELAWARE )

) I.D. No. 1204019391

v. ) 1205020519

)

KEVIN L. PRIEST )

)

Defendant )

Submitted: August 1 , 2014

Decided: October 6

, 2014

O n Defendant’s Motion to Have Concurrent Sentence of Imprisonment

Imposed

. DENIED

.



## ORDER

Matthew B. Frawley , Esquire, Deputy Attorney General, Department of

Justice, Wilmington, Delaware, Attorney for the State

Kevin L. Priest , Smyrna , Delaware, pro s e

COOCH, R.J.

This 6th day of October

, 201 4 , upon consideration of Defendant’s

Motion to Have Concurrent Sentence of Imprisonment Imposed, it appears

to the Court that:

1. Defendant Kevin L. Priest pled guilty to two counts of drug

dealing in July 2012. In September 2012, Defendant was

sentenced as a habitual offender to a total of 9 years at Level V,

suspended after 5 years for eighteen months at Level IV,2 suspended after six months with the balance to be served on

Level III probation. 1

2. Defendant file d a Motion for Correction of Sentence in

November 2013 , requesting that this allow him to serve a

portion of his sentence on work release after completion of a

treatment program

. 2 That motion was subsequently denied by

this Court. 3

3. Defendant filed the in stant “Motion of a Formal Letter,” on

August 1, 2014. In his filing, Defendant requests , pursuant to

the amendments to 11 Del. C . 3901, that this Court amend his

sentence and allow his two sentences to run concurrently, rather

than consecutively. 4

4. As ame nded, Section 3901(d) provides in part: “ The court shall

direct whether the sentence of confinement of any criminal

defendant by any court of this State shall be made to run

concurrently or consecutively with any other sentence of

confinement imposed on su ch criminal defendant.” 5

5. Delaware case law is well settled on this point, and provides

that “ 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.” 6

1 See Docket #16 (Sept. 21, 2012). On the first count, Defendant was sentenced to three

years at Level V with cre dit for eighty

- eight days served. On the second count, Defendant

was sentenced to six years at Level V, suspended after two years for eighteen months at

level V, suspended after six months for the balance to be served on Level III probation.

2 See Def.’s Motion for Correction of Sentence at 1.

3 See Docket #18 (Nov. 13, 2013); Docket #19 (Nov. 18, 2013).

4 Def.’s Motion at 1. H.B. 312, the source of the authority that Defendant argues gives

this court the ability to revise his sentences, amends 11 Del. C

. 3901 in part.

5 11 Del. C. § 3901(d).

6 State v. Ismaaeel , 840 A.2d 644 (Del. Super. 2004) ( quoting State v. Nixon , 46 A.2d

874, 875 (Del. Gen. Sess. 1946)) (internal quotation marks omitted)

.3 6. This Court finds t hat Section 3901(d), as amended does not

have retroactive effect. 7 As a result, Defendant’s September

2012 sentence s on the two counts of drug dealing to which he

pled guilty cannot be revisited under 3901(d).

T herefore, Defendant’s Motion to Have Concurrent Sentence of

Imprisonment Imposed is DENIE D.

IT IS SO ORDERED.

_ ______________________ Richard R. Cooch, R.J.

c c: Prothonotary

Investigative Services

Matthew B. Frawley, Esquire

Kevin L. Priest

7 See State v. Jennings , 2014 WL 3943089, at *1 (Del. Super. Aug. 11, 2014) (finding

“Section 3901(d), as amended, was not intended by the Delaware General Assembly to

have a retroactive effect.”).