IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) )

v. ) ID No. 1805010686 ) SHAUN C. BINGHAM

, ) ) Defendant. )

Date Submitted: April 17 , 2020 Date Decided: May 20

, 2020

ORDER

U pon consideration of Defendant’s Motion for Modification of Sentence

(“Motion”)

, Superior Court Criminal Rule 35, statutory and decisional law, and the

record in this case, IT APPEARS THAT:

1. On January 7 , 2019 , Defendant pled guilty to Robbery First Degree,

Robbery Second Degree, and Attempted Robbery Second Degree. 1 By Order dated

May 10, 2019, 2 effective May 18, 2018, Defendant was sentenced as follows: for

Robbery First Degree, IN18

- 05

- 1109, 10 years at Level V Key , suspended after 5

years, for 1 year at Level IV Crest, upon successful completion at Level IV Crest, 1

year at supervision at Level III Crest Aftercare; 3 for Robbery Second Degree, IN18

-

05

- 1099, 5 years at Level V, suspended after 15 months, for 1 year at supervision

1 D.I. 8.

2 D.I. 10.

3 The first 5 years of this sentence is a mandatory term of incarceration pursuant to 11 Del. C. § 832.2

Level III; a nd for Attempted Robbery Second Degree, IN18

- 05

- 1100, 5 years at

Level V, suspended after 15 months, for 1 year at supervision Level III. 4

2

. On April 17, 2020, Defendant filed the instant Motion, asking the Court

to suspend his Level V sentence s in IN18

- 0 5

- 1099 and IN 18

- 05

- 1100 and allow him

to begin the Crest Program at Level IV. 5 In support of his Motion, Defendant cites

to his completion of a 12

- week anger management, substance abuse, and mental

health program, the support of his family, and his desire to continue treating his

substance abuse addiction. 6

3

. Superior Court Criminal Rule 35 governs motions for modification of

sentence. “Under Rule 35(b), a motion for sentence modification must be filed

within ninety days of sentencing, absent a showing o f ‘extraordinary

circumstances.’” 7 T he Court will not consider repetitive requests for reduction or

modification of sentence. 8

4. Defendant filed this Motion well beyond the 90

- day limit, and therefore

the Motion is time

- barred. The Court will conside r an application made more than

4 All prob ation is concurrent. Defendant’s sentence also required mandatory Substance Abuse Treatment at Levels V, IV, and III. See D.I. 10.

5 D.I. 13.

6 Id.

7 Croll v. State

, 2020 WL 1909193, at *1 (Del. Apr. 17, 2020) (TABLE) (affirming the Superior Court’s denial of a motion for modification of sentence where the motion was repetitive and filed beyond the 90

- day limit); see Hewett v. State , 2014 WL 5020251, at *1 (Del. Oct. 7 , 2014) (“When a motion for reduction of sentence is filed within ninety days of sentencing, the Superior Court has broad discretion to decide whether to alter its judgment.”).

8 Super. Ct. Crim. R. 35(b).3

90 days after the imposition of sentence only in “extraordinary circumstances,” or

pursuant to 11 Del. C. § 4217. Delawa re law places a heavy burden on the moving

party to establish extraordinary circumstances in order to “ uphold the finality of

sentences.” 9 “Extraordinary circumstances” excusing an untimely Rule 35(b)

motion are circumstances that “specifically justify the delay, are entirely beyond a

petitioner’s control, and have prevented the applicant from seeking the remedy on a

timely basis.” 10 Mitigating factors that could have been presented at sentence,

exemplary conduct or successful rehabilitation while incarcerated does not

constitute “extraordinary circumstances.” 11 The Court does not find the existence of

any extraordinary circumstances in connection with Defendant’s Motion

.

5. In addition, this is Defendant’s second request to modify his sentences

under Rule 35(b), and therefore, Defendant’s Motion is barred as repetitive. 12

6

. The Court finds the Defendant’s sentence s are appropriate for all the

reasons stated at the time of sentencing. No additional information has been

provided to the Court that would warrant a reduction of modification of this

sentence.

9 State v. Diaz , 2015 WL 1741768, at *2 (Del. Apr. 15, 2015).

10 State v. Culp , 152 A.3d 141, 145 (Del. 2016) (internal quotations omitted) (quoting Diaz , 2015 WL 1741768, at *2).

11 See id. at 145

– 46 (recognizing that participation in educational and rehabilitative prison programs is commendable, but doe s not by itself constitute “ extraordinary circumstanc es” for purposes of Rule 35(b)).

12 See D.I. 11.4

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

Motion for Modification of Sentence is DENIED

. 

# Jan R. Jurden

Jan R. Jurden, President Judge

Original to Prothonotary

cc: Shaun C. Bingham (SBI# 00574490 ) Dominic A. Carrera

, DAG