IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE )

 )

v. ) ID No. 0109020376

 ) 

SHACIN PATEL, )

Defendant. )

ORDER GRANTING MOTION TO MODIFY SENTENCE

Upon consideration of the motion for modification of sentence of Defendant 

Shacin Patel, as well as Rule 35 of the Superior Court Rules of Criminal 

Procedure; the facts, arguments and legal authorities set forth in the Rule 35 

Motion; statutory and decisional law; and the entire record in this case, the Court 

finds as follows: 

1. The Delaware State Police arrested Shacin Patel on September 29, 

2001 and charged him with Theft Over $1000 (a felony), Conspiracy Second 

Degree (a felony), and Civil Contempt (a misdemeanor).

1

 Mr. Patel’s arrest came 

as the result of stealing 350 phone cards from a Sunoco gas station. Mr. Patel was 

20 years old at the time of the offense.

2. A Grand Jury indicted Mr. Patel on December 3, 2001 on both 

felonies. Mr. Patel’s trial began on June 25, 2002 but ended in a mistrial. The 

 1 The Civil Contempt charge was later dismissed.
State retried Mr. Patel on December 10, 2002 and the jury returned a guilty verdict 

on both counts on December 11, 2002. 

3. The Court immediately sentenced Mr. Patel as follows:

• Theft Over $1000: 18 months Level V, suspended immediately for 18 

months Level II.

• Conspiracy Second Degree: 6 months Level V, suspended 

immediately for 6 months Level II.

• The Court also ordered Mr. Patel to pay restitution in the amount of 

$2,250.00. 

4. On April 16, 2004, Commissioner Vavala discharged Mr. Patel’s 

restitution obligations, noting that Mr. Patel had paid “a lot” of the amount owed.

5. The Court discharged Mr. Patel from probation on May 6, 2004.

6. Mr. Patel is originally from London, England, but has been a Lawful 

Permanent Resident of the United States since 1994. He is currently in removal 

proceedings from the United States and is being charged with being a deportable 

and inadmissible alien because he has been convicted of an “aggravated felony.” 

An aggravated felony can result in mandatory detention, deportation, and, most 

importantly, bars eligibility for relief from these penalties.

7. A theft conviction with a sentence of one year or more is an 

“aggravated felony” for immigration purposes.2

 Under federal law, a sentence is 

 2 Immigration and Nationality Act (“INA”) § 101(a)(43)(G); 8 U.S.C. § 1101(a)(43)(G)(2000).
defined as the “period of incarceration or confinement order by a court of law, 

regardless of suspension of the imposition or execution of that imprisonment in 

whole or in part.”3

8. Mr. Patel’s only means to prevent deportation in this scenario is 

through an application for cancellation of removal; however, Mr. Patel’s 

aggravated felony precludes him from this form of relief. As such, he faces 

imminent deportation. 

9. However, modifying Mr. Patel’s “term of imprisonment” to below

one year eliminates his “aggravated felony” status for immigration purposes.4

10. Under Superior Court Criminal Rule 35(b), this Court may entertain a 

motion to modify or reduce a sentence after the 90 day deadline imposed by the 

rule if there are “extraordinary circumstances.”

11. Generally, once a sentence is complete, a conviction stands and may 

not be appealed or collaterally attacked. However, the Delaware Supreme Court 

has adopted the “federal rule,” which provides that “the satisfaction of the sentence 

renders the case moot unless, in consequence of the conviction or sentence, the 

defendant suffers collateral legal disabilities or burdens; in which event the 

defendant is considered to have a sufficient stake in the conviction or sentence to 

 3 INA § 101(a)(48)(B); 8 U.S.C. § 1101(a)(48)(B).

4 Matter of Oscar Costas-Vargas, 23 I&N Dec. 849, 852 (BIA 2005).
survive the satisfaction of the sentence and to permit him to obtain a review or 

institute a challenge.”5

11. In State v. Lewis, the Delaware Supreme Court held that the Superior 

Court has the authority to modify a sentence under Superior Court Criminal Rule 

35(b), even if the sentence has expired, if collateral consequences (such as 

deportation) attach to the sentence.6

12. Mr. Patel is well outside of the 90 day deadline to move this Court for 

a reduction or modification of his sentence but he meets the “extraordinary 

circumstances” exception and therefore is eligible for a modification or reduction 

of his sentence. Moreover, the State does not oppose the modification sought.

13. Mr. Patel’s 2002 sentence categorizes his conviction as an 

“aggravated felony” under federal law, which makes him eligible for deportation. 

The only way to pursue relief from deportation is to eliminate the aggravated 

felony from his record and petition the immigration court. A modification of his 

sentence to less than one year will accomplish this goal7 and reinstate his eligibility 

to challenge the immigration proceedings. 

14. Mr. Patel made a mistake 14 years ago as a 20 year old. Since then, 

he has worked hard to become a productive member of society. He works, pays 

 5 Gural v. State, 251 A.2d 344, 344-45 (Del. 1969).

6 797 A.2d 1198, 1199, 1202 (Del. 2002).

7 See Matter of Oscar Cota-Vargas.
his taxes, and provides for his family. Due to his father’s failing health, he is 

taking on the responsibility of running his family’s business and is the sole source 

of income for his wife and two parents.

15. Mr. Patel is facing deportation as the result of his theft conviction, and 

therefore suffers from a collateral disability or burden. Consequently, Mr. Patel 

has a stake in his conviction and sentence that allows him to survive the 

satisfaction of the sentence and to permit him to obtain a review or institute a 

challenge.8 

NOW, THEREFORE, this 9th day of October, 2015, the Motion for 

Modification of Sentence for Sachin Patel is hereby GRANTED. An amended 

sentencing order shall issue consistent with this opinion, modifying the sentence

imposed for theft to a period of ten (10) months.

IT IS SO ORDERED.

Andrea L. Rocanelli

_____________________________

The Honorable Andrea L. Rocanelli

 8 See Gural,251 A.2d at 344-45; Lewis, 797 A.2d at 1199.