SUPERIOR COURT

OF THE

STATE OF DELAWARE

PAUL R. WALLACE

JUDGE

NEW CASTLE COUNTY COURTHOUSE

500 N. KING STREET, SUITE 10400

WILMINGTON, DELAWARE 19801

(302) 255-0660

Date Submitted: May 6, 2021

Date Decided: June 15, 2021 

Mr. Mark H. Davis

SBI No. 00155091

Howard R. Young Correctional Institution

1301 East 12th Street

Wilmington, Delaware 19809

Mr. William L. Raisis, Esquire

Deputy Attorney General

Carvel State Office Building

820 N. French Street, 7th Floor

Wilmington, Delaware 19801 

RE: State v. Mark H. Davis

ID. No. 1911011582

Motion for Reduction or Modification of Sentence

Dear Messrs. Davis and Raisis:

The Court is in receipt of: (1) Mr. Davis’s request to reduce his sentence (D.I.

7); its supplement requesting a specific order related to the sentencing condition 

requiring a substance abuse and mental health evaluation (D.I. 8); and, (3) the State’s 

response to those two filings (D.I. 10). 

PROCEDURAL HISTORY

On June 26, 2020, Mr. Davis was before the Court after pleading guilty to 

burglary in the second degree. For that conviction, he was sentenced to serve eight 

years at Level V, suspended after seven years (to be served under the provisions of 

11 Del. C. § 4204(k)) for one year at Level IV-DOC Discretion, suspended after six 

months for six months at Level III-TASC.1 The sentence’s effective date is February 

1 Sentencing Order, State v. Mark H. Davis, ID No. 1911011582 (Del. Super. Ct. Jun. 26, 2020) 

(D.I. 6). 
State v. Mark H. Davis

ID No. 1911011582

June 15, 2021

Page 2 of 7

27, 2020; and Mr. Davis is to held at Level V until the Level IV placement becomes 

available.2 One condition of his sentence is that Mr. Davis be evaluated by the 

Delaware Treatment Access Center (TASC) for substance abuse and mental health 

treatment needs. The Court also noted that it would retain jurisdiction over this 

sentence “for the express purpose of modification consistent with any treatment 

recommendation made by TASC or the Department of Correction, but for no other 

purpose.”3 

Mr. Davis filed no direct appeal from his conviction or sentence. But he did 

almost immediately docket a motion under Rule 35(b) seeking reduction of his 

Level V term.

4

 Mr. Davis has since also filed what the Court would deem a 

supplementary request for a specific order as to the timing of his substance abuse 

and mental health evaluation.

5

 

The Court may consider such a request “without presentation, hearing or 

argument.”6 When considering motions for sentence reduction or modification, this 

2 Sentencing Order, at 1-2.

3 Sentencing Order, at 3.

4

 Def. Rule 35(b) Mot. (D.I. 7). See Super. Ct. Crim. R. 35(b) (providing that, under certain 

conditions, the Court may reduce a sentence of imprisonment on an inmate’s motion; providing 

also that the Court may reduce a term or the conditions of partial confinement or probation); see 

also Jones v. State, 2003 WL 21210348, at *1 (Del. May 22, 2003) (“There is no separate 

procedure, other than that which is provided under Superior Court Criminal Rule 35, to reduce or 

modify a sentence.”).

5 D.I. 8.

6 Super. Ct. Crim. R. 35(b). 
State v. Mark H. Davis

ID No. 1911011582

June 15, 2021

Page 3 of 7

Court addresses any applicable procedural bars before turning to the merits.7 As Mr. 

Davis’s motion is his first and was timely filed, the Court finds there are no Rule 

35(b) procedural bars to the consideration of his request for reduction of his 

imprisonment term. 

MR. DAVIS’S REQUEST TO REDUCE HIS PRISON TERM

The purpose of Superior Court Criminal Rule 35(b) historically has been to 

provide a reasonable period for the Court to consider alteration of its sentencing 

judgments.8 Where a motion for reduction of sentence of imprisonment is filed 

within 90 days of sentencing, the Court has broad discretion to decide if it should 

alter its judgment.9 “The reason for such a rule is to give a sentencing judge a second 

chance to consider whether the initial sentence is appropriate.”10

The Court has examined Mr. Davis’s claim—i.e., his request that the Court 

reconsider and decide if, on further reflection, its sentence now seems unduly 

harsh—on the merits. Under every iteration of Delaware’s criminal rules governing 

motions to reduce or modify sentences, such entreaties are addressed to the sound 

discretion of this Court.11

7

State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015). 

8

 Johnson v. State, 234 A.2d 447, 448 (Del. 1967) (per curiam).

9 Hewett v. State, 2014 WL 5020251, at *1 (Del. Oct. 7, 2014) (“When, as here, 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.”).

10

 State v. Reed, 2014 WL 7148921, at *2 (Del. Super. Ct. Dec. 16, 2014) (collecting cases that 

observe that such a request is essentially a plea for leniency: an appeal to the sentencing court to 

reconsider and show mercy.).

11 Hewett, 2014 WL 5020251, at *1. See also Shy v. State, 246 A.2d 926 (Del. 1968); Lewis v. 

State, 1997 WL 123585, at *1 (Del. Mar. 5, 1997).
State v. Mark H. Davis

ID No. 1911011582

June 15, 2021

Page 4 of 7

Mr. Davis insists reduction of imprisonment should be granted because, in his 

view, the Court failed to give adequate consideration to: (1) his learning and/or 

intellectual challenges; (2) his struggles with substance abuse; (3) his alleged lack 

of a violent criminal history; and, (4) his remorse.12

At bottom, Mr. Davis asks that the Court reweigh mitigating circumstances 

he believes were present at the time of his sentencing hearing and reduce his term of 

imprisonment. “A request for leniency and reexamination of the sentencing factors 

is precisely the stuff of which a proper and timely Rule 35(b) motion is made.”13

Given this, the Court has fully reviewed Mr. Davis’s Rule 35 application, the 

record in his case, his prior criminal and supervision history, and all sentencing 

information available. 

The Court first carefully weighed the applicable aggravators and mitigators 

before imposing its sentence last year. And the Court made it clear then that it had 

considered Mr. Davis’s presentation and reviewed all the favorable sentencing 

materials he provided prior to his sentencing hearing.14 Mr. Davis is correct: his 

12 Def.’s Rule 35(b) Mot., at 5. You make reference also to the United States Sentencing 

Guidelines, recent changes to 11 Del. C. § 3901(d), and the standards for enhancement of statutory 

maximums. Id. at 2. Not one of those is applicable in your case. But, the Court has given your 

application the most liberal reading possible to determine if there any arguable “illegality” in your 

sentence. The Court sees none. See Brittingham v. State, 705 A.2d 577, 578 (Del. 1998) (relief 

from an “illegal” sentence under Rule 35(a) is available when, inter alia, the sentence imposed: 

exceeds the statutorily-authorized limits; omits a term required to be imposed by statute; is 

uncertain as to its substance, or is a sentence that the judgment of conviction did not authorize.). 

13

 State v. Remedio, 108 A.3d 326, 331-32 (Del. Super. Ct. 2014) (emphasis in original).

14 Sentencing Hearing Transcript, State v. Mark H. Davis, ID No. 1911011582 (Del. Super. Ct. 

Jun. 26, 2020), at 9-13 (D.I. 11). 
State v. Mark H. Davis

ID No. 1911011582

June 15, 2021

Page 5 of 7

sentence imposed exceeds the applicable SENTAC guidelines. But that gets him 

just so far in his plea for relief here.

15

 

There is no doubt that each of the aggravators cited by the Court at the 

sentencing hearing and in its sentencing order16 are well-supported by the record. 

And there is no doubt those aggravating circumstances—Mr. Davis’s extensive 

criminal history with two prior declarations of statutory habitual criminality, that 

there were both elderly people and juveniles victimized by his crime, and, the finding 

that any lesser sentence would unduly depreciate the nature of that crime and its 

effects on the victim family17—can reasonably be seen to carry considerably greater 

weight than the mitigators Mr. Davis has invoked for decades but done not nearly 

enough to address. 

The Court finds that when those aggravators and all other sentencing factors 

15 State v. Comeger, 2015 WL 74260, at *2 (Del. Super. Ct. Jan. 5, 2015) (“The fact that a portion 

of the sentence imposed exceeds SENTAC guidelines does not provide a legal or constitutional 

basis to attack this sentence that is otherwise within statutory limits. It is, however, a proper factor 

for the Court weigh when, as here, it is considering a timely Rule 35(b) motion.” (cleaned up)). 

16 See DEL. CODE ANN. tit. 11, § 4204(n) (2020) (“Whenever a court imposes a sentence 

inconsistent with the presumptive sentences adopted by the Sentencing Accountability 

Commission, such court shall set forth on the record its reasons for imposing such penalty.”); DEL.

SUPR. CT. ADMIN. DIR. 76 (Sep. 15, 1987) (“Any judge who finds a particular sentencing standard 

inappropriate in a particular case because of the presence of aggravating or mitigating or other 

relevant factors need not impose a sentence in accordance with the standards but such judge shall 

set forth with particularity the reasons for the deviation . . .”); SENTAC Policy No. 29, DELAWARE 

SENTENCING ACCOUNTABILITY COMMISSION, Benchbook 2020, at 28 (providing, in relevant part,

that sentences of incarceration conditioned by § 4204(k) should be imposed only in “exceptional 

circumstances”); SENTAC Policy No. 30, DELAWARE SENTENCING ACCOUNTABILITY 

COMMISSION, Benchbook 2020, at 28 (“Since imposition of a sentence pursuant to 11 Del C., sec 

4204(k) is, in effect, a departure from the presumptive sentencing guidelines; the reason for use of 

Sec. 4204(k) must be stated on the record and included in the sentencing order.”). 

 

17 Sent. Hrg. Tr., at 13-20; Sentencing Order, at 4.
State v. Mark H. Davis

ID No. 1911011582

June 15, 2021

Page 6 of 7

in Mr. Davis’s case are reconsidered, the circumstances he posits in his Rule 35(b) 

application do not warrant a sentence reduction here. Instead, after a thorough 

review of the merits of Mr. Davis’s request, the Court finds its original sentencing 

judgment is appropriate for the reasons stated at the time it was rendered.

Accordingly, the Court will exercise its discretion under Rule 35(b)18 and 

DENY this request to reduce Mr. Davis’s seven-year term of imprisonment.

MR. DAVIS’S REQUEST FOR AN IMMEDIATE TASC EVALUATION

Lastly, as to Mr. Davis’s suggestion that the Court should order that TASC 

complete its evaluations immediately while he is at Level V, it was the Court’s intent 

that all necessary evaluations and treatment recommendations would be carried out 

at the time and by the entity most appropriate. That is, that the Department of 

Correction would, as it regularly does, complete its assessments of Mr. Davis while 

at Level V and assign Mr. Davis to the housing and program placements best suited 

to his treatment and rehabilitative needs and the length of his Level V sentence. 

The placement of Davis in any specific program, however, is at the sole 

discretion of the Department of Correction. And indeed, the Department may engage 

TASC’s assistance with Mr. Davis’s evaluation and treatment while at Level V. But 

the Department is not required to do so. To the extent Mr. Davis claims otherwise—

that the Court’s sentencing order requires that he must receive a specific TASC 

evaluation while at Level V and assignment to a TASC-named rehabilitative or 

treatment program while at Level V—he cites no authority for that proposition. It is 

18 Rondon v. State, 2008 WL 187964, at *1 (Del. Jan. 15, 2008) (“The merit of a sentence 

modification under Rule 35(b) is directed to the sound discretion of the Superior Court.”); Hewett, 

2014 WL 5020251, at *1.
State v. Mark H. Davis

ID No. 1911011582

June 15, 2021

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wholly appropriate for the Court to leave such Level V (and Level IV) classification 

and placement decisions to the Department of Correction.19 And as the Court has 

ordered here, it is the Court’s expectation that TASC will work with the Department 

to address Mr. Davis’s continued treatment needs once he begins the community 

supervision component of his sentence.

CONCLUSION

For the above reasons, Mr. Davis’s request for a reduction of his prison term 

is DENIED. He must serve the seven years the Court has ordered. 

To alleviate any confusion on Mr. Davis’s part over his substance abuse and 

mental health evaluations, the Court will enter a modified sentencing order 

forthwith. And so, as to Mr. Davis’s second request through this application, that 

prayer is GRANTED, in part, and DENIED, in part. 

IT IS SO ORDERED.

Paul R. Wallace, Judge

Original to Prothonotary

cc: Gregory E. Smith, Deputy Attorney General

 Investigative Services Office

19 See Samans v. Dept. of Correction, 2015 WL 1421411, at *2 (Del. Mar. 27, 2015) (“Inmates do 

not have a right to a particular prison classification and placement of inmates within the prison 

system is within the wide spectrum of discretionary actions that traditionally have been the 

business of prison administrators, rather than of the courts.” (cleaned up)); State v. Goodman, 2010 

WL 547394, at *2 (Del. Super. Ct. Feb. 9, 2010) (observing that “[c]ourts are generally very 

reluctant to interfere with the administration of prisons”).