IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

)

)

v. ) ID No. 1607005177

) 

 )

EDWARD L. POWELL, )

)

 Defendant. )

Submitted: August 9, 2017

Decided: September 27, 2017

Corrected: October 2, 2017

ORDER DENYING MOTION TO REDUCE OR MODIFY SENTENCE

This 27th day of September, 2017, upon consideration of the Defendant Eric 

L. Powell’s Motion for Sentence Reduction or Modification (D.I. 19), and the record 

in this matter, it appears to the Court that:

(1) On January 30, 2017, Defendant Edward L. Powell (“Powell”) pled 

guilty to one count each of Possession of a Deadly Weapon by a Person Prohibited 

and Endangering the Welfare of a Child.1 His sentencing occurred several months 

later, on May 9, 2017.

2

 Powell was sentenced: for Possession of a Deadly Weapon 

 1 Plea Agreement, State v. Powell, ID No. 1607005177 (Del. Super. Ct. Jan. 30, 2017) (D.I. 

11). 

2 See Sentencing Order, State v. Powell, ID No. 1607005177 (Del. Super. Ct. May 9, 2017) 

(D.I. 18). 
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by a Person Prohibited (IN16-07-1202) – 2 years at Level V, suspended after six 

months at supervision Level V for one year and six months at Level IV (DOC 

Discretion), suspended after six months at Level IV for one year at Level III, to be 

served under the provisions of the Habitual Criminal Act;3 and for Endangering the 

Welfare of a Child (IN16-07-1489) – 1 year at Level V suspended for 1 year at Level 

II (DOC Discretion).

(2) Powell filed no direct appeal from his convictions or sentence. 

(3) Instead, he docketed the present motion under Superior Court Criminal 

Rule 35(b)4 requesting: (a) that he be released from Level V; and (b) that he be held 

at Level III until Level IV is available. According to Powell, his term of 

imprisonment should be reduced and his terms of confinement modified because: 

(a) his family needs his support; (b) he requires medical care; (c) he is concerned he 

will lose his home after certain missed payments; (d) he received ineffective 

 3 DEL. CODE ANN. tit. 11, § 4214(a) (2016) (providing that a person who has been thrice 

previously convicted of a felony and is thereafter convicted of another felony may be declared an 

habitual criminal; the Court may then, in its discretion, impose a sentence of up to life 

imprisonment for any subsequent felonies); id. at § 4214(e) (allowing for a suspension of a portion 

of a habitual criminal sentence imposed under now-existing § 4214(a)).

 

4 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 condition of partial confinement or probation); 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.”).
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assistance of counsel;

5 and (e) he has had difficulty thus far coordinating the terms 

of his Level IV confinement.

(4) The Court may consider such a motion “without presentation, hearing 

or argument.”6

 The Court will decide this motion on the papers filed.7

(5) 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 

 5 Powell’s ineffective assistance of counsel claim premised on his trial counsel’s failure to 

file a Rule 35(b) motion is of no moment here. Powell has no right to the appointment of counsel 

to pursue a sentence reduction motion under Rule 35. Rather, whether counsel be appointed or 

retained, her duties of representation generally end upon direct appeal. See Super. Ct. Crim. R. 

44(a) (providing for assignment of counsel “at every stage of the proceedings from initial 

appearance . . . through appeal”); Del. Supr. Ct. R. 26(a) (providing that trial court counsel has a 

general duty to docket a direct appeal “whenever the client desires to appeal” and to “continue to 

represent the client on appeal”). 

And besides, the Court is considering Powell’s timely pro se Rule 35(b) motion on the merits. So 

he can hardly claim prejudice. See Alston v. State, 2015 WL 5297709, at *3 (Del. Sept. 4, 2015) 

(even in a proceeding where a claim of ineffective assistance of counsel is cognizable, the inmate

“must make specific allegations of how defense counsel’s conduct actually prejudiced the 

proceedings, rather than mere allegations of ineffectiveness”); see also Ploof v. State, 75 A.3d 811, 

825 (Del. 2013) (“Strickland [v. Washington, 466 U.S. 668, 694 (1984)] is a two-pronged test, and 

there is no need to examine whether an attorney performed deficiently if the deficiency did not 

prejudice the defendant.”); Swan v. State, 28 A.3d 362, 383 (Del. 2011) (observing that Strickland 

requires that an inmate make both showings – deficient performance and prejudice – and “‘[i]f it 

is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . 

that course should be followed.’”) (quoting Strickland, 466 U.S. at 697).

6 Super. Ct. Crim. R. 35(b). 

7 When considering motions for sentence modification, this Court addresses any applicable 

procedural bars before turning to the merits. State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 

2015). There are no procedural bars to consideration of Powell’s request under Rule 35(b).

8

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

(6) The Court has fully reviewed Powell’s application, the record in his 

case, his prior supervision history, and all sentencing information available. The 

Court noted the following aggravators in its Sentencing Order: (a) Powell’s 

repetitive criminal activity and statutory habitual criminal offender status; (b) “the 

vulnerability of the children victims who witnessed [Powell]’s behavior”; and (c) 

“that . . . it would unduly depreciate the nature and demonstrate[d] circumstances of 

this offense and [Powell]’s history of endangering others to impose a lesser 

sentence.”11 The Court finds that when all sentencing factors in his case are 

considered, Powell’s family and changed residential circumstances do not warrant 

sentence reduction here. Nor does Powell allege sufficient grounds for his claim of 

inadequate medical treatment. Instead, after a thorough review of the merits of 

Powell’s request, the Court finds its original sentencing judgment as to the Level V 

 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. Remedio, 108 A.3d 326, 331 (Del. Super. Ct. 2014) (internal citations and 

quotations omitted) (such a request is essentially a plea for leniency: an appeal to the sentencing 

court to reconsider and show mercy). 

11 See Sentencing Order at 4.
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term for Powell’s Possession of a Deadly Weapon by a Person Prohibited conviction 

appropriate for the reasons stated at the time it was rendered. The Court further 

finds its judgment as to the structure of the non-incarcerative terms of Powell’s 

sentence remains integral to the Court’s “sentencing scheme” or “plan” in Powell’s 

case.12

(7) In turn, the Court will exercise its discretion13 under Rule 35(b) and 

DENY Powell’s request to reduce or modify the Level V, IV and III terms of his 

sentence.

 SO ORDERED this 27th day of September, 2017.

/s/ Paul R. Wallace 

Paul R. Wallace, Judge

Original to Prothonotary

cc: Amanda DiLiberto, Deputy Attorney General 

Kathryn A.C. van Amerongen, Esquire

Mr. Edward L. Powell, pro se

Investigative Services Office

 12 See Defoe v. State, 750 A.2d 1200, 1202 (Del. 2000).

13 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.”); Kiser 

v. State, 2010 WL 5141242, at *1 (Del. Dec. 10, 2010) (same for motion that seeks reduction or 

modification of partial confinement).