IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

)

v. ) ID Nos. 2203013888

) 2210002346

JESSE C. KINCAID, )

)

Defendant. )

ORDER

1. On this 28th day of November, 2023, upon consideration of Defendant

Jesse C. Kincaid’s (“Defendant”) pro se Combined Motion for Sentence Reduction,

Motion for Postconviction Relief, and Motion for Credit for Time Previously Served 

(the “Motion”) made pursuant to Superior Court Rules of Criminal Procedure 35(b)

and 61,

1

the sentence imposed upon Defendant, and the record in this case, it appears 

to the Court that:

2. On February 27, 2023, Defendant pled guilty to Stalking (Class F Felony),

Criminal Contempt of a Domestic Violence Protective Order (Class A 

Misdemeanor), and Non-Compliance with Bond Conditions (Class G Felony).2

3. On May 19, 2023, Defendant was sentenced to the following: (1) for the

Stalking charge, three years of Level V supervision, suspended after one year for six 

1 D.I.s 2203013888-26, 2210002346-17. Defendant does not specifically cite to Rules 35(b) and 

61 in the Motion, but he asks this Court to reduce his sentence and challenges his guilty plea based 

on ineffective assistance of counsel.

2 Defendant’s case is currently pending appeal at the Delaware Supreme Court. See Notice of 

Appeal, Kincaid v. State, C.A. No. 211, 2023D (Del. Oct. 24, 2023). His case file remains at that 

court. Accordingly, without access to this file, this order lacks most Docket Item numbers and 

citations.
2

months of Level IV supervision, followed by one year and six months of Level III 

GPS-monitored supervision; (2) for the Criminal Contempt charge, one year of 

Level V supervision, followed by one year of Level III supervision;3and (3) for the 

Non-Compliance charge, two years of Level V supervision, suspended after one year 

for three years of Level III supervision.

4. As part of Defendant’s sentence, the Court imposed conditions that require 

him to (1) receive mental health and substance abuse evaluations and comply with 

accompanying treatment recommendations; (2) complete a certified domestic 

violence intervention program; (3) refrain from contact with victim Lucy Boyd and 

her family and residence; and (4) refrain from unauthorized contact with victims

Austin Kincaid and Veronica Kincaid, Defendant’s children with Boyd, unless 

authorized by a Family Court order.

5. Defendant represents that on July 9, 2023, he transmitted the instant Motion 

to the Delaware Department of Justice. On August 15, 2023, this Court received the 

Motion.

4

6. First, Defendant argues that the charges against him would have been 

dismissed if his attorney had submitted certain documents to this Court and moved

3 Originally, in a May 19, 2023 order, the Court sentenced Defendant to one month of Level III 

supervision for the Criminal Contempt charge. In a June 9, 2023 order, the Court modified this 

sentence to twelve months of Level III supervision for the Criminal Contempt charge.

4 D.I.s 2203013888-26, 2210002346-17. On October 6, 2023, Defendant submitted a letter to this 

Court in support of the Motion. There, he states that his treatment has prepared him to succeed in 

society, that he plans to run a small business upon release, and that home confinement would be 

burdensome for him. D.I. 22100002346-18.
3

to prevent the transfer of his case from the Family Court to the Superior Court. He 

claims that his counsel improperly persuaded him to take the guilty plea.5

7. Defendant’s argument is in essence an ineffective assistance of counsel 

claim, part of his first motion for postconviction relief pursuant to Rule 61. When 

challenging a guilty plea, “a defendant has the burden of showing that, but for his 

counsel’s deficient performance, he would not have pleaded guilty and would have 

insisted on proceeding to trial.”6

8. On November 10, 2022, Defendant attested to this Court that his counsel 

had not threatened or forced him to enter a guilty plea and that he was satisfied with 

the representation. Then, on January 9, 2023, despite being represented by counsel, 

Defendant submitted a pro se motion to this Court to sever and dismiss the charges 

pending against him. On January 18, 2023, the Court returned these documents to 

Defendant’s counsel without docketing them because it does not consider pro se

applications from defendants who are represented by counsel. On January 26, 2023, 

Defendant’s counsel informed him that he could submit the motion if he advised her 

that he wished to proceed pro se and terminate the representation. On February 20, 

5 D.I.s 2203013888-26, 2210002346-17. Defendant also argues that the inclusion in discovery of 

images of injuries unfamiliar to Defendant prejudiced him because it implied that Defendant 

caused the injuries. Id. There was no trial or jury in this case, and Defendant pled guilty to the 

instant charges, so the inclusion of these images in discovery did not prejudice him here. No 

evidence shows that the Court based its sentencing decisions for Defendant’s Stalking, Criminal 

Contempt, and Non-Compliance charges on these images.

6 Collado v. State, 2011 WL 6826442, at *2 n.2 (Del. Dec. 22, 2011) (citing Albury v. State, 551 

A.2d 53 (Del. 1988)).
4

2023, the Court denied Defendant’s request to proceed pro se. On February 27, 

2023, he pleaded guilty to the charges against him. Defendant has presented no 

evidence, and the record does not reflect, that he would not have pleaded guilty but 

for his counsel’s allegedly ineffective performance.

9. Second, Defendant argues that the sentence imposed by this Court for his 

Stalking charge is excessive compared to the sentence recommended by Delaware 

Sentencing Accountability Commission (“SENTAC”) guidelines. For the Stalking 

charge, Defendant was sentenced on May 19, 2023, to three years of Level V 

supervision, suspended after one year for six months of Level IV supervision, 

followed by one year and six months of Level III GPS-monitored supervision. The 

statutory penalty for Stalking is from six months to three years of Level V

supervision, with a minimum mandatory sentence of six months of Level V 

supervision. SENTAC guidelines recommended up to seven months of Level V 

supervision. As Defendant acknowledges in the Motion, “sentencing guidelines are 

voluntary and are not binding on the sentencing court.”7 The Level V sentence 

imposed falls within statutory limits. Hence, Defendant has not shown that this 

Court abused its broad discretion in determining the proper sentence.

10. Third, Defendant argues that the Court should not have permitted the 

prosecution to read a victim impact statement at the sentencing hearing that was not 

7 Via v. State, 2001 WL 1142304, at *2 (Del. Sept. 19, 2001); D.I.s 2203013888-26, 2210002346-

17 (“The defendant acknowledges the court’s discretion.”).
5

previously submitted to the Court. A sentencing court has broad discretion to 

consider “information pertaining to a defendant’s personal history and behavior 

which is not confined exclusively to conduct for which that defendant was 

convicted,” including a victim impact statement.8 As 11 Del. C. § 4331(d) provides, 

“a victim impact statement shall be presented to the court prior to the sentencing of 

a convicted person.” The Court understands this provision to direct the Investigative 

Services Office to present such a statement to the Court prior to sentencing, rather 

than to impose any production obligation on the parties themselves. Further, 

Defendant did not object to the victim impact statement at sentencing. He did not 

request a continuance or an opportunity to present rebuttal evidence.9 Hence, 

Defendant has waived any claim about the propriety of the sentencing hearing.

11. Fourth, Defendant argues that he is entitled to credit for time previously 

served on his sentence for periods of incarceration from December 22, 2021, to 

December 29, 2021, and from March 26, 2022, to July 26, 2022.

12. On December 1, 2021, this Court convicted Defendant of Criminal 

Trespass in the First Degree in a separate case, ID No. 2110000340, and sentenced

him to one year of Level V supervision, followed by one year of Level II supervision.

The Delaware Criminal Justice Information System (“DELJIS”) shows that 

8 Larson v. State, 1995 WL 389718, at *3 (Del. June 23, 1995) (quoting Mayes v. State, 602 A.2d 

839, 842 (Del. 1992)).

9

See id. (holding that defendant who failed to object or request continuance or rebuttal at 

sentencing hearing waived post-conviction § 4331 claim).
6

Defendant was incarcerated from December 22, 2021, to December 29, 2021, for

violation of probation related to his Criminal Trespass conviction. DELJIS also 

shows that Defendant was incarcerated from March 26, 2022, to July 26, 2022, for 

the Stalking and Criminal Contempt offenses in the instant case, ID No. 

2203013888.

13. Defendant is entitled to credit for the time he spent in Level V supervision 

from March 26, 2022, to July 26, 2022, for offenses in the instant case, but he is not 

entitled to credit for the time he spent in Level V supervision from December 22, 

2021, to December 29, 2021, for his conviction in a separate case.

14. Fifth and finally, Defendant argues that he is entitled to sentence reduction 

because he has completed various treatment programs and enrolled in others.

Defendant’s argument is in essence a reduction of sentence claim, part of his motion 

for sentence reduction pursuant to Rule 35(b). The Motion was made less than 

ninety days after Defendant was sentenced and is his first motion for sentence 

reduction, so it is timely and non-repetitive.10

15. The Court has “considerable discretion over the appropriate grounds for 

a reduction of sentence.”11 As part of Defendant’s sentence for the instant charges, 

this Court requires him to complete mental health, substance abuse, and certified 

domestic violence intervention evaluations and treatment programs and comply with 

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

11 Id.
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accompanying recommendations. Fulfilling these requirements, which were 

imposed as conditions on Defendant’s sentence, in no way entitles him to a reduction 

of that sentence.

16. After reviewing the Motion, sentence, and record in this case, the Court 

finds no just cause for postconviction relief or sentence reduction. However, 

Defendant is entitled to credit for the time he served in Level V supervision from 

March 26, 2022, to July 26, 2022, for the Stalking and Criminal Contempt offenses 

in the instant case. Defendant’s sentence is otherwise appropriate for all the reasons 

stated at the time of sentencing. Accordingly, Defendant’s Motion is DENIED in 

part and GRANTED in part. The Court hereby directs the Prothonotary to issue 

a modified sentence order consistent with this opinion.

IT IS SO ORDERED.

______________________________

 Sheldon K. Rennie, Judge

Original to Prothonotary

cc: Jesse C. Kincaid (SBI #00447617)