IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE :

: ID No. 1509003810

v. : In and For Kent County

:

ALEX JOSEPH

, :

:

Defendant. :

ORDER

Submitted: March 23, 2018

Decided: April 11, 2018

On this 11 th day of April 2018 , upon consideration of Defendant Alex Joseph’s

(hereinafter “Mr. Joseph’s”) motion for modification of sentence pursuant to

Superior Court Criminal Rule 35(b) , it appears to the Court that:

1. Mr. Joseph pled guilty to Assault in the First Degree for shooting a victim

m ultiple times on September 4, 2015. After resolution of the matter by plea

, the

Court sentenced him to two years of incarceration, to be followed by twelve months

at Level IV Home Confinement , to be followed by an additional twelve months at

Level III probation.

2. While on home c onfinement, Mr. Joseph violated his probation through

multiple curfew violations and us ing illi cit drugs. At the time the Court revoked his

probation and resentenced him, there remained greater than six months of unserved

home c onfinement time required by his original sentence . After considering all the

circumstances involved, th e Court resentenced Mr. Joseph to ninety days at a Level

IV VOP Center

, to be followed by six m onths at Level IV Work Release, and thenone year of Level III probation. Mr. Joseph received the credit time he was due,

which was applied to the Level IV VOP Center portion of his sentence

.

3. In support of his timely motion for modification of sentence, Mr. Joseph

emphasizes that while incarcerated, he posed no disciplina ry problems. He also

emphasizes that while he was on home c onfinement , he had secured employment.

He also emphasizes what he alleges is a stable household and supporting family.

Finally, his written motion alleges that he seeks to start classes at Wilmington

University during the Spring semester. He seeks a modification of his sentence to

either Level III probation or to home confinement in lieu of work release.

4. Under Superior Court Criminal Rule 35(b), the Court “may . . . reduce the

. . . term or conditions o f probation, at any time.” 1 The burden is upon the movant

to establish cause to modify a lawfully imposed sentence. Motions for reduction of

sentence s are appropriately heard “without presentation, hearing or argument unless

otherwise ordered by the court.” 2

5. The Court’ s sentence for Mr. Joseph’s violation of probation appropriately

r eflected all c ir cumstances relevant to his resentencing. Those circumstances

included the extremely violent nature of the underlying offense and the Court’s

significant concern that he abide by conditions of his probation to prevent future

similar conduct

. In its sentence, the Court also considered the fact that Mr. Joseph’s

violations began accruing within three months after his release to home confinement.

On balance, t he Court appropriately sentenced Mr. Joseph for his violation s of

pr obation based on r epeated curfew violations and illicit drug use. Namely, h is

resentence provides for approximately three additional month s of Level IV time than

that required by his original sentence. The Court does not find it appropri ate to

modify his Level IV sentence by returning him to home confinement as opposed to

1 Benge v. State , 101 A.3d 973, 976 (Del. 2014) (citation omitted).

2 Super. Ct. Crim. R. 35(b).work release. Mr. Joseph’s demonstrated non

- compliance with conditions of his

home confinement made his work release sanction appropriate

.

WHEREFORE, b ased on the submissions before the Court, the Co urt does

not find that Mr. Joseph has demonstrated circumstances that warrant reduction or

modification of his sentence. Accordingly, Mr. Joseph’s motion for modification of

sentence is DENIED.

IT IS SO ORDERED.

/s/Jeffrey J Clark

Judge