IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) )

v. ) I D No. 1908018349 )

BRANDON L. TANN

, ) )

Defendant. )

Date Submitted: January 6 , 202 1

Date Decided: March 5 , 202 1

ORDER

Upon consideration of Defendant’s Motion for Modification of Sentence ( the

“Motion”), 1 Superior Court Criminal Rule 35, statutory and decisional law, and the

record in this case, IT APPEARS THAT:

1. On January 24, 2020, Defendant pled guilty to Attempted First

- Degree

Assault, Possession of a Firearm by a Person Prohibited (“PFBPP”), and

Disrega rding a Police Officer’s Signal. 2

2. In an order issued on January 2 4 , 2020 and effective August 27, 2019,

the Court sentenced Defendant as follows: for Attempted First

- Degree Assault, 10

1 D.I. 3 0

. Although Defendant lists two criminal case numbers in his Motion (ID Nos. 1706011079 and 1908018349), he appears to request modification only of the sentence that he received in ID

No. 1908018349. When his motion form prompted him to list his sentencing date, Defendant wrote January 24, 2020, the date on which he was sentenced in ID No. 1908018349. And w hen his motion form prompted him to list the offenses to which he was sente nced, Defendant listed the offenses to which he was sentenced in ID No. 1908018349. Thus, the Court limits its discussion to ID No. 1908018349, and all citations in this order correspond to that case.

2 D.I. 16.2

years at Level V, suspended after 2 years at Level V, for 2 years at Level IV (DOC

Discretion), suspended after 6 months at Level IV (DOC Discretion), for 18 months

at Level III, hold at Level V until space is available at Level IV (DOC Discretion);

for PFBPP, 3 years at Level V, suspended for 1 year at Level III; and for

D isregarding a Police Officer’s Signal, 2 years at Level V, suspended for 1 year at

Level III. 3

3. On April 16, 2020, Defendant filed a timely Motion for Modification

of Sentence , which the Court denied on the merits on May 7, 2020. 4

4. On January 6, 2021, Defendant filed a second Motion for Modification

of Sentence

—

the instant Moti on. 5 In t his Motion, Defendant asks the Court to

modify the remainder of his Level V time to an “enhanced” period of Level III time

and to order mental health treatment at an outside placement. 6 Defendant asserts a

number of grounds in support of his requests. First, Defendant argues that there are

extraordinary circumstances that warrant modification of his sentence ; h e explains

that he is serving his sentence at the Ho ward R. Young Correctional Institution and

maintains that the staff there has been mismanaging the spread of COVID

- 19, which

has put his life at risk. 7 Second, Defendant explains that he has made a conscious

3 D.I. 17.

4 D.I. 25

– 26

. 5 D.I. 30.

6 Id.

7 Id.3

decision to “abandon the misguided thinking process that caused his incarceration.” 8

Third, Defendant avers that he has lost his home, wife, family , and business due to

his incarceration and the COVID

- 19 pandemic. 9 Fourth, Defendant contends that he

has not received proper treatment for his mental health disorders and has lost vision

in his right eye

. 10

5. Superior Court Criminal Rule 35(b) governs the modification of

sentences. 11 Pursuant to Rule 35(b), a motion to modify a sentence of imprisonment

must be filed no later than 90 days after the sentence is imposed

. 12 The Court may

consider an untimely motion only if the defendant shows “ extraordinary

circumstances ” or if the Department of Correction ( “DOC”) files an application for

good cause shown pursuant to 11 Del. C. § 4217

. 13 Rule 35(b) also prohibits the

Court from considering “repetitive requests for reduction of sentence.” 14 A motion

is repetitive when it is “preceded by an earlier Rule 35(b) motion, even if the

subsequent motion raises new arguments.” 15

8 Id.

9 Id.

10 Id.

11 Su per. Ct. Crim. R. 35(b).

12 Id.

13 Id.

14 Id.

14 Id.

15 State v. Culp , 152 A.3d 141, 144 (Del. 2016).4

6. Here, Defendant’s Motion is time barred. As a threshold matter,

Defendant asks the Court to modify a sentence of impriso nment, which triggers the

90

- day filing deadline in Rule 35(b)

. Defendant was sentenced on January 24, 2020,

and he filed the instant Motion on January 6, 2021

— more than 90 days later. 16

Neither exception to the time bar applies. T he DOC has not filed a n application for

good cause shown pursuant to 11 Del. C. § 4217

. And although Defendant asserts

that the prison staff’s alleged mishandling of COVID

- 19 constitutes “ extraordinary

circumstances ,” the Supreme Court of Delaware has considered and dismissed that

argument. 17

7. Defendant’s Motion is also barred as repetitive. As noted above, the

instant Motion for Modification of Sentence is Defendant’s second. 18

8. Next, r elevant to Defendant’s particular medical needs, the Supreme

Court has stated that if a defendant’s “specific individual medical condition warrants

sentence modification, an application by DOC under § 4217 is the proper vehicle to

deliver such relief.” 19

16 D.I. 17, 30.

17 Woods v. State , 2021 WL 304007 , at *2 (Del. Jan. 28, 2021) (citation omitted) (“Woods’s contention that DOC has not acted appropriately to contain the spread of COVID

- 19 within the prison system does not provide a basis for relief under Superior Court Rule 35(b).”).

18 D.I. 25.

19 Woods , 2021 WL 304007, at *2 (brackets and internal quotation marks omitted) (quoting

Williams v. State , 2020 WL 7311325, at *1 (Del. Dec. 10, 2020)).5

9. Lastly, a s a general matter, the Court notes that a primary purpose of

Rule 35(b) is to “ give a sentencing judge a second chance to consider whether the

initial sentence is appropriate .” 20 Having taken that second chance, the Court finds

that Defendant’s initial sentence is appropriate for all of the reasons stated at the

time of sentencing. No additional information has been provided to the Court that

would warrant a modification of Defendant’s sentence.

NOW, THEREFORE, IT IS ORDERED that Defendant’s M otion for

Modification of Sentence is DENIED.



# Jan R. Jurden

Jan R. Jurden, President Judge

Original to Prothonotary

cc: Brandon L. Tann (SBI# 00401050 ) Mark A. Denney ( DAG )

20 State v. Reed , 2014 WL 7148921, at *2 (Del. Super. Ct. Dec. 16, 2014) (citations omitted).