State v. Gordon ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. )
) I.D. No. 2005005984
AKIM GORDON, )
)
Defendant. )
ORDER
Submitted: April 5, 2023
Decided: May 15, 2023
AND NOW TO WIT, this 15th day of May 2023, upon consideration of
Akim Gordon (“Defendant”)’s Motion for Modification/Reduction of Sentence
under Rule 35, the sentence imposed upon the Defendant, and the record in this
case, it appears to the Court that:
1. On March 28, 2022, Defendant pled guilty to Drug Dealing Cocaine
and Conspiracy Second Degree.1 For the former charge, Defendant was sentenced
to five years at Level V, suspended after two years, for transitioning levels of
probation, and for the Conspiracy, he received a suspended Level V sentence to one
year at Level III.2
2. On October 3, 2022, Defendant filed his first Rule 35 motion asking the
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D.I. 10.
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D.I. 11.
Court to place him in a DOC program to address his drug addiction.3 This motion
was denied.4
3. This second Rule 35 Motion asks that this Court reduce his remaining
Level V sentence after he completes “Track 1 of the R2R Program” so that he can
support his family affected by his grandmother’s recent death.5
4. Under Superior Court Criminal Rule 35(b), the Court may reduce a
sentence of imprisonment on a motion made within ninety days after the sentence is
imposed.6 Defendant remains time barred. To overcome the time bar, he must show
that “extraordinary circumstances”7 forgive the tardiness of his Motion.8 The sole
basis for his request to support his family does not constitute extraordinary
circumstances.
5. Further, “[t]he court will not consider repetitive requests for reduction
of sentence.”9 A motion is considered repetitive when it “is preceded by an earlier
Rule 35(b) motion, even if the subsequent motion raises new arguments.”10 He
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D.I. 12.
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D.I. 13.
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D.I. 14.
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Del. Super. Ct. Crim. R. 35(b).
7
The Delaware Supreme Court has defined “extraordinary circumstances” as circumstances
which: “‘specifically justify the delay;’ are ‘entirely beyond a petitioner’s control;’ and ‘have
prevented the applicant from seeking the remedy on a timely basis.’” State v. Diaz, 113 A.3d
1081, 2015 WL 1741768, at *2 (Del. 2015) (TABLE) (quoting State v. Lewis, 797 A.2d 1198,
1203, 1205 (Del. 2002) (Steele, C.J., dissenting)).
8
See Colon v. State, 900 A.2d 635, 638 (Del. 2006) (citations omitted).
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Del. Super. Ct. Crim. R. 35(b).
10
State v. Culp, 152 A.3d 141, 144 (Del. 2016).
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previously filed in October of 2022.11 Thus, Defendant’s request is barred as
repetitive. Rule 35 does not allow the Court to use its discretion to ignore this bar.12
6. Defendant’s Motion for Modification of Sentence is SUMMARILY
DISMISSED.
IT IS SO ORDERED.
/s/ Vivian L. Medinilla
Vivian L. Medinilla
Judge
oc: Prothonotary
cc: Defendant
Department of Justice
Investigative Services Office
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D.I. 12.
12
Culp, 152 A.3d at 145 (reversing the Superior Court’s decision to grant the defendant’s motion
for modification where the motion was repetitive and untimely).
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