State v. Luis Levante ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. )
) I.D. No. 2109011186
)
LUIS LEVANTE, )
)
Defendant. )
ORDER
Submitted: April 18, 2023
Decided: May 17, 2023
AND NOW TO WIT, this 17th day of May 2023, upon consideration
of Luis Levante (“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 June 21, 2022, Defendant pled guilty to Possession of a
Firearm During the Commission of Felony (PFDCF) and Reckless
Endangering First Degree. 1 On January 20, 2023, Defendant was sentenced
for PFDCF to 25 years at Level V, suspended after 3 years, for transitioning
levels of probation. 2 For Reckless Endangering First Degree, he received 5
1
D.I. 12.
2
Although the parties originally believed a prior conviction from Puerto Rico would expose
Defendant to a five-year minimum sentence as reflected in the Truth-In-Sentencing paperwork, at
the time the plea agreement was entered, it was agreed that a three-year minimum sentence applied
years at Level V, suspended for 2 years at Level III. 3
2. On April 14, 2023, Defendant filed a Motion for
Modification/Reduction of Sentence, asking the Court to suspend his Level V
sentence upon completion of his “intense behavioral modification program,” due
to improved conduct he attributes to full compliance with that programming. 4
3. Under Superior Court Criminal Rule 35(b), the Court may reduce a
sentence of imprisonment on a motion made within 90 days after the sentence is
imposed. 5 “Rule 35(b) allows for a reduction of sentence without regard to the
existence of a legal defect.”6 Accordingly, a timely and non-repetitive Rule 35(b)
motion is “essentially a ‘plea for leniency.’” 7
4. Although Defendant’s Motion was filed within 90 days of
sentencing—and not time-barred—Defendant is still serving the minimum
mandatory period of his sentence. So, although the Court generally has wide
discretion to reduce a sentence upon this timely Rule 35(b) application, the Court
has no authority to reduce or suspend the mandatory portion of any substantive
instead.
3
D.I. 14.
4
D.I. 15 (stating that Defendant has mental health and substance abuse issues).
5
Del. Super. Ct. Crim. R. 35(b).
6
State v. Lewis, 797 A.2d 1198, 1201 (Del. 2002).
7
Id. at 1202 (quoting United States v. Maynard, 485 F.2d 247, 248 (9th Cir. 1973)).
2
minimum sentence.8
5. Furthermore, the Court afforded leniency when it imposed the
minimum mandatory sentence. Thus, Defendant’s sentence is appropriate for all
the reasons set forth at sentencing.
IT IS SO ORDERED that Defendant’s Motion for Sentence
Modification/Reduction is DENIED.
/s/Vivian L. Medinilla
Vivian L. Medinilla
Judge
oc: Prothonotary
cc: Defendant
Department of Justice
Investigative Services
8
State v. Sturgis, 947 A.2d 1087, 1092 (Del. 2008) (“Superior Court Rule of Criminal Procedure
35(b) provides no authority for a reduction or suspension of the mandatory portion of a substantive
statutory minimum sentence.”) (emphasis in original).
3