State v. Koeller ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
)
Vv. ) ILD.No. 1612003152
)
)
AUSTEN R. KOELLER, )
)
Defendant. )
ORDER
Submitted: March 2, 2021
Decided: May 10, 2021
AND NOW TO WIT, this 10" day of May, 2021, upon consideration of
Defendant Austen R. Koeller’s (Defendant) Motion for Modification of Sentence,
the sentence imposed upon Defendant, and the record in this case, it appears to the
Court that:
l. On July 19, 2017, Defendant pled guilty to one count of Robbery
Second Degree and one count of Wearing a Disguise During the Commission of a
Felony! for which he received an aggregate of eighteen months at Level V with 226
days credit for time served, followed by various levels of probation. On July 10,
2018, a Violation of Probation (VOP) Report was filed On August 23, 2018,
' Case Review Plea Hearing: Pled Guilty/Sentenced, D.I. 7.
* Sentence: ASOP Order Signed and Filed, D.I. 8.
3 Violation of Probation Report Filed, D.I. 18.
Defendant was found in violation and sentenced the same day.* Defendant’s
sentence was later modified to four years at Level V INPATIENT DRUG with credit
for fourteen days previously served, suspended after successfully completion of
Level V INPATIENT DRUG, for three years at Level IV INPATIENT DRUG,
suspended after successful completion of Level [TV INPATIENT DRUG, for the
balance to be served at Level III.°
2. Defendant has previously filed multiple modification requests under
Rule 35.° All but one of his requests have been denied.’
3. On March 2, 2021, Defendant filed this fifth Motion for Modification
of Sentence under Rule 35.8 In his motion, Defendant requests a modification of his
Level IV sentence to either work release or home confinement.’ In support of his
motion, Defendant states that where Level [V INPATIENT program is the same as
Level V, his sentence would be redundant.'? Defendant believes he would be better
4 Violation-of-Probation Hearing: Defendant Found in Violation, Sentenced, D.I. 21.
> Sentence: Approved Modified VOP Order Signed and Filed, D.I. 37.
© Motion for Modification of Sentence, D.J. 25; Motion for Modification of Sentence, D.I. 29;
Motion for Modification of Sentence, D.I. 31; Motion for Modification of Sentence, D.I. 35.
7 Letter from Honorable Richard R. Cooch to Mr. Koeller (Letter for Modification Denied), D.I.
28; Motion for Modification of Sentence Denied, D.I. 30; Motion for Modification of Sentence
Denied, D.I. 34; Order: Defendant’s Request is Granted, D.I. 36.
§ Motion for Modification of Sentence, D.I. 38.
° Id.
10 1g.
served by being allowed to return home instead of “being required to complete the
same program back to back.””!
4. The Court has discretion in addressing Defendant’s request to modify
his Level IV sentence. Under Rule 35(b), the Court may “reduce the fine or term or
conditions of partial confinement or probation, at any time.”!? However, the request
cannot be repetitive as Rule 35(b) provides that “[t]he court will not consider
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repetitive requests for reduction of sentence.”’’ A motion is considered repetitive
when it “is preceded by an earlier Rule 35(b) motion, even if the subsequent motion
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raised new arguments. The bar to repetitive motions has no exception. It is
absolute and flatly “prohibits repetitive requests for reduction of sentence.”!
Therefore, where Defendant has previously submitted Motions for Modification of
Sentence,!® and where such motions were decided,’’ this motion is also barred as
repetitive. The Court cannot use its discretion to ignore this bar."
1 Td.
12 DeL. SUPER. CT. CRIM. R. 35(b).
3 Id.
14 State v. Culp, 152 A.3d 141, 144 (Del. 2016).
'S Thomas v. State, 812 A.2d 900, 2002 WL 31681804, at *1 (Del. 2002) (TABLE).
16 Motion for Modification of Sentence, D.J. 25; Motion for Modification of Sentence, D.J. 29;
Motion for Modification of Sentence, D.I. 31; Motion for Modification of Sentence, D.I. 35.
'7 Letter from Judge Cooch to Mr. Koeller (Letter for Modification Denied), D.1. 28; Motion for
Modification of Sentence Denied, D.J. 30; Motion for Modification of Sentence Denied, D.I. 34;
Order: Defendant’s Request is Granted, D.I. 36.
'8 Culp, 152 A.3d at 145 (reversing the Superior Court’s decision to grant defendant’s Motion for
Modification where the motion was repetitive and untimely).
3
Si: The Court further notes that while DOC’s Level V and Level IV drug
programs are both called “Road to Recovery,” the programs are different in the same
way Level V KEY was different than Level IV CREST. Therefore, Defendant’s
sentence will not be redundant. No additional information has been provided to the
Court that would warrant a reduction or modification of this sentence. As such, the
sentence is appropriate for all the reasons stated at the time of sentencing.
IT ISSO ORDERED that Defendant’s Motion for Modification of Sentence
is SUMMARILY DISMISSED.
Vivian L. Medinill
Judge
oc: Prothonotary
cc: Defendant
Department of Justice
Investigative Services