State v. Davis ( 2021 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
PAUL R. WALLACE NEW CASTLE COUNTY COURTHOUSE
JUDGE 500 N. KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801
(302) 255-0660
Date Submitted: May 6, 2021
Date Decided: June 15, 2021
Mr. Mark H. Davis Mr. William L. Raisis, Esquire
SBI No. 00155091 Deputy Attorney General
Howard R. Young Correctional Institution Carvel State Office Building
1301 East 12th Street 820 N. French Street, 7th Floor
Wilmington, Delaware 19809 Wilmington, Delaware 19801
RE: State v. Mark H. Davis
ID. No. 1911011582
Motion for Reduction or Modification of Sentence
Dear Messrs. Davis and Raisis:
The Court is in receipt of: (1) Mr. Davis’s request to reduce his sentence (D.I.
7); its supplement requesting a specific order related to the sentencing condition
requiring a substance abuse and mental health evaluation (D.I. 8); and, (3) the State’s
response to those two filings (D.I. 10).
PROCEDURAL HISTORY
On June 26, 2020, Mr. Davis was before the Court after pleading guilty to
burglary in the second degree. For that conviction, he was sentenced to serve eight
years at Level V, suspended after seven years (to be served under the provisions of
11 Del. C. § 4204(k)) for one year at Level IV-DOC Discretion, suspended after six
months for six months at Level III-TASC.1 The sentence’s effective date is February
1
Sentencing Order, State v. Mark H. Davis, ID No. 1911011582 (Del. Super. Ct. Jun. 26, 2020)
(D.I. 6).
State v. Mark H. Davis
ID No. 1911011582
June 15, 2021
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27, 2020; and Mr. Davis is to held at Level V until the Level IV placement becomes
available.2 One condition of his sentence is that Mr. Davis be evaluated by the
Delaware Treatment Access Center (TASC) for substance abuse and mental health
treatment needs. The Court also noted that it would retain jurisdiction over this
sentence “for the express purpose of modification consistent with any treatment
recommendation made by TASC or the Department of Correction, but for no other
purpose.”3
Mr. Davis filed no direct appeal from his conviction or sentence. But he did
almost immediately docket a motion under Rule 35(b) seeking reduction of his
Level V term.4 Mr. Davis has since also filed what the Court would deem a
supplementary request for a specific order as to the timing of his substance abuse
and mental health evaluation.5
The Court may consider such a request “without presentation, hearing or
argument.”6 When considering motions for sentence reduction or modification, this
2
Sentencing Order, at 1-2.
3
Sentencing Order, at 3.
4
Def. Rule 35(b) Mot. (D.I. 7). See Super. Ct. Crim. R. 35(b) (providing that, under certain
conditions, the Court may reduce a sentence of imprisonment on an inmate’s motion; providing
also that the Court may reduce a term or the conditions of partial confinement or probation); see
also Jones v. State, 2003 WL 21210348, at *1 (Del. May 22, 2003) (“There is no separate
procedure, other than that which is provided under Superior Court Criminal Rule 35, to reduce or
modify a sentence.”).
5
D.I. 8.
6
Super. Ct. Crim. R. 35(b).
State v. Mark H. Davis
ID No. 1911011582
June 15, 2021
Page 3 of 7
Court addresses any applicable procedural bars before turning to the merits.7 As Mr.
Davis’s motion is his first and was timely filed, the Court finds there are no Rule
35(b) procedural bars to the consideration of his request for reduction of his
imprisonment term.
MR. DAVIS’S REQUEST TO REDUCE HIS PRISON TERM
The purpose of Superior Court Criminal Rule 35(b) historically has been to
provide a reasonable period for the Court to consider alteration of its sentencing
judgments.8 Where a motion for reduction of sentence of imprisonment is filed
within 90 days of sentencing, the Court has broad discretion to decide if it should
alter its judgment.9 “The reason for such a rule is to give a sentencing judge a second
chance to consider whether the initial sentence is appropriate.”10
The Court has examined Mr. Davis’s claim—i.e., his request that the Court
reconsider and decide if, on further reflection, its sentence now seems unduly
harsh—on the merits. Under every iteration of Delaware’s criminal rules governing
motions to reduce or modify sentences, such entreaties are addressed to the sound
discretion of this Court.11
7
State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015).
8
Johnson v. State, 234 A.2d 447, 448 (Del. 1967) (per curiam).
9
Hewett v. State, 2014 WL 5020251, at *1 (Del. Oct. 7, 2014) (“When, as here, a motion for
reduction of sentence is filed within ninety days of sentencing, the Superior Court has broad
discretion to decide whether to alter its judgment.”).
10
State v. Reed, 2014 WL 7148921, at *2 (Del. Super. Ct. Dec. 16, 2014) (collecting cases that
observe that such a request is essentially a plea for leniency: an appeal to the sentencing court to
reconsider and show mercy.).
11
Hewett, 2014 WL 5020251, at *1. See also Shy v. State, 246 A.2d 926 (Del. 1968); Lewis v.
State, 1997 WL 123585, at *1 (Del. Mar. 5, 1997).
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ID No. 1911011582
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Mr. Davis insists reduction of imprisonment should be granted because, in his
view, the Court failed to give adequate consideration to: (1) his learning and/or
intellectual challenges; (2) his struggles with substance abuse; (3) his alleged lack
of a violent criminal history; and, (4) his remorse.12
At bottom, Mr. Davis asks that the Court reweigh mitigating circumstances
he believes were present at the time of his sentencing hearing and reduce his term of
imprisonment. “A request for leniency and reexamination of the sentencing factors
is precisely the stuff of which a proper and timely Rule 35(b) motion is made.”13
Given this, the Court has fully reviewed Mr. Davis’s Rule 35 application, the
record in his case, his prior criminal and supervision history, and all sentencing
information available.
The Court first carefully weighed the applicable aggravators and mitigators
before imposing its sentence last year. And the Court made it clear then that it had
considered Mr. Davis’s presentation and reviewed all the favorable sentencing
materials he provided prior to his sentencing hearing.14 Mr. Davis is correct: his
12
Def.’s Rule 35(b) Mot., at 5. You make reference also to the United States Sentencing
Guidelines, recent changes to 11 Del. C. § 3901(d), and the standards for enhancement of statutory
maximums. Id. at 2. Not one of those is applicable in your case. But, the Court has given your
application the most liberal reading possible to determine if there any arguable “illegality” in your
sentence. The Court sees none. See Brittingham v. State, 705 A.2d 577, 578 (Del. 1998) (relief
from an “illegal” sentence under Rule 35(a) is available when, inter alia, the sentence imposed:
exceeds the statutorily-authorized limits; omits a term required to be imposed by statute; is
uncertain as to its substance, or is a sentence that the judgment of conviction did not authorize.).
13
State v. Remedio, 108 A.3d 326, 331-32 (Del. Super. Ct. 2014) (emphasis in original).
14
Sentencing Hearing Transcript, State v. Mark H. Davis, ID No. 1911011582 (Del. Super. Ct.
Jun. 26, 2020), at 9-13 (D.I. 11).
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ID No. 1911011582
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sentence imposed exceeds the applicable SENTAC guidelines. But that gets him
just so far in his plea for relief here.15
There is no doubt that each of the aggravators cited by the Court at the
sentencing hearing and in its sentencing order16 are well-supported by the record.
And there is no doubt those aggravating circumstances—Mr. Davis’s extensive
criminal history with two prior declarations of statutory habitual criminality, that
there were both elderly people and juveniles victimized by his crime, and, the finding
that any lesser sentence would unduly depreciate the nature of that crime and its
effects on the victim family17—can reasonably be seen to carry considerably greater
weight than the mitigators Mr. Davis has invoked for decades but done not nearly
enough to address.
The Court finds that when those aggravators and all other sentencing factors
15
State v. Comeger, 2015 WL 74260, at *2 (Del. Super. Ct. Jan. 5, 2015) (“The fact that a portion
of the sentence imposed exceeds SENTAC guidelines does not provide a legal or constitutional
basis to attack this sentence that is otherwise within statutory limits. It is, however, a proper factor
for the Court weigh when, as here, it is considering a timely Rule 35(b) motion.” (cleaned up)).
16
See DEL. CODE ANN. tit. 11, § 4204(n) (2020) (“Whenever a court imposes a sentence
inconsistent with the presumptive sentences adopted by the Sentencing Accountability
Commission, such court shall set forth on the record its reasons for imposing such penalty.”); DEL.
SUPR. CT. ADMIN. DIR. 76 (Sep. 15, 1987) (“Any judge who finds a particular sentencing standard
inappropriate in a particular case because of the presence of aggravating or mitigating or other
relevant factors need not impose a sentence in accordance with the standards but such judge shall
set forth with particularity the reasons for the deviation . . .”); SENTAC Policy No. 29, DELAWARE
SENTENCING ACCOUNTABILITY COMMISSION, Benchbook 2020, at 28 (providing, in relevant part,
that sentences of incarceration conditioned by § 4204(k) should be imposed only in “exceptional
circumstances”); SENTAC Policy No. 30, DELAWARE SENTENCING ACCOUNTABILITY
COMMISSION, Benchbook 2020, at 28 (“Since imposition of a sentence pursuant to 11 Del C., sec
4204(k) is, in effect, a departure from the presumptive sentencing guidelines; the reason for use of
Sec. 4204(k) must be stated on the record and included in the sentencing order.”).
17
Sent. Hrg. Tr., at 13-20; Sentencing Order, at 4.
State v. Mark H. Davis
ID No. 1911011582
June 15, 2021
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in Mr. Davis’s case are reconsidered, the circumstances he posits in his Rule 35(b)
application do not warrant a sentence reduction here. Instead, after a thorough
review of the merits of Mr. Davis’s request, the Court finds its original sentencing
judgment is appropriate for the reasons stated at the time it was rendered.
Accordingly, the Court will exercise its discretion under Rule 35(b)18 and
DENY this request to reduce Mr. Davis’s seven-year term of imprisonment.
MR. DAVIS’S REQUEST FOR AN IMMEDIATE TASC EVALUATION
Lastly, as to Mr. Davis’s suggestion that the Court should order that TASC
complete its evaluations immediately while he is at Level V, it was the Court’s intent
that all necessary evaluations and treatment recommendations would be carried out
at the time and by the entity most appropriate. That is, that the Department of
Correction would, as it regularly does, complete its assessments of Mr. Davis while
at Level V and assign Mr. Davis to the housing and program placements best suited
to his treatment and rehabilitative needs and the length of his Level V sentence.
The placement of Davis in any specific program, however, is at the sole
discretion of the Department of Correction. And indeed, the Department may engage
TASC’s assistance with Mr. Davis’s evaluation and treatment while at Level V. But
the Department is not required to do so. To the extent Mr. Davis claims otherwise—
that the Court’s sentencing order requires that he must receive a specific TASC
evaluation while at Level V and assignment to a TASC-named rehabilitative or
treatment program while at Level V—he cites no authority for that proposition. It is
18
Rondon v. State, 2008 WL 187964, at *1 (Del. Jan. 15, 2008) (“The merit of a sentence
modification under Rule 35(b) is directed to the sound discretion of the Superior Court.”); Hewett,
2014 WL 5020251, at *1.
State v. Mark H. Davis
ID No. 1911011582
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wholly appropriate for the Court to leave such Level V (and Level IV) classification
and placement decisions to the Department of Correction.19 And as the Court has
ordered here, it is the Court’s expectation that TASC will work with the Department
to address Mr. Davis’s continued treatment needs once he begins the community
supervision component of his sentence.
CONCLUSION
For the above reasons, Mr. Davis’s request for a reduction of his prison term
is DENIED. He must serve the seven years the Court has ordered.
To alleviate any confusion on Mr. Davis’s part over his substance abuse and
mental health evaluations, the Court will enter a modified sentencing order
forthwith. And so, as to Mr. Davis’s second request through this application, that
prayer is GRANTED, in part, and DENIED, in part.
IT IS SO ORDERED.
Paul R. Wallace, Judge
Original to Prothonotary
cc: Gregory E. Smith, Deputy Attorney General
Investigative Services Office
19
See Samans v. Dept. of Correction, 2015 WL 1421411, at *2 (Del. Mar. 27, 2015) (“Inmates do
not have a right to a particular prison classification and placement of inmates within the prison
system is within the wide spectrum of discretionary actions that traditionally have been the
business of prison administrators, rather than of the courts.” (cleaned up)); State v. Goodman, 2010
WL 547394, at *2 (Del. Super. Ct. Feb. 9, 2010) (observing that “[c]ourts are generally very
reluctant to interfere with the administration of prisons”).