State v. Mopkins

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ) I.D. No. 2010001104 ) DANIEL MOPKINS, ) ) Defendant. )

ORDER

Submitted: February 8, 2023 Decided: March 7, 2023

AND NOW TO WIT, this 7th day of March, 2023, upon consideration of Daniel Mopkins (“Defendant”)’s Motion for Modification/Reduction of Sentence under Superior Court Criminal Rule 35, the sentence imposed upon the Defendant, and the record in this case, it appears to the Court that:

1. On March 17, 2022, Defendant pled guilty to one count of

Possession of a Firearm During the Commission of a Felony (“PFDCF”) and

one count of Reckless Endangering First Degree.1 On June 3, 2022, Defendant

was sentenced to: (1) for PFDCF, eight years at Level V, suspended after three

years for transitioning levels of probation; and (2) for Reckless Endangering

1 D.I. 13.

First Degree, five years at Level V, suspended for two years at Level III. 2

2. On January 31, 2023, Defendant filed this Motion for Sentence

Modification/Reduction, asking for “no probation.”3 In support, Defendant

asserts that he is rehabilitated and employable, received funds from a small

business association, and has been promoting literacy programs through various

writings and publications. Further, he asserts that no probation would be good

for “marketing.”4

3. 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.5 Defendant filed this pending Motion 242 days after the

sentencing. Defendant’s Motion is time-barred. To overcome the ninety-day

time bar, Defendant must show that “extraordinary circumstances” forgive the

tardiness of his Motion.6 Rehabilitation, employability, receipt of funds,

promotion of literacy, and marketability do not constitute extraordinary

circumstances to justify the delay.

2 D.I. 15. 3 D.I. 16. 4 Id. 5 Del. Super. Ct. Crim. R. 35(b). 6 See Colon v. State, 900 A.2d 635, 638 (Del. 2006); Washington v. State, 2023 WL 2028713, at *2 (Del. Feb. 15, 2023) (citing State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015) (explaining that extraordinary circumstances are the circumstances that “specifically justify the delay; are entirely beyond a petitioner’s control; and have prevented the applicant from seeking the remedy on a timely basis.”).

4. Moreover, Defendant’s request is statutorily barred. 11 Del. C.

4204(l) requires this Court to impose the period of custodial supervision as

imposed. 7

5. The Sentence was appropriate for all the reasons stated at the time

of sentencing.

IT IS SO ORDERED that Defendant’s Motion for Sentence Modification is DENIED.

/s/Vivian L. Medinilla Vivian L. Medinilla Judge oc: Prothonotary cc: Defendant Investigative Services

7 11 Del. C. 4204(l) (“Except when the court imposes a life sentence or sentence of death, whenever a court imposes a period of incarceration at Level V custody for 1 or more offenses that totals 1 year or more, then that court must include as part of its sentence a period of custodial supervision at either Level IV, III or II for a period of not less than 6 months to facilitate the transition of the individual back into society. The 6-month transition period required by this subsection may, at the discretion of the court, be in addition to the maximum sentence of imprisonment established by the statute.”); see also Nave v. State, 783 A.2d 120, 122 (Del. 2001) (“Section 4204(l) clearly requires the sentencing court to impose a period not less than six months of custodial supervision at Level IV, III, or II, i.e., probation, to follow any Level V sentence of one year or more.”).