State v. Luis Levante
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE STATE OF DELAWARE v. LUIS LEVANTE, Defendant. ) ) ) ) I.D. No. 2109011186 ) ) ) ) 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. 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 2 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: cc: Prothonotary 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
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