State of Delaware v. Middlebrook.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE, v. NIKERRAY MIDDLEBROOK, Defendant. ) ) ) ) ) ) ) ) ID#: 9608015635 ORDER Upon Defendant s Motion for Sentence Reduction GRANTED, in part, and DENIED, in part. 1. About sixteen years ago, on August 23, 1996, Defendant, who was then 22, shot two other young men, probably over a senseless turf-war in Wilmington. One victim was hit in the neck, and the other in the lower back. Incredibly, both victims were treated and released with no permanent injury. Several weeks later, Defendant robbed and shot a third man.1 In short, in 1996, Defendant was young, out of control, heavily armed and extremely dangerous. 2. 1 Eventually, Defendant was convicted of attempted murder, assault See Middlebrook v. State, 802 A.2d 268 (Del. 2002) (Defendant s robbery, assault, and possession of a weapon during the commission of a felony convictions overturned on speedy trial grounds, not because the convictions lacked supporting evidence). in the first degree, weapon offenses, and other crimes. He was sentenced to 37 years in prison, 23 of which are mandatory, followed by probation. Thus, Defendant has been in prison since late-1996. 3. Since then, Defendant has filed motions for sentence reduction. Due to the time-gone-by, the court has been reluctant to step-in. It is has encouraged Defendant to apply for relief through 11 Del. C. §4217.2 On February 27, 2012, Defendant filed this renewed motion for reconsideration. The motion, itself, is substantial. Attached to it are letters of recommendation. The motion and accompanying documents suggested Defendant has grown a lot and justified followup. On March 14, 2012, the court called for the Attorney General s and the Department of Correction s responses. 4. On April 18, 2012, the Attorney General filed a letter vividly reminding the court about Defendant s violent history in this case and others. The Attorney General acknowledges Defendant s letters of recommendation, and opines Defendant is a very intelligent individual [and] he has succeeded in prison. The Attorney General implies, however, that Defendant is anti-social and his success in prison is only attributable to having been in a controlled environment so 2 See October 27, 2010 order ( Mr. Middlebrook - taking your age and its seriousness into account, the court is interested in DOC s assessment. You should apply under 11 Del .C. §4217. If DOC will stand up for you, that will be important. ) 2 professionally provided by the Department of Correction[ ]. The Attorney General s concerns cannot be dismissed lightly. The last time Defendant was on his own, albeit 16 years ago, he was truly a menace. 5. The Department of Correction responded by letter dated April 10, 2012. Clearly, DOC took the court s inquiry seriously, reporting that while Defendant has not been perfect, he has not been idle, or passive in developing socially acceptable changes in his character. In summary, DOC s assessment is highly favorable. 6. Unfortunately, DOC falls short of actually making a recommendation, referring to Defendant s correctional rehabilitation as an on-going work in-progress. DOC concludes that Defendant s accomplishments: (1) clearly contrast with a characteristic profile of Nikerray Middlebrook when he was originally sentenced and (2) that distinctively stands out with overwhelming evidence that Nikerray Middlebrook is a positive role model among the adult male inmate population of JTVCC. Unfortunately, DOC does not opine as to whether Defendant represents a threat to the community and how he will get along if he were released. 7. As to the continuing interest in 11 Del. C. §4217, DOC reminds the court that Defendant is not eligible for relief under §4217 until he has completed 3 half of the Level 5 sentence. Thus, if Defendant s sentence is not reduced, he will not eligible for §4217 consideration until March 2015. If, on the other hand, his sentence were reduced from thirty-seven years in prison by two years, eight months, he would be entitled to §4217 review now. 8. Taking it all into consideration, Defendant s performance in prison over the last sixteen years, as reflected in DOC s April 10, 2012 assessment, supports reducing Defendant s 37 year maximum sentence to 34 years, 4 months, a two year, eight month reduction. This is a relatively modest reduction, potentially leaving Defendant many years from release. 9. Presumably, once Defendant is eligible to apply for §4217 consideration, he will apply to DOC for further reduction under 11 Del. C. §4217. As to that, the court offers no opinion now. DOC will not only re-consider Defendant s performance while in prison, but also the likelihood that he will be a productive member of society were he released. Perhaps, the process will include a professional evaluation to address the Attorney General s intuitive concern about sociopathy. Moreover, the process will probably determine where Defendant will live and how he will support himself. If DOC recommends further reduction, the Attorney General and the court, in turn, will re-consider the sentence in light of what the §4217 process develops. 4 For the foregoing reasons, the Level 5 portion of lead sentence SHALL be reduced from 37 years to 34 years, 4 months. An ASOP sentence order will be filed today reflecting this decision. IT IS SO ORDERED. Date July 19, 2012 cc: /s/ Fred S. Silverman Judge Prothonotary (Criminal) Robert H. Surles, Deputy Attorney General Perry Phelps, Warden, JTVCC James C. Simms, Master Correctional Counselor Ronald G. Hosterman, Treatment Administrator Nikerray Middlebrook, Defendant 5
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