State v. Gomez

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE STATE OF DELAWARE ) ) v. ) ) I.D. No. 0607012785 LEONARDO GOMEZ, ) Defendant. ) ORDER On Defendant’s Motion for Modification of Sentence – DENIED Filed: September 3, 2022 Decided: September 27, 2022 James Kriner, Esquire, Deputy Attorney General, for the State of Delaware Leonardo Gomez, pro se BRENNAN, J. Before the Court is Defendant’s Motion for Modification of Sentence pursuant to Superior Court Criminal Rule 35, dated September 3, 2022. Defendant was sentenced on February 1, 2008, for the charge of Murder 2nd Degree to a period of eighteen (18) years at Level V to be suspended after serving fifteen (15) years for three (3) years at Level IV Home Confinement or Work Release, which is to be suspended after six (6) months for two (2) years supervision Level III, effective July 19, 2006.1 On February 26, 2021, the Court received a letter from the Department of Corrections regarding a detainer lodged against Defendant by the Department of Homeland Security. This letter did not include a request for modification, nor was one made by Defendant immediately following. Accordingly, this letter was noted and placed upon the criminal docket in this criminal action as it did not constitute a request under 11 Del. C. § 4217.2 The instant motion for modification is, therefore, the first such motion filed in this case. Defendant now moves the Court to modify his sentence to eliminate the remaining 150 days of Level V so that he can be placed in the custody of Immigration and Customs Enforcement (hereinafter “ICE”) for deportation back to his home county of Mexico. The State opposes this motion. 1 D.I. 29. 2 D.I. 30. Rule 35(b) provides that the Court, “may reduce a sentence of imprisonment on a motion made within 90 days after the sentence is imposed.” 3 Defendant filed his motion well after 90 days from the date of his sentence and is time-barred. The Court will only consider such an application made after this 90 day time period upon a showing of “extraordinary circumstances” by Defendant.4 Defendant argues in support of his motion that, “[t]he court has prior granted a defendant modification of their sentences because of deportation issues under the extraordinary circumstances clause of … Rule 35.”5 While Defendant cites no legal authority in support of his assertion, both the State’s response and the Court’s own research revealed that in previous cases before this Court, the potential for deportation has acted as a factor in favor of sentence modification and reduction of Level V time. However, this was only true in where a defendant requested a modification to avoid deportation. That is not the situation here. In fact, the situation is the opposite. Defendant wishes to avoid completing his Level V sentence so that he can expedite his own deportation to his home country, without any assurances to the Court that any sort of supervision over Defendant would occur. In determining whether extraordinary circumstances exist …

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