State v. Miller


STATE OF DELAWARE,           )
    v.                       )                     ID No. 2003011982
                             )                     Cr. A. No. N20-08-0095I
OBADIAH D. MILLER,           )
                  Defendant. )

                                Submitted: January 6, 2021
                                 Decided: March 17, 2021


       This 17th day of March, 2021, upon consideration of the Defendant

Obadiah D. Miller’s Motion for Sentence Reduction (D.I. 7) and the record in this

matter, it appears to the Court that:

       (1)    On August 6, 2020, Obadiah Miller entered a guilty plea before this

Court in New Castle County to one count of Drug Dealing.1 He was immediately

sentenced for that drug dealing charge (N20-08-0095I) to: eight years at Level V

suspended after six months at Level V for seven years at Level IV-Work Release

suspended after six months at Level IV-Work Release for eighteen months at Level

III.2 The effective date of this sentence is March 26, 2020, and Mr. Miller is to be

   Plea Agreement, State v. Obadiah D. Miller, ID No. 2003011982 (Del. Super. Ct. Aug. 6,
2020) (D.I. 4).
    Sentence Order, State v. Obadiah D. Miller, ID No. 2003011982 (Del. Super. Ct. Aug. 6, 2020)
(D.I. 6).

held at Level V awaiting his placement at Level IV.3 This is precisely the sentence

Mr. Miller and the State had settled on in the their plea agreement.4

          (2)   Mr. Miller committed his drug crime while he was on conditional

release and probation related to a 2011 manslaughter conviction incurred in Kent

County.5 Any alleged violation of such supervision can trigger revocations of

both conditional release and probation.6 And Mr. Miller expressly understood and

agreed that the resolution of his New Castle County drug dealing offense would in

no way spare him any consequence in Kent County.7 So, as a result of this new drug

offense, his conditional release from the homicide conviction was revoked and

Mr. Miller was required to serve the balance (eight months) of the original

unsuspended and unserved Level V term from which he was conditionally released.8



    Plea Agreement, at 1 (“STATE AND DEFENDANT AGREE to recommend: 8 years Level
V suspended after 6 months Level IV (Work Release) followed by 18 months Level III.”)
(capitalization in original).
    “‘Conditional release’ means the release of an offender from incarceration to the community
by reason of diminution of the period of confinement through merit and good behavior credits. A
person so released [is] known as a releasee.” DEL. CODE ANN. tit. 11, §4302(4) (2020).
Conditional release and probation are then served concurrently.

Id. at

  Oliver v. State, 

2015 WL 179390

, at *1 (Del. Jan. 14, 2015) (quoting Brinkley v. State, 

WL 664238

, at *1 (Del. Feb. 23, 2011)).
   See Plea Agreement, at 1 (“*Note – Defendant has pending VOPs in case number 1011017124.
The parties are in agreement that the VOPs will not be discharged as a result of this plea. The
VOPs will be handled separately in Kent County.”).
   Order Revoking Conditional Release, State v. Obadiah D. Miller, ID No. 1011017124 (Del.
Super. Ct. Sept. 1, 2020) (ID No. 1011017124 - D.I. 30 and 33). See DEL. CODE ANN. tit. 11,
While for the VOP-Manslaughter (VK11-02-0276-01) he received: 18 years at Level

V suspended after one year at Level V followed by six months at Level IV-Work

Release, eighteen months at Level III, and one year Level I-Restitution Only.9

Mr. Miller’s VOP-Manslaughter sentence was imposed and made effective on

September 1, 2020. And that sentence was ordered to be served consecutively to

any other sentence of confinement.10

           (3)   Mr. Miller filed no direct appeal from his drug dealing conviction or

sentence, but has now filed a Rule 35(b) motion.11 He essentially requests that the

Court eliminate both the six-month Level V term and the six-month Level IV term

he received for the drug dealing charge.12

           (4)   Mr. Miller suggests that the Court should grant this Level V reduction

§4382(a) (2020) (providing that a conditional releasee—that is, one still “subject to the custody of
the Department at Level . . .V”—“shall upon the conviction of any crime during the term of the
sentence, forfeit all good time accumulated to the date of the criminal act; this forfeiture is not
subject to suspension.”); see also Brittingham v. State, 

2020 WL 5405881

, at *2 (Sept. 4, 2020)
(observing that now Superior Court exercises jurisdiction to issue such conditional release
revocation orders along with its jurisdiction over the accompanying “‘traditional’ VOPs”).
    VOP Sentence Order, State v. Obadiah D. Miller, ID No. 1011017124 (Del. Super. Ct. Sept.
1, 2020) (ID No. 1011017124 - D.I. 34).


    Super. Ct. Crim. R. 35(b) (providing that, under certain conditions, the Court may reduce a
sentence of imprisonment on an inmate’s motion); 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.”).
    Def. 1st Rule 35(b) Mot., at 2-3 (D.I. 7). The Court presumes Mr. Miller asks this now so as
to advance the effective date of his VOP-Manslaughter sentence six months.

and eliminate his work-release term because: (a) he believes, as an asthmatic, he is

at a particularly higher risk for COVID-19 infection and more serious effects

therefrom; (b) his “changed perspective” and rehabilitation; (c) he believes his

imprisonment is unduly hindering his “business plans”; and (d) he believes that he

has served about half of his cumulative Level V term and “at this point [is] simply

being ‘warehoused.’”13

         (5)     The Court may consider this motion “without presentation, hearing or

argument.”14 The Court will decide the motion on the papers filed and the complete

record in Mr. Miller’s case.

         (6)     When considering motions for sentence reduction or modification, this

Court addresses any applicable procedural bars before turning to the merits.15

         (7)     “Rule35(b) requires that an application to reduce imprisonment be filed

promptly—i.e. within 90 days of the sentence’s imposition—‘otherwise, the Court

loses jurisdiction’ to act thereon.”16 An exception to this bar exists: to overcome

the 90-day time limitation, an inmate seeking to reduce a sentence of imprisonment


Id. at

     Super. Ct. Crim. R. 35(b).
     State v. Redden, 

111 A.3d 602

, 606 (Del. Super. Ct. 2015).

Redden, 111 A.3d at 607

(internal citations omitted).

on his own motion must demonstrate “extraordinary circumstances.”17 A heavy

burden is placed on the inmate to establish “extraordinary circumstances” in order

to uphold the finality of sentences.18

           (8)   The term “extraordinary circumstances” is generally defined as “[a]

highly unusual set of facts that are not commonly associated with a particular thing

or event.”19 “And for the purposes of Rule 35(b), ‘extraordinary circumstances’

have been found only ‘when an offender faces some genuinely compelling change

in circumstances that makes a resentencing urgent.’”20 In short, Rule 35(b) is a rule

limited to reconsideration and altering of a sentence after the 90-day motion deadline

“only when there is a truly compelling change in that inmate’s individual

circumstances that presents an urgent need for revision of the sentence’s terms.”21

    Sample v. State, 

2012 WL 193761

, at *1 (Del. Jan. 23, 2012) (“Under Rule 35(b), the Superior
Court only has discretion to reduce a sentence upon motion made within 90 days of the imposition
of sentence, unless ‘extraordinary circumstances’ are shown.”) (emphasis added).
    State v. Diaz, 

2015 WL 1741768

, at *2 (Del. Apr. 15, 2015) (“In order to uphold the finality
of judgments, a heavy burden is placed on the defendant to prove extraordinary circumstances
when a Rule 35 motion is filed outside of ninety days of the imposition of a sentence.”).

2015 WL 1741768

, at *2 (citing BLACK’S LAW DICTIONARY (10th ed. 2014));

(Observing also that,

in the Rule 35(b) context, “‘extraordinary circumstances’ are those which
‘specifically justify the delay;’ are ‘entirely beyond a petitioner’s control;’ and ‘have prevented
the applicant from seeking the remedy on a timely basis.’”); State v. Remedio, 

108 A.3d 326

, 332
(Del. Super. Ct. 2014).
   State v. Thomas, 

220 A.3d 257

, 262 (Del. Super. Ct. 2019) (quoting Fountain v. State, 

A.3d 837

, 842 n.20 (Del. 2016)).



    To the extent Mr. Miller is arguing that his underlying medical

conditions and potential exposure to COVID-19 constitute “extraordinary

circumstances” under Rule 35(b), they do not; “[j]ust incanting ‘COVID-19’ is

inadequate to shoulder the heavy burden placed on one to establish ‘extraordinary

circumstances’ under Rule 35(b).”22 Rather, as this Court and the Delaware

Supreme Court have instructed others who have raised COVID-19 concerns:

“[S]hould Mr. [Miller]’s specific individual medical circumstance warrant sentence

reduction, then the proper vehicle to deliver such relief is an application by the

Department of Correction under 

11 Del. C

. § 4217.”23

       (10) The other factors Mr. Miller mentions—rehabilitative efforts and

financial hardship—are each and collectively of a sort Delaware courts have rejected

as adequate to shoulder the heavy burden placed on one to establish “extraordinary

circumstances” under Rule 35(b).24

       (11) Mr. Miller’s failure to meet Rule 35’s “extraordinary circumstance”

   State v. Jones, 

2020 WL 4483673

, at *2 (Del. Super. Ct. Aug. 4, 2020) (citing State v. Lindsey,

2020 WL 4038015

, at *2 (Del. Super. Ct. July 17, 2020) (collecting cases)).

2020 WL 4038015

, at *3; Johnson v. State, 

2020 WL 5626231

, at *2 (Del. Sept. 18,
2020) (same); Williams v. State, 

2020 WL 7311325

, at *1 (Del. Dec. 10, 2020) (same).
   E.g., Jones v. State, 

2003 WL 356788

(Del. Feb. 14, 2003) (holding that financial and familial
hardships, without more, did not constitute extraordinary circumstances.); State v. Culp, 

152 A.3d

, 145-46 (Del. 2016) (collecting cases) (participation in educational and rehabilitative
programs does not constitute “extraordinary circumstances” for purposes Rule 35(b)); 

Redden, 111
A.3d at 607

-08 (same).
criterion prohibits this Court from considering his time-barred prayer for reduction

of his Level V term.

        (12) But, as this is a first application for modification of his term of partial

confinement or probation, there are no bars to consideration of that prayer in

Mr. Miller’s request under Rule 35(b).25

        (13) It is worth mentioning first that Mr. Miller expressly agreed to the now-

challenged terms of the sentence imposed (six months at Level V and six months at

Level IV-Work Release), obtained the benefit of that express agreement, but now

expressly asks the Court to undercut it by completely gutting the confinement and

partial confinement terms from his new drug dealing sentence.26                        While not

controlling, that’s a proper factor for the Court to consider when addressing a Rule

35(b) motion.27

        (14) Neverthless, the Court has fully reviewed Mr. Miller’s application, the

record of his case, Mr. Miller’s prior supervision history, and all sentencing

information available. Mr. Miller demonstrated a lack of amenability to community

    See Teat v. State, 

2011 WL 4839042

, at *1 (Del. Oct. 12, 2011) (finding this Court erred in
holding that motion for modification of Level IV time was subject to ninety-day period but could
be affirmed because motion was repetitive); State v. Bennett, 

2015 WL 1746239

, at *2 (Del.
Super. Ct. Apr. 13, 2015) (bar to repetitive motions is applicable to requests for modification of a
Level IV term of a sentence).
     Def.’s Rule 35(b) Mot. at 2.
     See, e.g., State v. Colburn, 

2015 WL 1881181

, at *3 (Del. Super. Ct. Apr. 24, 2015).

supervision when he committed a new felony while on release from a homicide

conviction. As a result, a Level IV term, i.e., a period in a highly structured work -

release supervision setting, was imposed as a component of Mr. Miller sentence

integral to the Court’s overall “sentencing scheme” or “plan.”28 The Court finds that

when all sentencing factors in his case are considered, Mr. Miller’s stated aspirations

may be commendable, but they do not compel a modification of the partial

confinement term ordered. Instead, after thorough review of the merits of Mr.

Miller’s request, the Court finds its original sentencing judgment remains


        NOW, THEREFORE, IT IS ORDERED that Mr. Miller’s application to

reduce his sentence of imprisonment is procedurally barred and must be DENIED.

Having reviewed the merits of his request to modify his Level IV term, the Court,

exercising its discretion under Rule 35(b),29 DENIES Mr. Miller’s request for

modification (elimination) of his term of work release.

                                                    Paul R. Wallace, Judge
Original to Prothonotary

     See Defoe v. State, 

750 A.2d 1200

, 1202 (Del. 2000).
    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.”); Kiser
v. State, 

2010 WL 5141242

, at *1 (Del. Dec. 10, 2010) (same for motion that seeks reduction or
modification of partial confinement).

cc:   Mr. Obadiah D. Miller, pro se
      Amanda D. Buckworth, Deputy Attorney General
      Investigative Services Office


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