IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE
v, I.D. # 14090()3516
CARLTON V. KILSON, Jr.,
\/\/\/\./\_/\./\/
Defendant.
Date Submitted: February 12, 2016
Date Decided: April l3, 2016
ORDER DENYING CARLTON KILSON’S MOTION TO MODIFY
SENTENCE UNDER_SUPERIOR COURT CRIMINAL RULE 35§_b1
This 13th day of April, 2016, upon consideration of the Motion for Sentence
Modiflcation (the "Motion") filed by Carlton V. Kilson, Jr., the record in this
matter, and the applicable legal authority, including Rule 35 of the Superior Court
Rules of Criminal Procedure ("Rule 35"), it appears to the Court that:
l. Carlton V. Kilson pleaded guilty on February 9, 2015 to Robbery
Second Degree and three misdemeanor charges. At sentencing on September 18,
2015, the Court sentenced Kilson on the robbery charge to three years at Level V,
suspended after one year and six months for one year and six months at Level IV,
suspended after six months for one year at Level III.] For each of the three
misdemeanors, Kilson received a sentence of 12 months at Level V, suspended for
' Stale v. Kilson, ID No. l409l)035l6 at l-Z (Del. Super. Sept. l8, 2015) (ORDER) (Sentencing).
l
12 months at Level III. All the Level III probation was to run concurrent with the
charges in the case and with a sentence of probation imposed on Kilson in a
previous matter.z The Court did not designate what type of Level IV time Kilson
was to serve, but instead left that determination to the discretion of the Department
of Correction ("DOC"). The sentencing order specifies that Kilson is to be held at
Level V until space is available at Level IV.
2. Kilson previously filed a Rule 35 motion to receive credit for time
served. This Court granted that motion on February 5, 2016, giving Kilson 57 days
credit for time he served after he was arrested on the robbery charge.3
3. In his present l\/Iotion, Kilson argues his sentence should be modified
to require DOC to release him to Level IV home confinement, rather than leaving
to the discretion of DOC how Kilson should serve his Level IV time. Kilson
argues that "DOC [has] denied [him] of [his] [Level IV] work release."4 Kilson
does not elaborate further on how he has been "denied" work release. He
nevertheless urges the Court to specify that the Level IV sentence should be served
2 Id. at 2, 3. At the time of sentencing, Kilson also was serving probation in ID No. 1402013432,.
3 Slate v. Kilson, ID No. 1409003516 (Del. Super. Feb. 5, 2016) (ORDER) (Motion for Credit
Time).
4 "Motion for Level-4-Home Confinement" at 2.
2
as home confinement because Kilson "really would like that transition through
home confinement back to civil [society]."§
4. Before considering the merits of a motion filed under Rule 35, the
Court must determine whether the motion satisfies the rule’s procedural
requirements Under Rule 35(b), the Court may reduce a sentence of imprisonment
on a motion made within 90 days after the sentence is imposed.é Kilson’s motion
to modify the terms of his partial confinement, however, is not subject to the 90
day limitation applicable to a motion to reduce a term of imprisonrnent.7 Kilson’s
motion therefore is consistent with Rule 35’s procedural requirements The merits
of Kilson’s motion, however, do not justify modification of the sentence. Kilson
argues he has been "denied" Level IV work release, without explaining how or
why that form of partial confinement has been denied. In fact, it appears Kilson
has not yet served the Level V time to which he was sentenced, and there is
nothing in the record to indicate DOC has refused to consider work release - or
any other type of Level IV partial confinement - for Kilson at the appropriate time.
More fundamentally, Kilson has not explained why this Court should override the
discretion of DOC in determining what form of partial confinement is best suited
for Kilson. Assuming for the sake of argument that DOC has refused to allow
5 Motion at 2.
6 super. ct crim_ R. zs(b).
7 Benge v. S¢a¢e, 101 A.zd 973, 977(13@1. 2014)..
3
Kilson to serve his Level IV time in home confinement, such a determination is
well within the discretion of DOC given the facts of record in this case. Kilson has
not been successful in previous sentences involving community-based supervision;
he connnitted the robbely and misdemeanors for which he is currently sentenced
while awaiting sentencing on earlier charges and was again arrested while awaiting
sentencing on the robbery and misdemeanor charges. In short, if DOC has
determined that Kilson is not an appropriate candidate for Level IV home
confmement, Kilson offers nothing to indicate that DOC’s conclusion is mistaken
or that changed circumstances justify the Court revisiting its earlier decision
leaving the Level IV determination to DOC.
For the foregoing reasons, it is hereby ORDERED that Kilson’s Motion for
Sentence Modiflcation is DENIED.
. l.e(}row, Judge
Original to Prothonotary
cc: Julie A. Finocchiaro, Deputy Attorney General
Investigative Services Offlce
Mr. Carlton V. Kilson (SBI No. ()0543759),}91”0 se