IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) I.D. No. 1601011422
)
BRIAN LIVINGSTON, )
)
Defendant. )
Date Submitted: May 11, 2022
Date Decided: July 5, 2022
Date Corrected: July 8, 20221
ORDER DENYING DEFENDANT’S MOTION FOR MODIFICATION
Upon consideration of Defendant Brian Livingston’s Motion for Modification
(“Motion”)2 pursuant to Superior Court Criminal Rule 35; the State’s Response
thereto;3 and the record in this case, the Court makes the following findings:
1. On September 14, 2016, Defendant pled guilty to Manslaughter,
Robbery Second Degree, and Conspiracy Second Degree.4 In pleading guilty,
Defendant admitted to recklessly causing the death of Everardo Martinez by
stabbing him with a knife.5
2. Defendant was sentenced to 12 years at Level 5 with transitioning levels
1
Corrected to reflect the motion is DENIED.
2
D.I. 23.
3
D.I. 26.
4
D.I. 5.
5
D.I. 2.
of probation.6
3. Since sentencing, Defendant has filed two motions pursuant to Superior
Court Criminal Rule 35 and one filed pursuant to 11 Del. C. §4204A. All three were
denied.7 Defendant filed the instant Rule 35(b) motion on March 14, 2022.8
4. In his latest Motion, Defendant asks the Court to reduce his 12-year
period of incarceration to 9 years.9 Defendant essentially asks the Court to impose
a longer probation in lieu of Level 5 incarceration.10 Defendant argues the
modification is warranted based on the following grounds: (1) his growth and
development while incarcerated; (2) his belief that a “[psychological] forensic
eval[uation] with risk assessment report” will reveal the “growth and development
transitions of maturation throughout his years of incarceration”; (3) his refrain from
6
D.I. 12. Defendant was sentenced on March 24, 2017, effective January 17, 2016, as follows:
(1) as to Manslaughter, N16-09-0164-I, 25 years at Level 5, suspended after serving 12 years at
Level 5, for 13 years at Level 4 Work Release, suspended after 9 months at Level 4 Work Release,
for 2 years at Level 3, hold at Level 5 until space is available at Level 4 Work Release — the first
2 years of this sentence is a mandatory term; (2) as to Robbery Second, N16-09-0165-I, 5 years
at Level 5, suspended for 18 months at Level 3 — probation is concurrent to criminal action
number N16-09-0164-I; and (3) as to Conspiracy Second, N16-09-0166-I, 2 years at Level 5,
suspended for 18 months at Level 3 — probation is concurrent to criminal action number N16-09-
0165-I.6
7
See D.I. 13 (timely Rule 35(b) motion denied by the Court on the merits); see also D.I. 17 (Rule
35(a) motion denied due to Defendant’s failure at the time to meet the time-served eligibility
requirements set forth in 11 Del. C. §4204A); see also D.I. 19 (Motion for Modification/Review
of Juvenile Sentence denied pursuant to 11 Del. C. §4204A’s requirement that “at least 5 years
have elapsed since the date on which the Court ruled upon the offender’s most recent position”).
8
D.I. 23. Although not made explicit by the Motion itself, the Court construes Defendant’s Motion
as a Rule 35(b) motion for modification of sentence, as does the State. See D.I. 26 (“While not
cited in his filing, the substance of the motion for modification of sentence reflects an application
made pursuant to Superior Court Criminal Rule 35(b).”).
9
D.I. 23.
10
See id. Defendant also asks for Level 4 Home Confinement in lieu of Level 4 Work Release.
2
“irritating the Court” with countless motions for modification; (4) “good cause,”
including rehabilitative measures undertaken by Defendant while in custody; and (5)
his lack of criminal history prior to his current convictions.11
5. The State filed its response in opposition to Defendant’s Motion on
May 16, 2022.12 The State argues that Defendant’s Motion should be denied based
on it being untimely, repetitive, and substantively deficient.13
Defendant’s Motion is Repetitive and Therefore Time-Barred
6. Rule 35(b) mandates that “[t]he [C]ourt will not consider repetitive
requests for reduction of sentence.”14 “[T]his bar is absolute and flatly ‘prohibits
repetitive requests for reduction of sentence.’”15 “As our Supreme Court and this
Court have consistently held, Rule 35(b) prohibits consideration when the request is
for sentence reduction, modification of a term of partial confinement, or
11
D.I. 23.
12
D.I. 26.
13
Id. at *2-3.
14
Super. Ct. Crim. R. 35(b). Unlike the 90 day jurisdictional limit with its “extraordinary
circumstances” exception, the bar to repetitive motions has no exception. See Redden, 111 A.3d,
at 608 (citing Giuricich v. Emtrol Corp., 449 A.2d 232, 238 (Del.1982) (“[W]here a provision is
expressly included in one section of a statute, but is omitted from another, it is reasonable to
assume that the Legislature was aware of the omission and intended it.”); see also Adoption of
Swanson, 623 A.2d 1095, 1097 (Del.1993) (citing Giuricich, 449 A.2d at 238) (“A court may not
engraft upon a statute language which has been clearly excluded therefrom.”)).
15
Redden, 111 A.3d, at 609 (quoting Thomas v. State, 2002 WL 31681804, at *1 (Del. Nov. 25,
2002). See also Jenkins v. State, 2008 WL 2721536, at *1 (Del. July 14,
2008) (Rule 35(b) “prohibits the filing of repetitive sentence reduction motions”); Morrison v.
State, 2004 WL 716773, at *2 (Del. Mar. 24, 2004) (“motion was repetitive, which also precluded
its consideration by the Superior Court”); Duffy v. State, 1998 WL 985332, at *1 (Del. Nov. 12,
1998) (as court had denied original, timely Rule 35(b) motion, “Rule 35(b) ceased to be a viable
option” for seeking sentence reduction)).
3
probation.”16 The bar to repetitive motions has no exception.17 This is Defendant’s
third Rule 35 motion.18 Rule 35(b) prohibits consideration of Defendant’s Motion.
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s
Motion for Modification is DENIED.
/s/ Jan R. Jurden
Jan R. Jurden, President Judge
cc: Original to Prothonotary
Brian J. Robertson, DAG
Brian Livingston (SBI# 00741658)
16
See Teat v. State, 2011 WL 4839042, at *1 (Del. Oct. 12, 2011); State v. Bennett, 2015 WL
1746239, at *2 (Del. Super. Apr. 13, 2015); State v. Weidlow, 2015 WL 1142583, at *1–2 (Del.
Super. Mar. 11, 2015).
17
See Culp, 152 A.3d at 144; State v. Redden, 111 A.3d 602, 608–09 (Del. Super. 2015).
18
See supra note 7; see also D.I. 26 (“. . . the present motion constitutes Mr. Livingston’s third
motion for reduction of sentence.”).
4