Drummond v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE DALLAS H. DRUMMOND, § § No. 52, 2021 Defendant Below, § Appellant, § § v. § Court Below – Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID No. 1001008949A (K) Plaintiff Below, § Appellee. §

Submitted: May 11, 2021 Decided: June 11, 2021 Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES, Justices.

ORDER Upon consideration of the appellant’s opening brief, the appellee’s motion to affirm, and the record below, it appears to the Court that: (1) The appellant, Dallas Drummond, filed this appeal from the Superior Court’s denial of his motion for review of sentence. The State has moved to affirm the judgment below on the ground that it is manifest on the face of the opening brief that the appeal is without merit. We agree and affirm.

(2) On September 19, 2011, Drummond pled guilty to possession of marijuana, and the Superior Court sentenced him to six months of imprisonment, suspended for six months of Level III probation. On February 4, 2013, Drummond pleaded guilty to two counts of fourth-degree rape. For each count, the Superior Court sentenced him to fifteen years of imprisonment, suspended after four years for eighteen months of Level III probation. The sentencing order also provided that Drummond would be subject to GPS monitoring and prohibited him from having contact with any minor under eighteen years of age.

(3) On August 6, 2019, a probation officer filed a violation of probation (“VOP”) report alleging that Drummond’s GPS monitor had indicated that Drummond was on a high school campus on July 23, 2019, for approximately thirty minutes. At a VOP hearing on November 8, 2019, the Superior Court found Drummond in violation and imposed the following VOP sentence: for the first fourth-degree rape conviction, eleven years of imprisonment, suspended after completion of the Transitions Sex Offender Program for two years of Level III probation with GPS monitoring; for the second fourth-degree rape conviction, eleven years of imprisonment, suspended for two years of Level III probation with GPS monitoring; and for the marijuana conviction, six months of imprisonment, suspended for two years of Level III probation with GPS monitoring. Drummond appealed from his VOP sentence, and this Court affirmed.1 (4) Drummond has filed several motions for modification or review of sentence, which the Superior Court has denied. On January 25, 2021, he filed a motion for review of sentence, in which he sought to be released from Level V confinement to either Level III or Level IV supervision. Invoking 11 Del. C. § 4221 and the Eighth Amendment, he sought review of his sentence based on the effects of the COVID-19 pandemic within the prison and, in particular, because he has asthma, which places him at increased risk of complications from COVID-19. The Superior Court denied the motion as untimely and repetitive.2 It also determined that Drummond is not amenable to probation at this time, that the sentence was appropriate, and that the Department of Correction (“DOC”) had implemented protocols to protect inmates and others from COVID-19. Drummond has appealed to this Court.

(5) We review the denial of a motion for sentence review or modification for abuse of discretion.3 We conclude that the Superior Court’s order should be affirmed. The cases on which Drummond relies in support of his Eighth Amendment argument relate to the civil liability of prison officials, not the reduction of prisoners’ sentences; Drummond has not demonstrated that he is entitled under the Eighth Amendment to the relief that he seeks.4 Nor is he entitled to relief under 11 Del. C.

§ 4221. That provision permits but does not require the Superior Court to modify or reduce a sentence of one year or less under specified circumstances.5 Even if we assume that Drummond’s sentence is eligible for consideration under Section 4221, we cannot conclude that the Superior Court abused its discretion by determining that Drummond is not amenable to probation at this time and denying his request under Section 4221 to be released on probation.

(6) Finally, Drummond’s contention that the DOC has not acted appropriately to contain the spread of COVID-19 within the prison system does not provide a basis for relief under Superior Court Criminal Rule 35(b). 6 Rule 35(b) provides that the court will consider a motion made more than ninety days after the imposition of sentence only in “extraordinary circumstances or pursuant to 11 Del. C. § 4217.”7 Section 4217 permits the Superior Court to modify a defendant’s sentence if DOC files an application for good cause shown—including a defendant’s serious medical illness or infirmity—and certifies that the defendant does not constitute a substantial risk to the community or himself.8 If Drummond’s “specific individual medical condition warrant[s] sentence modification, an application by DOC under § 4217 is the proper vehicle to deliver such relief.”9 NOW, THEREFORE, IT IS ORDERED that the Motion to Affirm is GRANTED and the judgment of the Superior Court is AFFIRMED.

BY THE COURT: /s/ Tamika R. Montgomery-Reeves Justice