Delaware Cases April 13, 2022: State v. Horta

Case Description

Date Submitted: January 13, 2021

ORDER

Jan R. Jurden, President Judge

Upon consideration of the Department of Correction's ("DOC") Application for Good Cause Shown pursuant to 11 Del . C . § 4217, the Board of Parole's ("Board") Recommendation, the State's Position Statement, the State's Response to the Board's Recommendation ("State's Response"), statutory and decisional law, and the record in this case, IT APPEARS THAT :

1. On October 29, 2009, the Defendant pled guilty to Manslaughter, Robbery First Degree, and Conspiracy Second Degree. By Order dated April 16, 2010,

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effective August 13, 2008, the Defendant was sentenced to 23 years at Level V, followed by decreasing levels of supervision and probation.

2. On June 9, 2021, pursuant to 11 Del . C . § 4217, the DOC filed an application ("Application") with the Board, recommending that the Level V portion of the Defendant's sentence be modified as follows:

It is recommended that the remaining Level 5 balance in case #0808015952 be suspended immediately for Level 3 GPS hold at Level V until GPS is available. All remaining levels and conditions shall remain unchanged.

The DOC cited "Medical Only" as the good cause supporting its recommendation. The DOC states that the Defendant is a qualified candidate for a sentence modification because he "requires extensive medical care with a high risk of falls and injuries due to brain cancer with a poor prognosis."

3. On August 24, 2021, the State submitted a letter ("State's Position Statement") to the Board of Parole opposing the sentence modification. The State questioned the severity of Defendant's medical condition, arguing that the

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Defendant had not been housed in the infirmary since June 14, 2021, a fact which the State asserted is indicative of Defendant's ability to "do all the activities of his daily living." In addition, the State noted that based on the Defendant's November 1, 2017 LSI-R (Level Service Inventory - Revised) assessment, Defendant was at "High Risk for recidivism." Last, the State argued that the Board of Parole failed to provide enough information demonstrating that the Defendant no longer poses a risk to the community.

4. On August 31, 2021, the Board held a hearing to determine whether to recommend a sentence modification. Upon consideration of the Defendant's testimony, the DOC's Application, and the State's Position Statement, the Board found:

The Department of Correction has shown "good cause" for sentence modification in this case.

The Department of Correction has met the intention of 11 Del. C. §4217(b) by stating that the release of the offender into the community would not constitute a substantial risk to the community or himself.

The offender is currently being treated for metastatic astrocytoma (brain cancer).

Based on these findings, the Board recommended that the Defendant's sentence be modified as follows:

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Balance of sentence suspended for six (6) months of Level IV Home Confinement followed by Level III community supervision in accordance with SB 50. All other aspects of sentence to remain the same.

5. On November 15, 2021, the Court ordered the State to file a response to the DOC's § 4217 Sentence Modification. The State filed its response on January 13, 2022. In the State's Response, the State clarified that its opposition to the sentence modification was because it did not have an updated report on the Defendant's medical condition. The DOC provided that updated report on December 8, 2021. In addition to that report, the DOC also provided "Progress Notes" from the Defendant's December 7, 2021 MRI. Upon review of the updated medical report and the most recent MRI report, the State advised the Court:

In light of the most updated information the State cannot argue Mr. Horta does not have a serious medical illness. The issue left to the Court is whether his illness is at the present extreme enough to warrant the requested relief. The State leaves this determination to the sound judgment of the Court.

6. Pursuant to 11 Del . C . § 4217(b), the Court may modify a defendant's sentence "solely on the basis of an application filed by the Department of Correction for good cause shown which certifies that the release of the defendant shall not

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constitute a substantial risk to the community or the defendant's own self." Good cause includes but is not limited to, "rehabilitation of the offender, serious medical illness, or infirmity of the offender and prison overcrowding." Pursuant to 11 Del . C . § 4217(e), the Court, upon receipt of a recommendation of the Board of Parole, "may in its discretion grant or deny the application for modification of sentence." If the defendant's "specific individual medical condition warrant[s] sentence modification, an application by DOC under § 4217 is the proper vehicle to deliver such relief."

7. Based on the record before the Court, the Defendant's brain cancer qualifies as a serious medical illness. The Defendant has a history of metastatic astrocytoma (brain cancer) and associated surgeries and procedures. According to the Bureau of Healthcare Substance Abuse & Mental Health's ("BHSAMH") summary dated June 4, 2021, the Defendant: (1) received chemotherapy treatment for his brain cancer; (2) has been frequently housed in the infirmary for ongoing medical care; (3) has been noted by his treating surgeon as high risk for falls and injuries; and (4) has developed seizures, headaches, and worsened vision as a

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consequence of his brain cancer. Regarding the Defendant's prognosis, the BHSAMH concluded:

With a high grade brain cancer (GBM) such [as] this patient has and with the fact that this is a recurrent cancer, patient[']s prognosis is poor.

As of December 8, 2021, the DOC is monitoring the Defendant in four month increments by MRI to look for potential recurrence of the cancer.

8. The DOC, the agency that has supervised the Defendant for over thirteen years, has certified that the Defendant does not pose a substantial risk to the community or himself. The Board supports the DOC's assessment. Based on the record before it, the Court finds good cause to grant modification pursuant to 11 Del . C . § 4217. Consequently, the Court hereby modifies the Defendant's Manslaughter sentence (PN08-09-0904) as follows:

- The defendant is placed in the custody of the Department of Correction for 23 year(s) at Supervision Level 5 with credit for 13 years, 7 months and 23 days

- Suspended immediately for 12 month(s) at Supervision Level 3 GPS

- Followed by 6 month(s) Supervision Level 3.

The defendant may be released from Supervision Level 5 as soon as the GPS is in place.

All previous terms and conditions shall remain unchanged.

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NOW, THEREFORE, IT IS HEREBY ORDERED that the Department of Correction's Application for Good Cause Shown pursuant to 11 Del. C. § 4217 is GRANTED .

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