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Wallace v. State

Supreme Court of Delaware

February 17, 2014

GWENDOLYN S. WALLACE, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee

Submitted December 10, 2013.

Case Closed March 5, 2014.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Court Below--Superior Court of the State of Delaware in and for Kent County. Cr. ID No. 1203000756.

Before BERGER, JACOBS and RIDGELY, Justices.

OPINION

Jack B. Jacobs Justice.

ORDER

This 17th day of February 2014, upon consideration of the appellant's opening brief and the appellee's motion to affirm, it appears to the Court that:

(1) The appellant, Gwendolyn S. Wallace, filed this appeal from the Superior Court's August 16, 2013 denial of her motion for modification of sentence pursuant to Superior Court Criminal Rule 35(b) (" Rule 35(b)" ). The appellee, State of Delaware (" State" ), has moved to affirm the Superior Court's judgment on the ground that it is manifest on the face of the opening brief that the appeal is without merit.[1] We agree and affirm.

(2) The record reflects that on August 1, 2012, Wallace pled guilty to drug dealing and was sentenced to fifteen years at Level V, suspended after ninety days for six months at Level IV home confinement, followed by one year at Level III probation.[2] Thereafter, on May 6, 2013, Wallace was charged by administrative warrant with a violation of probation (" VOP" ).

(3) At a May 17, 2013 hearing, the Superior Court found Wallace guilty of VOP and resentenced her to fourteen years and three months at Level V, suspended after one year for eighteen months of probation. Wallace's appeal from the May 17, 2013 VOP conviction and sentence was dismissed as untimely filed.[3]

(4) On July 8, 2013, moved to modify the May 17, 2013 VOP sentence. By order dated August 16, 2013, the Superior Court denied that motion as without merit. This appeal followed.

(5) On appeal, Wallace devotes most of her opening brief to resurrecting substantive claims arising from the May 17, 2013 VOP proceeding. Claims arising from the VOP proceeding are procedurally improper on appeal from a denial of a motion for modification of sentence.[4]

(6) This Court reviews the Superior Court's denial of a modification of sentence for abuse of discretion.[5] Here, the Superior Court's August 16, 2013 denial of Wallace's motion for modification of sentence was not an abuse of discretion.

NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.


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