MARTIN E. FOUNTAIN, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: March 15, 2017
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA, and SEITZ, Justices.
Collins J. Seitz, Jr. Justice.
4th day of May 2017, upon consideration of the
appellant's opening brief, the State's motion to
affirm, and the record below, it appears to the Court that:
appellant, Martin E. Fountain, filed this appeal from the
Superior Court's denial of his motion for sentence
reduction under Superior Court Criminal Rule 35(b) and his
motion for reargument. The State of Delaware has filed a
motion to affirm the judgment below on the ground that it is
manifest on the face of Fountain's opening brief that his
appeal is without merit. We agree and affirm.
March 19, 2003, Fountain was convicted, following a two-day
jury trial, of two counts of Possession with Intent to
Deliver Cocaine, two counts of Possession with Intent to
Deliver Cocaine Within 1, 000 Feet of a School, two counts of
Delivery of Cocaine Within 300 Feet of a Park, two counts of
Possession of Drug Paraphernalia, and one count of
Unauthorized Use of Food Stamps. Fountain was sentenced to
103 years of Level V incarceration, suspended after 30 years
and 8 months for decreasing levels of supervision. This Court
affirmed Fountain's convictions and sentences on direct
appeal. On May 16, 2016, this Court held 11
Del. C. § 3901(d), which was amended effective
July 9, 2014 to give judges discretion to impose either
concurrent or consecutive sentences, did not apply
retroactively to Fountain's sentences.
July 11, 2016, Fountain filed a motion for sentence reduction
under Rule 35(b). Fountain argued extraordinary circumstances
supported reduction of his sentence because he had completed
numerous rehabilitative programs while incarcerated and
because his sentence constituted cruel and unusual punishment
in violation of the Eighth Amendment of the United States
Constitution. The State opposed the motion. In an order dated
September 12, 2016, the Superior Court found Fountain's
motion was untimely and failed to demonstrate extraordinary
September 13, 2016, Fountain filed a reply to the State's
opposition, which the Superior Court treated as a timely
motion for reargument. The Superior Court denied the motion
for reargument in an order dated November 7, 2016. This
review the Superior Court's denial of a motion for
reduction of sentence for abuse of discretion, although
questions of law are reviewed de novo.Under Rule 35(b),
a motion for reduction of sentence filed more than 90 days
after imposition of the sentence will be considered only in
extraordinary circumstances or if the Department of
Correction files an application under 11 Del. C.
§ 4217. The Superior Court "will not consider
repetitive requests for reduction of sentence."
Superior Court did not err in denying Fountain's motion
for sentence reduction and motion for reargument. As the
State points out, Fountain's motion for sentence
reduction was repetitive because Fountain previously sought
reduction of his sentence under 11 Del. C. §
3901(d). Fountain also filed his motion for sentence
reduction more than 90 days after the imposition of his
sentence and failed to show extraordinary circumstances
justifying review of his sentence. Fountain's completion
of numerous rehabilitative programs in prison is commendable,
but does not serve as the basis for sentence reduction under
Rule 35(b). Fountain's conclusory Eighth Amendment
claim, which is based on his juvenile criminal history
(although he acknowledges he was not a juvenile at the time
of the crimes underlying the sentences he is currently
serving), does not constitute extraordinary circumstances
warranting reduction of his sentence under Rule 35(b).
THEREFORE, IT IS ORDERED that motion to affirm is GRANTED and
the judgment of the Superior Court is AFFIRMED.