QUENTIN A. WILKERSON, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: September 25, 2017
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
Strine, Jr. Chief Justice.
13th day of November 2017, upon consideration of the
appellant's opening brief, the appellee's motion to
affirm, and the record below, it appears to the Court that:
appellant, Quentin A. Wilkerson, filed this appeal from a
Superior Court order denying his motion for sentence
modification under Superior Court Criminal Rule 35(b). The
State of Delaware has filed a motion to affirm the judgment
below on the ground that it is manifest on the face of
Wilkerson's opening brief that his appeal is without
merit. We agree and affirm.
record reflects that, on April 29, 2014, Wilkerson pled
guilty to one count of Dealing in Child Pornography and two
counts of Possession of Child Pornography. Wilkerson was
sentenced as follows: (i) for Dealing in Child Pornography,
twenty-five years of Level V incarceration, suspended after
three years and six months for decreasing levels of
supervision; and (ii) for each count of Possession of Child
Pornography, three years of Level V incarceration, suspended
for three years of Level III probation. The Level III
probation was to run consecutively. Wilkerson was also
prohibited from having any contact with any minor children,
except for his own children, and from owning or possessing
any electronic equipment that could access the internet.
Wilkerson did not appeal the Superior Court's judgment.
This Court affirmed the Superior Court's denial of
Wilkerson's first motion for postconviction
May 22, 2017, Wilkerson filed a motion for modification of
sentence. Wilkerson sought modification of the no contact
with minors (except his children) condition to no unlawful
contact with minors so he could attend his children's
school functions and his nieces and nephews could visit his
parents' house where he lives. He also sought
modification to have internet access and a cellphone with
internet capability and a camera because internet access and
a cell phone were necessary for reestablishment of his
transportation business and he could not find a cell phone
without a camera.
an order dated June 27, 2017, the Superior Court denied
Wilkerson's motion, and held that Wilkerson's
application was subject to the limitation set forth in Rule
35(b) for sentence reduction motions filed more than ninety
days after imposition of sentence. When the ninety-day
limitation in Rule 35(b) applies, the Superior Court will
only consider a motion for sentence reduction in
extraordinary circumstances or under 11 Del. C.
§ 4217. The Superior Court found Wilkerson's
sentence remained reasonable and appropriate given the nature
of his offenses. The Superior Court then found there were no
extraordinary circumstances to support consideration of
Wilkerson's motion, which was filed more than ninety days
after the imposition of his sentence. The Superior Court
noted that Probation and Parole confirmed Wilkerson could use
computers at the Department of Labor to apply for employment.
This appeal followed.
review the Superior Court's grant or denial of a motion
for modification of sentence for abuse of
discretion. Under this highly deferential standard,
" the test is whether "the trial court acted within
a zone of reasonableness or stayed within a 'range of
choice.'" As the State recognizes in its motion to
affirm, Wilkerson's motion was not subject to the
ninety-day limitation in Superior Court Criminal Rule 35(b),
which applies to motions for reduction of sentences of
imprisonment. Wilkerson was on probation, and not
seeking to reduce a term of imprisonment. The Superior Court
"may . . . reduce the fine or term or conditions of
partial confinement or probation, at any
his opening brief, Wilkerson argues for the first time that
his Level IV Home Confinement interferes with employment he
obtained after he filed his first motion for modification of
sentence, he needs internet access for his new employment,
and the internet restrictions violate his First Amendment
rights under Packingham v. North
Carolina. Wilkerson did not make these arguments in
the Superior Court. We will not consider them for the first
time on appeal. To the extent Wilkerson does not raise
claims he made in the Superior Court, he has waived those
Although the Superior Court mistakenly applied the ninety-day
limitation to Wilkerson's motion to modify the terms of
his probation, we nonetheless affirm the Superior Court's
denial of Wilkerson's motion. In denying Wilkerson's
motion, the Superior Court noted that it had reviewed
Wilkerson's presentence report and considered the nature
of his crimes before imposing the original sentence. The
Superior Court concluded the sentence remained appropriate in
light of the nature of the offenses. Given the nature of
Wilkerson's crimes (use of the internet to obtain and
view child pornography) and the arguments in his motion, the
Superior Court did not act unreasonably in denying
Wilkerson's motion to modify his sentence.
THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED
and the judgment ...