Submitted: October 20, 2017
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
L. Valihura Justice
2nd day of January 2018, upon consideration of the
appellant's opening brief and the appellee's motion
to affirm, it appears to the Court that:
Andre McDougal filed this appeal from the Superior
Court's order dated September 12, 2017, denying his
motion for correction of sentence. The State of Delaware has
moved to affirm the Superior Court's judgment on the
ground that it is manifest on the face of McDougal's
opening brief that the appeal is without merit.
McDougal pleaded guilty in 2008 to one count of Manslaughter,
a violent felony,  and was sentenced to twenty years of
incarceration suspended after three years for one year of
probation. McDougal was found guilty of violation of
probation ("VOP") in 2011 and was resentenced to
seventeen years of incarceration suspended after fifteen
years for two years of probation. When McDougal appealed the
VOP sentence to this Court, we affirmed the Superior
September 1, 2017, McDougal filed a motion for correction of
sentence under Superior Court Criminal Rule
35(a). McDougal claimed, for the third time, that
his VOP sentence was illegal because it exceeded the two-year
"suspension of sentence" limitation in 11 Del.
C. § 4333(b)(1). McDougal raised the same claim in prior
motions for correction of sentence that he filed in July and
August 2017. When denying McDougal's prior motions, the
Superior Court construed the motions as seeking a
modification of sentence and denied them under Rule
When considering McDougal's third motion for correction
of sentence, the Superior Court again determined that the
motion sought a modification of sentence. The court denied
the motion after ruling that it was both untimely and
repetitive under Rule 35(b) and because, contrary to
McDougal's claim, his VOP sentence was not governed by 11
Del. C. § 4333(b)(1). This appeal followed.
review the denial of a Rule 35 motion for abuse of discretion
and review questions of law de novo. In this case,
the record supports the Superior Court's determination
that 11 Del. C. § 4333(b)(1) did not apply in
McDougal's case because McDougal was sentenced under
§ 4333(d)(2). Subsection (d)(2) of § 4333 provides
that the limitations in subsection (b) do not apply to any
sentence imposed for any violent felony if the court
determines on the record-as it did in McDougal's
case-"that public safety will be enhanced by a longer
period of probation or suspension of
Having carefully considered the parties' submissions on
appeal, we affirm the Superior Court's denial of
McDougal's third motion for correction of sentence.
Whether viewed as a motion for correction of sentence under
Rule 35(a) or a motion for modification of sentence under
Rule 35(b), McDougal's motion properly was denied because
it was procedurally barred and had no merit.
THEREFORE, IT IS ORDERED that the State's motion to
affirm is GRANTED. The judgment of the Superior Court is