JOHN J. SMITH, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee.
Submitted: November 17, 2017
Below-Superior Court of the State of Delaware, Cr. ID.
VALIHURA, VAUGHN, and SEITZ, Justices.
T. Vaughn, Jr. Justice
22nd day of January 2018, upon consideration of
the parties' briefs and the record below, it appears to
the Court that:
appellant, John Smith, filed this appeal from the Superior
Court's order dated June 28, 2017, denying his motion for
modification of sentence and "petition for rule to show
cause." We find no merit to Smith's appeal.
Accordingly, we affirm the Superior Court's judgment.
record reflects that Smith was indicted in January 2014 on
multiple criminal charges including Aggravated Menacing and
Possession of a Firearm During the Commission of a Felony.
Smith was on probation at the time of his indictment on the
new charges. As a result, Smith also was charged with a
violation of probation ("VOP") in Cr. ID
0908015857. On July 7, 2014, Smith pled guilty to Aggravated
Menacing and Possession of a Firearm During the Commission of
a Felony ("PFDCF") in Cr. ID 1309013302. The
Superior Court ordered a presentence investigation and
days later, on July 9, 2014, the Superior Court found Smith
guilty of his fourth VOP in Cr. ID 0908015857. The Superior
Court sentenced him on the VOP, effective February 1, 2014,
to a total period of five years at Level V incarceration, to
be suspended after serving three years in prison for
decreasing levels of supervision ("the VOP
Sentence"). The VOP Sentence order noted that the
effective date of the sentence took into account the time
Smith spent in prison awaiting resolution of his new charges.
February 13, 2015, the Superior Court sentenced Smith on his
new charges ("the 2015 Sentence"). On the firearm
offense, the Superior Court sentenced Smith, effective
February 7, 2014, to six years at Level V
incarceration.On the aggravated menacing offense, the
Superior Court sentenced Smith to five years at Level V, to
be suspended immediately for decreasing levels of
Smith did not appeal. Instead, on February 24, 2015, Smith
filed a motion for modification of sentence, requesting the
Superior Court to run the VOP Sentence concurrently with the
2015 Sentence. The Superior Court denied that motion. Smith
did not appeal. On May 12, 2015, Smith filed another motion
for modification of sentence, requesting the Superior Court
to reduce the 2015 Sentence from six years in prison to five
years in prison and to run his 2015 Sentence concurrently
with his VOP Sentence. The Superior Court denied that motion.
Smith did not appeal. On September 4, 2015, Smith filed a
motion for correction of sentence, addressed to both his VOP
Sentence and his 2015 Sentence. He requested the Superior
Court to correct his sentence to allow him to serve his 2015
Sentence before his VOP Sentence. The Superior Court denied
that motion as moot. Smith did not appeal.
April 7, 2017, Smith filed another motion for modification of
sentence, asking the Superior Court to reduce the Level V
portion of his 2015 Sentence and to order that the Level IV
portion of his 2015 Sentence be completed on Home
Confinement. On May 26, 2017, Smith also filed a motion for a
rule to show cause, requesting that the Department of
Correction ("DOC") be held in contempt for failing
to give him credit against his 2015 Sentence for all of the
time he was held in prison since February 7, 2014, which was
the effective date of his 2015 Sentence.
June 28, 2017, the Superior Court denied both of Smith's
motions. As to his request for a modification of his 2015
Sentence, the Superior Court noted that his motion was barred
under Superior Court Criminal Rule 35(b) because it was both
untimely and repetitive. As to his motion for a rule to show
cause, the Superior Court misconstrued Smith's argument
as an inappropriate challenge to the DOC's discretionary
decision regarding Smith's program placement and denied
it accordingly. Smith now appeals.
gist of Smith's argument on appeal is that the DOC has
wrongly credited the year that he spent in prison between
February 2014, when he was first picked up by authorities,
and February 2015, when he was sentenced on his 2015
Sentence, against his three year VOP Sentence instead of
against the mandatory prison term of his 2015 Sentence.
According to Smith, the DOC's failure to credit his time
served against the 2015 Sentence, which contains a minimum
mandatory term of incarceration, means that he will have to
wait an extra year before he can request the DOC to file a
sentence modification motion on his behalf under 11 Del.
C. § 4217(b).
Assuming without deciding that Smith's motions in the
Superior Court were procedurally proper,  we conclude that
Smith is not entitled to the relief he seeks. As to
Smith's motion for modification of sentence, the Superior
Court did not err in finding that his motion was both
untimely and repetitive. As to his motion for a rule ...