Submitted: November 22, 2017
Below-Superior Court of the State of Delaware Cr. ID No.
VALIHURA, VAUGHN, and SEITZ, Justices.
T. Vaughn, Jr. Justice
24th day of January 2018, upon consideration of
the appellant's opening brief, the appellee's motion
to affirm, and the record below, it appears to the Court
appellant, Jerry Henry filed this appeal from a Superior
Court order denying his motion for reduction of sentence
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 Henry's
opening brief that his appeal is without merit. We agree and
record reflects that, on September 18, 2012, Henry resolved
two criminal cases by pleading guilty to Aggravated
Possession Tier 5 in Criminal ID No. 1201002933 and Attempted
Robbery in the First Degree, Possession of a Firearm During
the Commission of a Felony, and Conspiracy in the Second
Degree in Criminal ID No. 1204003166. He also admitted to
violations of his probation. After granting the State's
motion to declare Henry a habitual offender under 11 Del.
C. § 4214(a), the Superior Court sentenced Henry on
September 18, 2012 to more than fifty years of Level V
incarceration, suspended after twenty-five years for
decreasing levels of supervision. This Court affirmed the
Superior Court's denial of Henry's first motion for
postconviction relief under Superior Court Criminal Rule
August 18, 2017, Henry filed a motion for reduction of
sentence in Criminal ID No. 1201002933 and Criminal ID No.
1204003166. Henry argued his sentence should be reduced
because he fulfilled his obligations under a cooperation
agreement with the State. The Superior Court found the motion
was filed more than ninety days after the imposition of the
sentence, there were no extraordinary circumstances to
overcome the time bar, and Henry did not have an agreement
with the Superior Court. This appeal followed.
review the Superior Court's denial of a motion for
reduction of sentence for abuse of discretion. To the extent the
claims involves a question of law, we review the claim de
novo. Under Superior Court Criminal Rule 35(b),
the Superior Court may grant a motion for reduction of
sentence filed more than ninety days after sentencing (like
Henry's motion) "only in extraordinary
circumstances" or on the basis of an application filed
by the Department of Correction under 11 Del. C.
his opening brief, Henry argues that he complied with the
terms of a cooperation agreement with the State, but his
postconviction counsel failed to return the signed
cooperation agreement to the State. Henry also argues for the
first time that he had an oral agreement with the State to
give a statement about a murder in exchange for the State
filing a motion for reduction of sentence. Henry contends
that he gave a statement that led to another person pleading
Henry included a copy of a cooperation agreement with a date
of June 23, 2016 next to his signature. The signature spaces
for the State and Henry's postconviction counsel are
blank. Under the cooperation agreement, the Attorney
General's Office would file a motion to modify
Henry's sentence in Criminal ID No. 1204003166 if it
determined in its reasonable discretion that Henry fully
complied with the cooperation agreement and provided
substantial assistance in the investigation or prosecution of
those who committed the murder. Actual modification of the
sentence was solely within the discretion of the Superior
Superior Court did not err in denying Henry's motion for
reduction of sentence. A cooperation agreement that was not
signed by the State did not constitute extraordinary
circumstances supporting reduction of Henry's sentence.
As to Henry's claim that that he had an oral agreement
with the State, he did not raise this claim below and we will
not consider it for the first time on appeal.
THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED
and the judgment ...