Submitted: February 13, 2019
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VAUGHN and SEITZ, Justices.
JAMES T. VAUGHN, JR. JUSTICE
careful consideration of the appellant's opening brief,
the State's motion to affirm, and the record on appeal,
it appears to the Court that:
appellant, Andre McDougal, filed this appeal from the
Superior Court's denial of his seventh motion for
modification of sentence. The State has filed a motion to
affirm the judgment below on the ground that it is manifest
on the face of McDougal's opening brief that his appeal
is without merit. We agree and affirm.
record reflects that McDougal pleaded guilty in September
2008 to a single count of manslaughter. The Superior Court
sentenced McDougal to twenty years at Level V incarceration,
suspended after three years for one year of Level III
probation. McDougal did not file a direct appeal of his
conviction or sentence.
January 2010, the Superior Court found McDougal in violation
of the terms of his probation and re-sentenced McDougal to
seventeen years at Level V, suspended for seventeen years at
Level IV, in turn to be suspended after six months for one
year of Level III probation. In March 2011, the Superior
Court again found McDougal had violated the terms of his
probation and re-sentenced him to seventeen years at Level V,
to be suspended after fifteen years for two years of Level
III probation. McDougal appealed and this Court
June 2017, McDougal filed a motion to correct his sentence.
The Superior Court granted the motion and modified the length
of McDougal's Level III probation from two years to
eighteen months. Between July of 2017 and August of 2018,
McDougal filed five additional motions to correct his
sentence, all of which were denied by the Superior
January 7, 2019, McDougal filed another motion for
modification/reduction of sentence under Superior Court
Criminal Rule 35(b). McDougal asked the Superior Court to
modify his sentence to suspend the remainder of his Level V
sentence for Level III probation to run concurrent with a
Level V sentence McDougal is serving for other convictions.
He also claimed his sentence violated double jeopardy because
he was sentenced for both the VOP and the underlying charges
that served as the basis of the VOP. The Superior Court
denied the motion, finding it untimely filed, repetitive, and
meritless. This appeal followed.
McDougal raises two issues in his opening brief on appeal.
First, McDougal claims the Superior Court abused its
discretion when it deemed McDougal's motion was untimely
filed. Second, McDougal argues his VOP sentence constituted a
double jeopardy violation and otherwise violated his due
review the Superior Court's denial of a motion for
modification of sentence under Rule 35(b) for abuse of
discretion. This standard is highly
deferential. Under Rule 35(b), a motion for reduction
of sentence must be filed within 90 days of sentencing unless
the defendant can establish "extraordinary
circumstances." Rule 35(b) also provides that the Superior
Court will not consider repetitive requests for sentence
McDougal suggests the Superior Court improperly denied his
motion as untimely because he seeks modification of his
probation sentence and Rule 35(b) provides the Superior Court
may reduce the conditions or term of probation at any time.
But, in reality, McDougal asked the Superior Court to modify
his Level V sentence by suspending it. The motion was filed
well after the 90-day period allowed by Rule 35(b) for the
Superior Court to reduce a prison sentence. Moreover, the
motion was McDougal's seventh motion to correct his
sentence. The Superior Court did not abuse its discretion in
denying the motion as untimely and repetitive.
Superior Court also did not abuse its discretion in finding
McDougal's Rule 35 motion lacked merit. We have
previously found that McDougal was afforded the due process
to which he was entitled in a VOP proceeding. Further,
McDougal's argument that the Superior Court's
imposition of a sentence for both his VOP and the underlying
crimes violates double jeopardy is incorrect. There is a
material distinction between prosecution for a criminal
offense and revocation of probation in a previously imposed
sentence. When McDougal violated the terms of his
probation, he received deferred punishment for his
manslaughter conviction. He received a separate and distinct
sentence for the crimes that served as the basis for his VOP.
Double jeopardy is not ...