Submitted: October 21, 2019
Below-Superior Court of the State of Delaware Cr. ID
VALIHURA, VAUGHN, and TRAYNOR, Justices.
L. Valihura, Justice
consideration of the appellant's opening brief, the
State's motion to affirm, and the record below, it
appears to the Court that:
appellant, Leroy Shelley, appeals from the Superior
Court's July 31, 2019 order denying his motion to vacate
his sentence. The State has filed a motion to affirm the
judgment below on the ground that it is manifest on the face
of Shelley's opening brief that his appeal is without
merit. We agree and affirm.
2007, a Superior Court jury found Shelley guilty of two
counts of first degree robbery, two counts of second degree
kidnapping, two counts of possession of a firearm during the
commission of a felony ("PFDCF"), and one count of
second degree conspiracy. Following a presentence
investigation, the Superior Court sentenced Shelley to an
aggregate of twenty-four years, six months of Level V
incarceration, suspended after eighteen years, six months for
eighteen months of Level III probation. Shelley did not
appeal his convictions or sentence.
Shelley subsequently filed several motions challenging his
conviction and sentence, including three motions for
postconviction relief,  a petition for writ of habeas corpus,
two motions filed under Superior Court Rule 35 ("Rule
35"),  all of which were denied. In July 2019,
Shelley again moved to vacate his sentence under Rule 35,
claiming that the Superior Court trial judge had not advised
him of his right to appeal as required by Superior Court
Criminal Rule 32(a)(2). Shelley asked the court to vacate his
sentence and re-sentence him, in order to permit Shelley the
opportunity to file a direct appeal. Because Shelley's
sentence did not exceed the statutory limits or violate the
Double Jeopardy Clause, the Superior Court treated the motion
as one alleging that Shelley's sentence had been imposed
in an illegal manner under Rule 35(a) and denied it as
untimely. Shelley did not appeal.
July 26, 2019, Shelley filed another motion to vacate his
sentence under Rule 35, arguing that the sentencing
judge's failure to inform him of his right to appeal
constituted "extraordinary circumstances"
sufficient to excuse the untimely filing of the motion. The
Superior Court concluded that the "extraordinary
circumstances" exception applies only to a motion to
modify a sentence, which Shelley's motion was not.
Accordingly, it denied the motion. This appeal followed.
appeal, Shelley argues: (i) that the trial court's
failure to inform him of his right to appeal constituted
plain error, and (ii) that the Superior Court abused its
discretion in denying his Rule 35 motion because the trial
court's failure to advise him of his right to appeal
constituted court error and therefore excused his untimely
request for relief.
a preliminary matter, because Shelley did not present these
arguments to the Superior Court, this Court will not
ordinarily entertain them on appeal. In any event, Shelley's
Rule 35 motion is time-barred and Shelley has not
demonstrated extraordinary circumstances to excuse the
untimely filing. "Extraordinary circumstances" are
circumstances that "specifically justify the
delay," are "entirely beyond a petitioner's
control," and "have prevented the applicant from
seeking the remedy on a timely basis." At a minimum,
Shelley could have raised the trial court's alleged
failure to advise him of his right to appeal in postconviction
proceedings. More importantly, the record belies
Shelley's substantive claim that he was unaware of his
right to appeal. The transcript of the sentencing hearing
reflects that the trial judge referenced the appeals
process and that Shelley carefully preserved
issues, specifically for the purpose of appeal.
THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.