HARRY W. ANDERSON, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: November 7, 2019
Below-Superior Court of the State of Delaware Cr. ID. Nos.
SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
T. Vaughn, Jr. Justice.
consideration of the appellant's opening brief, the
appellee's motion to affirm, and the record below, it
appears to the Court that:
appellant, Harry W. Anderson, filed this appeal from the
Superior Court's denial of his motion for sentence
modification. The State has moved to affirm the judgment
below on the ground that it is manifest on the face of
Anderson's opening brief that his appeal is without
merit. We agree and affirm.
Anderson pleaded guilty to Assault Second Degree in 2006. The
Superior Court sentenced him to eight years of incarceration,
suspended after one year for two years of probation. Anderson
violated his probation four times between 2007 and 2013. On
January 30, 2013, the Superior Court found Anderson guilty of
his fourth violation of probation ("VOP") and
sentenced him to six years at Level V suspended after four
years for six months at Level II probation. On appeal, this
Court affirmed the Superior Court judgment but remanded the
case to the Superior Court with instructions to credit
Anderson with 348 days for time previously
served. On remand, by order dated October 30,
2013, the Superior Court modified the fourth VOP sentence to
require that Anderson serve only four years in prison,
followed by six months of probation. This Court affirmed on
appeal from the October 30, 2013 modified sentence
order. On September 25, 2014, the Superior Court
modified the October 30, 2013 sentence order to give Anderson
credit for an additional 62 days previously served.
January 2013, Anderson pleaded guilty to two counts of
Burglary Third Degree. On September 20, 2013, the Superior
Court sentenced him as follows: (i) on the first count, as a
habitual offender, to six years of incarceration; and (ii) on
the second count, to three years of incarceration, suspended
for eighteen months of probation. On April 22, 2019, Anderson
filed a motion for sentence correction in the burglary case,
which the Superior Court denied on June 26, 2019.
Anderson then filed a motion for sentence modification in
both the burglary and assault cases, requesting that his
sentences in the burglary and assault cases be made to run
concurrently under 11 Del. C. § 3901(d).
Section 3901(d), as amended by the General Assembly in 2014,
authorizes the Superior Court to direct whether sentences
will run concurrently or consecutively, except that sentences
for certain offenses listed in the statute may not run
concurrently with any other sentence. In 2019, the General
Assembly amended Section 3901(d) to eliminate some of the
offenses for which sentences may not run concurrently.
Superior Court denied Anderson's motion on August 12,
2019. Anderson has appealed from the Superior Court's
August 12, 2019 order, and in his opening brief also requests
review of the Superior Court's June 26, 2019 order.
find no merit to Anderson's appeal. We review the
Superior Court's denial of a motion for modification of
sentence for abuse of discretion.Under Rule 35(b), a motion
for reduction or modification of sentence must be filed
within ninety days of sentencing, absent a showing of
"extraordinary circumstances." Rule 35(b) also
provides that the Superior Court will not consider repetitive
requests for sentence modification. Anderson's repetitive
motion for sentence modification was filed well beyond the
ninety-day limit. In any event, Anderson is subject to
sentencing under the version of Section 3901(d) in effect at
the time of his offenses, not at the time of his modified
This Court is without jurisdiction to consider Anderson's
untimely and procedurally improper attempt to appeal the
Superior Court's June 26, 2019 order. As the Court
observed when dismissing Anderson's first untimely
attempt to appeal the June 26 order, a timely notice of
appeal should have been filed on or before July 26,
2019. This Court lacks jurisdiction to consider
an untimely appeal, unless the appellant can demonstrate that
the failure to file a timely notice of appeal is attributable
to court-related personnel. Anderson cannot overcome the
jurisdictional defect by seeking review of the June 26 order
in his opening brief in this separate appeal.
Finally, we note that Anderson's motion to proceed in
forma pauperis was improvidently granted in this case.
Anderson falsely certified that he has never been found by
any court to have abused the judicial process by filing
frivolous or malicious litigation. In fact, in a 2015 appeal
from a Superior Court order denying a motion for correction
of sentence, this Court found that Anderson's repetitive,
meritless filings constituted an abuse of the judicial
THEREFORE, IT IS ORDERED that the Motion to Affirm is GRANTED
and the judgment ...