Submitted: December 2, 2019
Below-Superior Court of the State of Delaware Cr. ID No.
SEITZ, Chief Justice; VAUGHN, and TRAYNOR, Justices.
COLLINS J. SEITZ, JR., CHIEF 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, Charles Pernot, filed this appeal from the
Superior Court's denial of his motion for postconviction
relief. The State has moved to affirm the judgment below on
the ground that it is manifest on the face of Pernot's
opening brief that his appeal is without merit. We agree and
Pernot pleaded guilty to strangulation in 2014. The Superior
Court sentenced him to five years' imprisonment,
suspended after nine months for four years and three months
at Level IV (Crest), suspended after successful completion of
Crest for 18 months of probation. Pernot did not file a
direct appeal. In March 2017, while Pernot was on probation,
he was arrested on various drug-related charges. As a result,
he was also charged with a violation of probation
("VOP") in the strangulation case.
September 5, 2017, Pernot pleaded guilty to one count of drug
dealing. In exchange for his guilty plea, the State agreed to
dismiss the other drug-related charges and to recommend a
time-served sentence for the VOP in the strangulation case.
The plea agreement and the sentencing order in the
drug-dealing case both reflected that
agreement. Pernot did not appeal his drug-dealing
conviction or sentence.
Following a VOP hearing in the strangulation case on
September 20, 2017, the Superior Court found Pernot in
violation of his probation and sentenced Pernot to four years
and three months in prison, suspended after 187 days for
eighteen months of probation. Pernot did not file a direct
June 19, 2018, Pernot filed a motion for postconviction
relief, in which he challenged the sentence imposed for the
VOP in the strangulation case, contending that the agreement
in the drug-dealing case was that the VOP in the
strangulation case was to be discharged as unimproved. On
June 26, 2018, the Superior Court sent Pernot a letter
stating that, in light of the relief that Pernot sought, the
motion was more appropriately considered as a motion for
sentence modification or reduction, and not for
postconviction relief. The court then explained that the VOP
sentence imposed was appropriate and consistent with the plea
agreement in the drug-dealing case.
Nearly ten months later, in April 2019, Pernot sent the court
a letter acknowledging the court's June 2018 letter,
requesting a ruling on his motion for postconviction relief,
and again asserting that his understanding of the plea
agreement in the drug-dealing case was that he would be
discharged from probation as unimproved in the strangulation
case. In June 2019, Pernot filed a motion requesting that he
be provided with a transcript of the VOP hearing at State
expense, and in July 2019, Pernot sent another letter
requesting a ruling on his motion for postconviction relief.
On July 29, 2019, the Superior Court issued a letter order
denying the motion for postconviction relief and the motion
for the VOP transcript.
Pernot has appealed to this Court. He argues that the
Superior Court (i) deprived him of his due process rights by
considering the motion as a motion for sentence modification
or reduction, rather than as a motion for postconviction
relief; and (ii) acted with preconceived bias and breached
the plea agreement by denying the motion.
find no merit to Pernot's appeal. Rule 61 of the Superior
Court Criminal Rules establishes a procedure by which a
person may seek "to set aside the judgment of conviction
. . . on the ground that the court lacked jurisdiction or on
any other ground that is a sufficient factual and legal basis
for a collateral attack upon a criminal
conviction." Pernot's motion for postconviction
relief did not state any basis for setting aside the judgment
of conviction under which he was sentenced. Instead, it
argued that the court should have imposed a different
sentence. "Rule 35, not Rule 61, is the proper vehicle
for challenging a sentence," and the Superior Court
therefore did not err by considering the motion under Rule 35
instead of Rule 61.
Superior Court also did not err in denying the motion. We
review the Superior Court's denial of a motion for
modification of sentence for abuse of
discretion. Although the Superior Court did not deny
the motion as untimely, a motion for reduction or
modification of sentence must be filed within ninety days of
sentencing, absent a showing of "extraordinary
circumstances." Pernot filed his motion well beyond the
ninety-day limit. He has not demonstrated any extraordinary
circumstances, nor has he provided any support for his claim
that the Superior Court denied his motion on the basis of a
"preconceived bias." To the contrary, the ...