         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 TROY D. MCNALLY,                       §
                                        §
       Defendant Below,                 §   No. 348, 2017
       Appellant,                       §
                                        §   Court Below—Superior Court
       v.                               §   of the State of Delaware
                                        §
 STATE OF DELAWARE,                     §   Cr. ID No. 0701005246 (K)
                                        §
       Plaintiff Below,                 §
       Appellee.                        §

                          Submitted: October 11, 2017
                          Decided:   November 27, 2017

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

                                    ORDER

      This 27th day of November 2017, upon consideration of the appellant’s

opening brief, the appellee’s motion to affirm, and the record below, it appears to

the Court that:

      (1)    The appellant, Troy D. McNally, 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 McNally’s opening brief that his

appeal is without merit. We agree and affirm.

      (2)    The record reflects that, on February 1, 2008, a Superior Court jury

found McNally guilty of four counts of Reckless Endangering in the First Degree,
four counts of Possession of a Firearm during the Commission of a Felony, and two

counts of Criminal Mischief. The charges arose from gunshots fired at an occupied

house and the car of McNally’s ex-girlfriend. McNally was sentenced to twelve

years and five months of non-suspended Level V time. Twelve of those years were

mandatory under 11 Del. C. § 1447A. This Court affirmed the Superior Court’s

judgment on direct appeal.1 In 2012, this Court affirmed the Superior Court’s denial

of McNally’s first motion for postconviction relief under Superior Court Criminal

Rule 61.2

         (3)    On July 17, 2017, McNally filed a motion for reduction of sentence.

McNally argued his sentence should be suspended for time served because: (i) he

was acquitted of similar charges; (ii) he had no felony record at the time of his

convictions; (iii) no firearm was recovered; (iv) no one was injured; and (v) there

were no witnesses. In an order dated August 14, 2017, the Superior Court denied

the motion. 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 the sentence remained appropriate for all the reasons

stated at sentencing. This appeal followed.




1
    McNally v. State, 980 A.2d 364 (Del. 2009).
2
    McNally v. State, 2012 WL 3552923 (Del. Aug. 20, 2012).
                                               2
       (4)     We review the Superior Court's denial of a motion for reduction of

sentence for abuse of discretion.3 To the extent the claims involve a question of law,

we review the claim de novo.4           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 McNally’s motion) “only in extraordinary circumstances”

or on the basis of an application filed by the Department of Correction under 11 Del.

C. § 4217.5

       (5)     In his opening brief, McNally argues his convictions constitute a

miscarriage of justice under Superior Court Criminal Rule 61(i)(5). McNally did

not raise these arguments in the Superior Court. We will not consider them for the

first time on appeal.6 In any event, a Rule 61 motion for postconviction relief, not a

Rule 35(b) motion for reduction of sentence, is the proper vehicle for challenging a

conviction.7

       (6)     The Superior Court did not err in denying McNally’s motion for

reduction of sentence. As the State points out, the Superior Court could not reduce

the mandatory portion (twelve years of Level V incarceration) of McNally’s


3
  Jackson v. State, 2016 WL 4547896, at *2 (Del. Aug. 31, 2016).
4
  Id.
5
  Super. Ct. Crim. R. 35(b).
6
  Supr. Ct. R. 8.
7
  Super. Ct. Crim. R. 61(a)(2) (providing Rule 61 is exclusive means for challenging conviction).
See also Wilmer v. State, 2015 WL 3818939, at *2 (Del. June 16, 2015) (recognizing challenges
to conviction could only be brought in a Rule 61 motion). We note that McNally would have to
satisfy the procedural bars of Rule 61(d)(2) if he filed a Rule 61 motion in the Superior Court.
                                               3
sentence.8 McNally failed to establish extraordinary circumstances supporting

reduction of the non-mandatory portion of his sentence (five months of Level V

incarceration).

       NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED.


                                            BY THE COURT:

                                            /s/ Karen L. Valihura
                                            Justice




8
  State v. Sturgis, 947 A.2d 1087, 1092-93 (Del. 2008) (holding the Superior Court cannot reduce
the mandatory portion of a sentence under Rule 35(b)).
                                               4
