         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 MARCO ORTIZ-BEDOLLA,                     §
                                          §   No. 159, 2019
       Defendant Below–                   §
       Appellant,                         §
                                          §
       v.                                 §   Court Below–Superior Court
                                          §   of the State of Delaware
 STATE OF DELAWARE,                       §
                                          §   Cr. ID No. 1704007429
       Plaintiff Below–                   §
       Appellee.                          §

                          Submitted: May 30, 2019
                          Decided:   July 17, 2019

Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices

                                      ORDER

      After 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:

      (1)    Marco Ortiz-Bedolla filed this appeal from the Superior Court’s denial

of his 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 the opening brief

that his appeal is without merit. We agree and affirm.

      (2)    The record reflects that Ortiz-Bedolla pled guilty in September 2017 to

two charges of second degree burglary and one charge of second degree conspiracy.

In exchange for his plea, the State entered a nolle prosequi on forty-five other

charges pending against Ortiz-Bedolla. The Superior Court immediately sentenced
Ortiz-Bedolla as follows: (i) for second degree burglary, to 8 years of Level V

incarceration with credit for time served, suspended after 1 year and upon the

successful completion of the Key Program for 1 year of residential substance abuse

treatment, suspended upon successful completion for 1 year of Level III probation;

(ii) for second degree burglary, to 8 years of Level V incarceration, suspended after

1 year for Level III probation; and (iii) for second degree conspiracy, to 2 years of

Level V incarceration, suspended for 1 year of Level III probation. Ortiz-Bedolla

did not appeal.

      (3)    On February 13, 2019, Ortiz-Bedolla filed a motion for modification of

sentence under Superior Court Criminal Rule 35(b), requesting that the Superior

Court permit him to complete a drug treatment program while on probation instead

of while incarcerated. He stated that completion of the court-ordered drug treatment

program was not possible “with Delaware prisons [sic] current issues” and that he

was running out of time to start and complete the court-ordered drug treatment

program without “doing more time.”            On February 28, 2019, Ortiz-Bedolla

supplemented his motion to modify with a letter advising the court that he wished to

be released to care for his brother. On March 27, 2019, the Superior Court denied

the Rule 35(b) motion, finding Ortiz-Bedolla was sentenced under the provisions of

a plea agreement that had been negotiated between the State and the defense, the




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motion was untimely, and there were no extraordinary circumstances to warrant the

modification of his sentence. This appeal followed.

       (4)    In his opening brief, Ortiz-Bedolla argues for the first time that the

phrase “extraordinary circumstances” is impermissibly vague, claims the

requirement that he complete the Key Program “irreparably and unnecessarily”

prolongs the term of incarceration to which he was sentenced, and alleges he was

personally assured by the Superior Court that his motion to modify would be granted.

For the following reasons, we find Ortiz-Bedolla’s claims to be without merit.

       (5)    Rule 35(b) provides that a court may reduce a sentence of imprisonment

on a motion made within ninety days of sentencing.1 A court may consider a motion

for reduction of sentence made more than ninety days after the imposition of a

sentence in “extraordinary circumstances.”2 We review the Superior Court’s denial

of a motion for modification of sentence under Rule 35(b) for abuse of discretion.3

This standard is highly deferential.4

       (6)    As a preliminary matter, because Ortiz-Bedolla did not present his

argument that the term “extraordinary circumstances” is unconstitutionally vague to




1
  Super. Ct. Cr. R. 35(b).
2
  Id.
3
  Benge v. State, 101 A.3d 973, 976-77 (Del. 2014).
4
  Id. at 977.


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the Superior Court, this Court will not entertain it.5 In any event, Ortiz-Bedolla’s

claim is without merit. The doctrine of unconstitutional vagueness applies to statutes

that proscribe criminal activity.6 Rule 35(b) does not criminalize any activity; it

merely establishes a mechanism whereby a defendant may seek relief from a

previously imposed sentence.7 Accordingly, the rule does not implicate the doctrine

of unconstitutional vagueness. Finally, within the context of a rule providing an

equitable safety valve, the term extraordinary circumstances is not vague, it refers to

an unusual and compelling set of conditions that the trial court reasonably deems

sufficient to amend a sentence.

       (7)    Ortiz-Bedolla next asserts that he will be unable to complete the Key

Program without serving additional Level V time. Ortiz-Bedolla has provided no

factual support for this contention. In any event, Ortiz-Bedolla fails to understand

that the Key Program is not a mandatory part of his sentence but, rather, a pre-

requisite for the possibility of reduced levels of supervision.8 If he fails to complete

the program, the only consequence is that he will have to serve the full original

sentence of eight years in prison and he will not benefit from progressively reduced



5
  Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for
review; provided, however, that when the interests of justice so require, the Court may consider
and determine any question not so presented.”).
6
  Sanders v. State, 585 A.2d 117, 127 (Del. 1990).
7
  See State v. Lewis, 797 A.2d 1198, 1201 (Del. 20002) (A Rule 35(b) motion is directed to the
Superior Court’s discretion and is “essentially a plea for leniency.”).
8
  Phillips v. Kearney, 2003 WL 2004392, at *7 (D. Del. Apr. 21, 2003).


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levels of supervision.9 The maximum term of Ortiz-Bedolla’s sentence is not

contingent upon his completion of the Key Program, only the level of supervision at

which he serves that term.10 Accordingly, Ortiz-Bedolla’s claim affects a condition

of imprisonment but not its length or validity.11 That said, we do understand Ortiz-

Bedolla’s frustration. The sentence he received gave him hope that he would serve

much less Level V time if the Department of Correction had the resources to execute

the very specific condition the Superior Court imposed, a condition that did not give

the Department of Correction discretion to address Ortiz-Bedolla’s substance abuse

issues by alternative approaches and thereby offer him the same chance for less

Level V time. But, the Superior Court was within its discretion to craft the sentence

as it did and Ortiz-Bedolla’s understandable frustration provides us with no basis to

reverse.

        (8)     Finally, Ortiz-Bedolla suggests that the Superior Court indicated to him

during a February 19, 2019 restitution hearing—held after Ortiz-Bedolla filed his

initial motion for modification of sentence on February 13, 2019—that his motion

for modification would be granted. This Court is unable to review this claim because

Ortiz-Bedolla failed to order the transcript of the restitution hearing. As this Court

has held many times, it is the appellant’s obligation to provide those portions of the


9
  Id., at *8.
10
   Id.
11
   Id.


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record necessary to give the Court a fair and accurate account of the context in which

the alleged errors arose.12 There is no record on appeal showing that the Superior

Court made any representation whatsoever to Ortiz-Bedolla about the status of his

then-pending Rule 35(b) motion. Ortiz-Bedolla’s failure to request and include

adequate transcripts of the proceedings, as required by the rules of the Court,

precludes appellate review of this questionable claim of error.

          NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                                        BY THE COURT:
                                                        /s/ Leo E. Strine, Jr.
                                                        Chief Justice




12
     Trioche v. State, 525 A.2d 151, 154 (Del. 1987).


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