           IN THE SUPREME COURT OF THE STATE OF DELAWARE

WESLEY J. FISHER,                       §
                                        §     No. 326, 2015
      Defendant Below,                  §
      Appellant,                        §     Court Below—Superior Court
                                        §     of the State of Delaware
      v.                                §
                                        §     Cr. ID No. 1110018244
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below,                  §
      Appellee.                         §


                          Submitted: May 20, 2016
                          Decided:   July 19, 2016

Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices.

                                     ORDER

      This 19th day of July 2016, upon consideration of the appellant’s opening

brief and the appellee’s motion to affirm, it appears to the Court that:

      (1)    The appellant, Wesley J. Fisher, filed this appeal from the Superior

Court’s denial of his motion for resentencing. The State of Delaware has moved to

affirm the Superior Court’s judgment on the ground that it is manifest on the face

of the opening brief that the appeal is without merit. We agree and affirm.

      (2)    Following his guilty plea to two counts of Drug Dealing, Fisher was

sentenced on March 5, 2012 to two consecutive four-year terms of unsuspended

Level V incarceration. In June 2015, Fisher filed a “motion for resentencing under
House Bill 312” asking the Superior Court to resentence him to concurrent terms

of incarceration under a 2014 amendment of 11 Del. C. § 3901(d).1 The Superior

Court denied the motion, ruling that the sentence was appropriate for all the

reasons stated at the time of sentencing and that the motion was time-barred. This

appeal followed.

       (3)    Superior Court Criminal Rule 35(b) provides that the court may

modify a sentence of imprisonment on a motion made within ninety days after the

sentence is imposed.2       When a motion is filed more than ninety days after

sentencing, the court can consider the motion only in extraordinary circumstances.3

The denial of a motion under Rule 35(b) is reviewed for abuse of discretion.4

       (4)    Here, the Superior Court did not abuse its discretion when denying

Fisher’s motion for resentencing. The amendment of § 3901(d), which gives

judges the discretion to impose concurrent terms of imprisonment for certain

crimes, does not apply retroactively to sentences imposed before July 9, 2014, the

effective date of the amendment.5 Fisher was sentenced in 2012.




1
  See 11 Del. C. § 3901 (governing term of imprisonment) (Supp. 2016).
2
  Del. Super. Ct. Crim. R. 35(b).
3
  Id.
4
  State v. Lewis, 797 A.2d 1198, 1202 (Del. 2002).
5
  Fountain v. State, __ A.3d __, 2016 WL 2927750, at *4-5 (Del. May 16, 2016).

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

GRANTED. The judgment of the Superior Court is AFFIRMED.

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




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