          IN THE SUPREME COURT OF THE STATE OF DELAWARE

 PATRICK HENRY,                         §
                                        §
        Defendant Below,                §   No. 362, 2015
        Appellant,                      §
                                        §   Court Below—Superior Court
        v.                              §   of the State of Delaware
                                        §
 STATE OF DELAWARE,                     §   Cr. ID Nos. 0609021733 and
        Plaintiff Below,                §   0610025087
        Appellee.                       §

                           Submitted: May 20, 2016
                           Decided:   July 18, 2016

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

                                 ORDER

        This 18th day of July 2016, 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, Patrick Henry, filed this appeal from the Superior

Court’s denial of his motion for modification of sentence. The State of Delaware

filed a motion to affirm the judgment below on the ground that it was manifest on

the face of Henry’s opening brief that the appeal was without merit. The matter

was stayed pending the outcome of another appeal, Fountain v. State, No. 315,
2015. The Court issued its opinion in Fountain on May 16, 20161and the stay was

lifted in this appeal. We conclude that the motion to affirm should be granted.

       (2)    The record reflects that, on March 19, 2007, a Superior Court jury

found Henry guilty of Trafficking Cocaine, Possession with Intent to Deliver

Cocaine, and four counts of Possession of Drug Paraphernalia. On March 28,

2007, in a different case, a Superior Court jury found Henry guilty of Possession

with Intent to Deliver Cocaine and Possession of Drug Paraphernalia. Henry was

declared a habitual offender and was sentenced, in both cases, to a total of thirty-

nine years of Level V incarceration, suspended after twenty-seven years for

eighteen months of Level III probation. On a consolidated appeal of both cases,

this Court affirmed the Superior Court’s judgment.2

       (3)    On September 3, 2014, Henry asked the Superior Court to make his

sentences concurrent instead of consecutive under recently amended 11 Del. C.

§ 3901(d). Effective July 9, 2014, Section 3901(d) was amended to give courts the

discretion to impose concurrent terms of imprisonment for certain crimes. 3 The

Superior Court denied Henry’s request, finding that Section 3901(d) did not exist

at the time of Henry’s sentencing and was not retroactive. Henry did not appeal

the Superior Court’s judgment.


1
  Fountain v. State, --A.3d--, 2016 WL 2927750 (Del. May 16, 2016).
2
  Henry v. State, 2008 WL 623208 (Del. Nov. 20, 2007).
3
  11 Del. C. § 3901(d).


                                             2
         (4)     On June 3, 2015, Henry again moved for the Superior Court to make

his terms of his sentences concurrent under Section 3901(d). Henry argued that

other prisoners had obtained relief under Section 3901(d) and that his request

should be granted because he was working on his G.E.D. and he would be able to

enter a drug treatment program if the length of his sentence was shortened. The

Superior Court denied Henry’s request, finding that the sentence imposed was

reasonable and appropriate. This appeal followed.

         (5)     This Court reviews the Superior Court’s denial of a motion for

correction or reduction of sentence for abuse of discretion, although questions of

law are reviewed de novo.4 A sentence is illegal under Superior Court Criminal

Rule 35(a) if it exceeds the statutory limits, violates double jeopardy, is ambiguous

or internally contradictory, or is not authorized by the judgment of conviction.5

Under Rule 35(b), a motion for reduction of sentence that is not filed within ninety

days of sentencing will only be considered in extraordinary circumstances or under

11 Del. C. § 4217, which permits sentence reduction if the Department of

Correction files an application for good cause shown and certifies that the offender

does not constitute a substantial risk to the community or himself. Rule 35(b) also

provides that the Superior Court will not consider repetitive requests for sentence

modification.

4
    Wallace v. State, 2014 WL 707168, at *1 (Del. Feb. 17, 2014).
5
    Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).


                                                 3
         (6)    Because Henry did not argue that his sentences exceeded the statutory

limits, violated double jeopardy, were ambiguous or internally contradictory, or not

authorized by the judgment of conviction, his motion was subject to the ninety-day

time limit in Rule 35(b). Henry filed his motion more than ninety days after his

sentencing and did not show extraordinary circumstances justifying review of his

sentence or that the Department of Correction filed an application under Section

4217. Section 3901(d) does not apply retroactively to sentences—like Henry’s—

that were imposed before July 9, 2014.6 Henry’s motion was also repetitive under

Rule 35(b). The Superior Court did not err therefore in denying Henry’s motion

for reduction of sentence.

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

and the judgment of the Superior Court is AFFIRMED.

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




6
    Fountain v. State, 2016 WL 2927750, at *4.


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