      IN THE SUPREME COURT OF THE STATE OF DELAWARE

 MARCUS JOHNSON,                       §
                                       §
       Defendant Below-                §   No. 233, 2016
       Appellant,                      §
                                       §
       v.                              §   Court Below—Superior Court
                                       §   of the State of Delaware
 STATE OF DELAWARE,                    §
                                       §   Cr. ID 1305001585
       Plaintiff Below-                §
       Appellee.                       §

                          Submitted: May 24, 2016
                          Decided:   July 21, 2016

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

                                 ORDER

      This 21st day of July 2016, upon consideration of the appellant’s

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

to the Court that:

      (1)    The appellant, Marcus Johnson, filed this appeal from a

Superior Court order denying three motions seeking modification of his

sentence. The State has filed a motion to affirm the judgment below on the

ground that it is manifest on the face of Johnson’s opening brief that his

appeal is without merit. We agree and affirm.

      (2)    Johnson pled guilty in July 2013 to two counts of Possession of

a Controlled Substance (Tier 5 weight).       Upon the State’s motion, the
Superior Court declared Johnson to be a habitual offender. The Superior

Court sentenced Johnson on October 4, 2013 to a total period of seventeen

years at Level V incarceration, to be suspended after serving nine years in

prison for decreasing levels of supervision. Johnson did not file a direct

appeal.        Instead, Johnson file two motions seeking modification of his

sentence in May 2014 and July 2014. The Superior Court denied both

motions in a single order in August 2014.

         (3)     Thereafter, between August 2015 and December 2015, Johnson

filed three more motions seeking modification of his sentence based on

claims that: (i) he was entitled to have his sentences run concurrently as a

result of the General Assembly’s adoption of House Bill 312;1 and (ii) the

State was required to file a substantial assistance motion in his case. The

Superior Court denied Johnson’s motions on April 26, 2016. This appeal

followed.

         (4)     On appeal, Johnson first argues that House Bill 312, which

amended 11 Del. C. § 3901(d) to permit concurrent sentences, applies to his

case. He argues that the Superior Court abused its discretion in refusing to

modify his sentences to allow them to run concurrently and erred in

concluding that the amended law did not apply retroactively.


1
    79 Del. Laws c. 297 (2014).


                                        2
       (5)     Johnson is incorrect. The Court recently held in Fountain v.

State2that the amendment to 11 Del. C. § 3901(d) only applies prospectively

and not retroactively.3 Thus, the Superior Court did not err in refusing to

amend Johnson’s sentences to permit them to run concurrently.

       (6)     Moreover, we find no merit to Johnson’s claim that the

Superior Court erred in failing to hold a hearing on his claim that the State

had breached its agreement to file a substantial assistance motion on his

behalf.4 Under Superior Court Criminal 35(b), a motion for reduction or

modification of sentence must be filed within 90 days of sentencing unless

the defendant can establish extraordinary circumstances.5 Johnson failed to

establish extraordinary circumstances in this case because, as the Superior

Court properly held, he offered nothing to support his claim that the State

had agreed to file a substantial assistance motion on his behalf.

Accordingly, we find no abuse of the Superior Court’s discretion in denying

Johnson’s untimely and repetitive motion for modification of sentence.




2
  __ A.3d __, 2016 WL 2927750 (Del. May 16, 2016).
3
  Id. at *4-5.
4
   Under 11 Del. C. § 4220(a), the State may file a motion to modify a defendant’s
sentence if the defendant has provided substantial assistance in the identification, arrest
or prosecution of any other person for a crime under any state or federal law.
5
  Del. Super. Ct. Crim. R. 35(b) (2016).


                                            3
     NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

                              BY THE COURT:

                              /s/ Collins J. Seitz, Jr.
                                      Justice




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