          IN THE SUPREME COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                             §
                                               §       No. 360, 2014
       Plaintiff Below-                        §
       Appellant,                              §       Court Below: Superior Court
                                               §       of the State of Delaware in and
v.                                             §       for New Castle County
                                               §
DANIEL DIAZ,                                   §       No. 0606013407
                                               §
       Defendant Below-                        §
       Appellee.                               §

                              Submitted: February 18, 2015
                                Decided: April 15, 2015

       Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                         ORDER

       On this 15th Day of April 2015, it appears to the Court that:

       (1) Plaintiff-below/Appellant State of Delaware appeals from a Superior Court

order modifying the violation of probation sentence of Defendant-below/Appellee

Daniel Diaz. The State raises one claim on appeal. The State contends that the

Superior Court erred by failing to follow the plain language of Superior Court

Criminal Rule 35(b),1 which in this case required a showing of extraordinary

circumstances to justify modification of Diaz’s sentence. We agree. We also find

1
  Superior Court Criminal Rule 35(b) provides that the court will consider an application for
reduction of a sentence of imprisonment made more than ninety days after imposition of sentence
only in extraordinary circumstances or pursuant to 11 Del. C. § 4217. Super. Ct. Crim. R. 35(b).

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that Diaz’s acquittal on charges that led to his violation of probation does not, in and

of itself, constitute an extraordinary circumstance. For these reasons, we reverse.

       (2) In December 2006, Diaz pled guilty to two counts of Robbery in the First

Degree and one count of Robbery in the Second Degree.2 The Superior Court

sentenced him in February 2007 to a total period of twelve years at Level V

incarceration to be suspended after serving six years in prison, followed by

decreasing levels of supervision. In April 2013, Diaz was arrested on a new criminal

charge of Drug Dealing. As a result, he was charged with violating his probation for

committing a new criminal offense, for leaving the State without authorization, and

for being in possession of a controlled substance that was not legally prescribed.

       (3) A contested violation of probation (“VOP”) hearing was held on July 24,

2013. The State’s evidence was presented through the testimony of Probation Officer

Armando Gonzalez, Jr. and Detective Jeffrey Gliem of the Delaware State Police.

The State’s evidence established that the Delaware State Police had received

information from a confidential informant (“CI”) that Diaz was selling heroin in the

Newark and New Castle areas. The CI told police that Diaz would re-supply his

drugs by driving to Philadelphia in a silver Ford Taurus with Pennsylvania tags. The


2
  Unless otherwise noted, the facts and procedural history are taken directly from this Court’s
decision in Diaz’s direct appeal of the Superior Court’s order finding him in violation of his
probation. Diaz v. State, 2014 WL 1017480 (Del. Mar. 13, 2014).

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silver Ford previously had been observed by his probation officer parked outside

Diaz’s home.

       (4) As a result of the CI’s information, police made an undercover, controlled

drug purchase from Diaz. They also obtained a warrant to place a GPS tracking

device on the silver Ford. The monitoring device reflected Diaz leaving Delaware on

three occasions. On the third occasion, police stopped his vehicle. After obtaining

a warrant, police searched the car and found over 10,000 bags of heroin hidden in a

secret compartment. At the conclusion of the State’s evidence, Diaz did not contest

that the State had established a basis for the VOP.3 The Superior Court immediately

sentenced Diaz to a total of six years at Level V incarceration, which was all of the

Level V time remaining to be served from his original sentence, followed by a

six-month transition period of probation. On March 13, 2014, we affirmed the

Superior Court’s judgment in Diaz’s direct appeal.

       (5) In January 2014, Diaz was tried and acquitted of all charges stemming from

his April 2013 arrest. On May 28, 2014, more than 10 months after he had been

sentenced for violating his probation, Diaz filed a motion for modification of his VOP

sentence. On June 2, 2014, without affording the State an opportunity to respond to

Diaz’s motion, the Superior Court granted the sentence modification, suspending all

3
  Defense counsel stated to the Superior Court that “[w]e’re not going to contest that there was a
basis for the violation.” Appellant’s Op. Br. App. at A13.

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of the Level 5 time previously imposed for Level 4 Home Confinement followed by

Level 3 probation.

       (6) On June 27, 2014, the State filed a motion to vacate the Superior Court’s

order modifying Diaz’s VOP sentence.4 The State’s time to appeal from the Superior

Court’s order modifying Diaz’s sentence expired on July 1, 2014. As of June 30,

2014, the Superior Court had not ruled on the State’s motion to vacate. The State

filed its notice of appeal from the trial court’s order granting Diaz’s motion for

sentence reduction on July 1, 2014.

       (7) We review a trial court’s grant of a motion filed under Superior Court

Criminal Rule 35(b) for abuse of discretion.5 Rule 35(b) requires that an application

for modification of a sentence of imprisonment be filed within ninety days of the

sentence’s imposition. “When a Rule 35(b) motion is filed more than ninety days

after the sentence is imposed, the Superior Court will consider a sentence reduction

or modification ‘only in extraordinary circumstances’ or under title 11, section 4217

of the Delaware Code.”6

       (8) The State contends that the trial court abused its discretion by failing to
4
  At oral argument before this Court, the State indicated that its motion to vacate had been
abandoned, and that the only judgment on appeal is the Superior Court’s original order granting
Diaz’s motion for sentence modification. Oral Argument at 04:40-05:16, State v. Diaz, No. 360,
2014 (Feb. 18, 2014).
5
  State v. Lewis, 797 A.2d 1198, 1202 (Del. 2002).
6
  Valentine v. State, 2014 WL 7894374, at *1 (Del. Dec. 31, 2014) (citing Del. Super. Ct. Crim. R.
35(b)).

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perform a proper Rule 35 analysis before modifying Diaz’s sentence, and that Diaz’s

acquittal alone does not equate to extraordinary circumstances warranting

consideration of his untimely application for sentence reduction. Diaz responds that

his acquittal on the underlying drug charges, which were the primary basis for his

violation of probation, established extraordinary circumstances under Rule 35, and

thus the trial court properly considered and granted his motion.

        (9) In order to uphold the finality of judgments, a heavy burden is placed on

the defendant to prove extraordinary circumstances when a Rule 35 motion is filed

outside of ninety days of the imposition of a sentence. Although not defined by

statute, Black’s Law Dictionary defines “extraordinary circumstances” as “[a] highly

unusual set of facts that are not commonly associated with a particular thing or

event.”7 In State v. Lewis, former-Chief Justice Steele aptly described “extraordinary

circumstances” in the context of a Rule 35 motion as those which “specifically justify

the delay;” are “entirely beyond a petitioner’s control;” and “have prevented the

applicant from seeking the remedy on a timely basis.”8 Our precedent supports this

definition, and illustrates the high burden a defendant must satisfy in order for an

untimely Rule 35 motion to be considered by the court.9

7
  Black’s Law Dictionary (10th ed. 2014).
8
  Lewis, 797 A.2d at 1203, 1205 (Steele, J., dissenting).
9
  See Morrison v. State, 2004 WL 716773, at *1 (Del. Mar. 24, 2004) (holding that a defendant’s
claim of “extraordinary rehabilitation,” without a recommendation from the Department of

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        (10) In this case, we find that the trial court abused its discretion by modifying

Diaz’s sentence without first performing a proper Rule 35 analysis. In its order

modifying Diaz’s sentence, the Superior Court stated, in pertinent part: “This

sentence is modified because it was a violation of probation sentence that was

primarily based on a new arrest. The new arrest case was tried on January 28, 2014

and a jury found Defendant not guilty on all charges.”10 The Superior Court erred by

summarily granting Diaz’s motion without addressing the extraordinary

circumstances requirement of Rule 35.

        (11) Moreover, Diaz’s acquittal on the underlying drug charges is not, in and

of itself, an extraordinary circumstance under Rule 35. There are well established,

significant differences between a VOP hearing and a criminal trial. A VOP hearing

is not a criminal prosecution.11 Rights afforded to the accused in a criminal

prosecution, such as the presumption of innocence and the Sixth Amendment right

Correction, did not satisfy the requirement of “exceptional circumstances.”); Jones v. State, 2003
WL 356788, at *1 (Del. Feb. 14, 2003) (holding that financial and familial hardships, without more,
did not constitute extraordinary circumstances); Boyer v. State, 2003 WL 21810824, at *5 (Del. Aug.
4, 2003) (holding that the trial court acted within its discretion when it found that defendant’s health
issues, familial hardships, rehabilitation efforts, and unique incarceration circumstances did not
amount to extraordinary circumstances); Johnson v. State, 1999 WL 652049, at *1 (Del. Aug. 16,
1999) (holding that the defendant’s situation did not rise to extraordinary circumstances despite
being disabled, completing rehabilitation programs, having two young children in other states, and
being a former police officer); Duffy v. State, 1998 WL 985332, at *1 (Del. Nov. 12, 1998) (holding
that a failure of communication between the defendant and his attorney did not constitute
extraordinary circumstances).
10
   Appellant’s Op. Br. App., Ex. C at 2.
11
   Jenkins v. State, 2004 WL 2743556, at *2 (Del. Nov. 23, 2004).

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to confront witnesses, do not apply to a VOP hearing.12 The procedural rights that

pertain to a VOP proceeding arise from the Due Process Clause.13 “In a VOP hearing,

unlike a criminal trial, the State is only required to prove by a preponderance of the

evidence that the defendant violated the terms of his probation. A preponderance of

evidence means ‘some competent evidence’ to ‘reasonably satisfy the judge that the

conduct of the probationer has not been as good as required by the conditions of

probation.’”14 A defendant can be properly adjudicated to have violated his probation

by committing a new crime, even if the State concedes that it lacks sufficient

evidence to prosecute the probationer and establish beyond a reasonable doubt that

he has committed the crime.15 “Furthermore, ‘the rules of evidence applicable to

criminal trials are relaxed’ in VOP proceedings, and hearsay evidence is

admissible.”16 Because of these differences between a VOP proceeding and a

criminal trial, a finding that a defendant has violated his probation based on new

charges is not legally inconsistent with a subsequent acquittal on those charges at a

criminal trial.

       (12) Because Diaz’s motion was filed beyond the ninety-day time limit of Rule


12
   Id.
13
    Perry v. State, 741 A.2d 359, 363 (Del. 1999).
14
   Diaz, 2014 WL 1017480, at * 2 (quoting Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006)).
15
   Kurzmann, 903 A.2d at 716.
16
    Id. (quoting Collins v. State, 897 A.2d 159, 160 (Del. 2006)).

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35(b), he was required to establish extraordinary circumstances that would justify

consideration of his untimely motion. Diaz failed to establish such circumstances in

the proceedings below, and has not done so here. Accordingly, we find that the

Superior Court abused its discretion by granting Diaz’s Rule 35(b) motion.17

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

Court is REVERSED.

                                                     BY THE COURT:

                                                     /s/ James T. Vaughn Jr.
                                                     Justice




17
  The conclusion we reach in this case is not to be construed to mean that an acquittal can never be
an extraordinary circumstance. That is a matter which we need not consider in this case and upon
which we express no opinion.

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