            IN THE SUPREME COURT OF THE STATE OF DELAWARE

 JOHN J. SMITH,                          §
                                         §   No. 300, 2017
       Defendant Below-                  §
       Appellant,                        §
                                         §   Court Below—Superior Court
       v.                                §   of the State of Delaware,
                                         §
 STATE OF DELAWARE,                      §   Cr. ID. 1309013302 (N)
                                         §
       Plaintiff Below-                  §
       Appellee.

                          Submitted: November 17, 2017
                           Decided: January 22, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                     ORDER

      This 22nd day of January 2018, upon consideration of the parties’ briefs and

the record below, it appears to the Court that:

      (1)     The appellant, John Smith, filed this appeal from the Superior Court’s

order dated June 28, 2017, denying his motion for modification of sentence and

“petition for rule to show cause.”           We find no merit to Smith’s appeal.

Accordingly, we affirm the Superior Court’s judgment.

      (2)     The record reflects that Smith was indicted in January 2014 on

multiple criminal charges including Aggravated Menacing and Possession of a

Firearm During the Commission of a Felony. Smith was on probation at the time

of his indictment on the new charges. As a result, Smith also was charged with a
violation of probation (“VOP”) in Cr. ID 0908015857. On July 7, 2014, Smith

pled guilty to Aggravated Menacing and Possession of a Firearm During the

Commission of a Felony (“PFDCF”) in Cr. ID 1309013302. The Superior Court

ordered a presentence investigation and deferred sentencing.

       (3)     Two days later, on July 9, 2014, the Superior Court found Smith

guilty of his fourth VOP in Cr. ID 0908015857. The Superior Court sentenced him

on the VOP, effective February 1, 2014, to a total period of five years at Level V

incarceration, to be suspended after serving three years in prison for decreasing

levels of supervision (“the VOP Sentence”). The VOP Sentence order noted that

the effective date of the sentence took into account the time Smith spent in prison

awaiting resolution of his new charges.

       (4)     On February 13, 2015, the Superior Court sentenced Smith on his new

charges (“the 2015 Sentence”).            On the firearm offense, the Superior Court

sentenced Smith, effective February 7, 2014, to six years at Level V incarceration. 1

On the aggravated menacing offense, the Superior Court sentenced Smith to five

years at Level V, to be suspended immediately for decreasing levels of

supervision.

       (5)     Smith did not appeal. Instead, on February 24, 2015, Smith filed a

motion for modification of sentence, requesting the Superior Court to run the VOP

1
  Because of Smith’s prior criminal history, the Superior Court was required to impose at least a
five-year minimum mandatory sentence on his latest firearm conviction.


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Sentence concurrently with the 2015 Sentence. The Superior Court denied that

motion. Smith did not appeal. On May 12, 2015, Smith filed another motion for

modification of sentence, requesting the Superior Court to reduce the 2015

Sentence from six years in prison to five years in prison and to run his 2015

Sentence concurrently with his VOP Sentence. The Superior Court denied that

motion. Smith did not appeal. On September 4, 2015, Smith filed a motion for

correction of sentence, addressed to both his VOP Sentence and his 2015 Sentence.

He requested the Superior Court to correct his sentence to allow him to serve his

2015 Sentence before his VOP Sentence. The Superior Court denied that motion

as moot. Smith did not appeal.

      (6)    On April 7, 2017, Smith filed another motion for modification of

sentence, asking the Superior Court to reduce the Level V portion of his 2015

Sentence and to order that the Level IV portion of his 2015 Sentence be completed

on Home Confinement. On May 26, 2017, Smith also filed a motion for a rule to

show cause, requesting that the Department of Correction (“DOC”) be held in

contempt for failing to give him credit against his 2015 Sentence for all of the time

he was held in prison since February 7, 2014, which was the effective date of his

2015 Sentence.

      (7)    On June 28, 2017, the Superior Court denied both of Smith’s motions.

As to his request for a modification of his 2015 Sentence, the Superior Court noted



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that his motion was barred under Superior Court Criminal Rule 35(b) because it

was both untimely and repetitive. As to his motion for a rule to show cause, the

Superior Court misconstrued Smith’s argument as an inappropriate challenge to the

DOC’s discretionary decision regarding Smith’s program placement and denied it

accordingly. Smith now appeals.

       (8)    The gist of Smith’s argument on appeal is that the DOC has wrongly

credited the year that he spent in prison between February 2014, when he was first

picked up by authorities, and February 2015, when he was sentenced on his 2015

Sentence, against his three year VOP Sentence instead of against the mandatory

prison term of his 2015 Sentence. According to Smith, the DOC’s failure to credit

his time served against the 2015 Sentence, which contains a minimum mandatory

term of incarceration, means that he will have to wait an extra year before he can

request the DOC to file a sentence modification motion on his behalf under 11 Del.

C. § 4217(b).2

       (9)    Assuming without deciding that Smith’s motions in the Superior

Court were procedurally proper, 3 we conclude that Smith is not entitled to the relief

he seeks. As to Smith’s motion for modification of sentence, the Superior Court


2
  11 Del. C. § 4217(b) allows the DOC, in its discretion, to file a motion for modification
sentence on behalf of an inmate if the DOC can show good cause and certifies that release of the
inmate shall not constitute a “substantial risk” to the community or the inmate.
3
  As the State correctly points out, the relief Smith seeks against the DOC should have been
pursued through a writ of mandamus under 10 Del. C. § 564. The Superior Court Criminal Rules
do not provide for a “rule to show cause.”


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did not err in finding that his motion was both untimely and repetitive. 4 As to his

motion for a rule to show cause, Smith can establish no prejudice from the

Superior Court’s denial of relief.

       (10) The record reflects that Smith was incarcerated on his latest criminal

charges and the resulting VOP in February 2014. 5 He pled guilty on the new

charges on July 7, 2014, but his sentencing was deferred until the completion of a

presentence investigation.6 Two days later, Smith was found guilty of the VOP

and was immediately sentenced. The VOP Sentence gave Smith credit for all time

served since February 1, 2014. The VOP sentence was entirely proper.

       (11) When the Superior Court imposed the 2015 Sentence, the judge made

the effective date of the sentence February 7, 2014. Notwithstanding the effective

date of the 2015 Sentence, the DOC legally could not give Smith double credit for

the time he had served before imposition of the 2015 Sentence because, under 11

Del. C. § 1447A(e), a sentence for PFDCF may not run concurrently with any


4
  See Super. Ct. Crim. R. 35(b) (providing that a motion requesting a reduction of sentence must
be filed within 90 days of sentencing and further providing that the Superior Court “will not
consider repetitive requests.”).
5
  The exact date Smith was incarcerated is unclear to this Court. The VOP sentence was made
effective February 1, 2014. The 2015 Sentence was made effective February 7, 2014. The State
contends in its answering brief that the DOC’s records suggest that Smith was not in DOC
custody until February 19, 2014. The transcript of the 2015 Sentencing hearing indicates,
however, that Smith may have been picked up by Pennsylvania authorities in Chester on
February 7, 2014. Given the uncertainty, it appears the Superior Court erred on the side of
caution by making the effective date of the VOP Sentence February 1, 2014 and inadvertently
giving Smith more credit time than he was due.
6
  The record reflects that, on June 30, 2014, Smith rejected a plea offer from the State on the new
charges that would have resulted in less jail time and immediate sentencing.


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other sentence. As such, the DOC resolved the conflict in the effective dates of the

sentences by following the express language of 11 Del. C. § 4216(b), which

“requires the interruption of a non-mandatory sentence for service of a

subsequently imposed mandatory sentence, with resumption of the non-mandatory

sentence prior to release.”7 Smith’s Offender Status Sheet correctly reflects that

Smith was serving his non-mandatory VOP sentence in Cr. ID No. 090815857

between February 1, 2014 and February 13, 2015, when he began serving his

mandatory sentence for PFDCF in Cr. ID No. 1309013302. The Superior Court

did not err in denying Smith’s motion for a rule to show cause.

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

Court is AFFIRMED.

                                             BY THE COURT:

                                             /s/ James T. Vaughn, Jr.
                                                    Justice




7
  Watson v. Burgan, 610 A.2d 1364, 1369 (Del. 1992) (emphasis added). See also 11 Del. C. §
4216(b) (“Where an inmate is serving a ‘nonmandatory’ Level V (incarceration) sentence and is
subsequently sentenced to a mandatory term of incarceration, serving of the earlier sentence shall
be suspended and the inmate shall serve the new mandatory Level V sentence until it is
completed and then resume serving the earlier sentence.”).


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