IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHESTER L. SMITH, §
§
Defendant Below, § No. 168, 2016
Appellant, §
§ Court Below--Superior Court
v. § of the State of Delaware,
§
STATE OF DELAWARE, § Cr. ID No. 0804009871
§
Plaintiff Below, §
Appellee. §

Submitted: April 28, 2016
Decided: June 7, 2016

Before HOLLAND, VAUGHN, and SEITZ, Justices.
0 R D E R

This 7"‘ day of June 2016, upon consideration of the appellant’s opening
brief, the appellee’s motion to at`firm, and the record below, it appears to the Court
that:

(1) The appellant, Chester L. Smith, filed this appeal from a Superior
Court order denying his motion for review of sentence. The State of DeIaware has
filed a motion to affm'n the judgment below on the ground that it is manifest on the
face of Smith’s opening brief that his appeal is without merit. We agree and
affirm.

(2) The record reflects that, on November 18, 2008, Smith pled guilty to

Possession of a Deadly Weapon by a Person Prohibited ("PDWBPP"), Possession

of a Firearm During the Commission of a Felony ("PFDCF"), and Trafficking in
Cocaine. On April 3, 2009 the Superior Court granted the State’s motion to have
Smith declared a habitual offender under ll Del. C. § 42l4(a) and sentenced Smith
as follows: (i) for PDWBPP, as a habitual offender under Section 42l4(a), eight
years of Level V incarceration; (ii) for PFDCF, three years of Level V
incarceration; and (iii) for Trafficking in Cocaine, five years of Level V
incarceration, suspended after two years for decreasing levels of supervision.
Smith did not appeal the Superior Court’sjudgment.

(3) On February 8, 2016, Smith filed a motion for review of his sentence.
Smith contended that he had completed rehabilitation programs and worked while
in prison, the Department of Correction ("DOC") was not calculating his good time
credits correctly, and the Superior Court should make his sentences concurrent
under 11 Del. C. § 390l(d), which was amended to give judges the discretion to
impose concurrent, rather than consecutive, terms of imprisonment for certain
crimes. The Superior Court denied the motion, finding that it was filed more than
ninety days after sentencing, Smith failed to show extraordinary circumstances
justifying review of his motion under Superior Court Criminal Rule 35(b), and the
sentence was appropriate for all of the reasons stated at sentencing, This appeal

followed.

we

(4) We review the Superior Court’s denial of a motion for reduction of

sentence for abuse of discretion.'

To the extent the claim involves a question of
law, we review the claim de novo.z Superior Court Criminal Rule 35(b) provides
that a motion for reduction of sentence that is not filed within ninety days of
sentencing will only be considered in extraordinary circumstances or pursuant to
ll Del. C. § 4217, which permits sentence reduction if the DOC files an
application for good cause shown and certifies that the offender does not constitute
a substantial risk to the community or himself.

(5) In his opening brief, Smith argues that the Superior Court erred
because: (i) the DOC’s failure to calculate his statutory good time credit and
earned credits correctly under ll Del. C. § 4381 constituted extraordinary
circumstances to justify review of his sentence; and (ii) it failed to consider his
claim that he was entitled to relief under ll Del. C. § 390l(d). These claims are
without merit. First, a petition for a writ of mandamus, not a motion for sentence

review, was the proper procedural vehicle for Smith’s claim that the DOC is

calculating his good time and earned credits incorrectly.3

l State v. Lewis, 797 A.2d 1198, 1202 (Del. 2014).

2 Weber v. State, 2015 WL 2329160, at *l (Del. May 12, 2015).

3 See, e.g., Hawkes v. State, 2009 WL 308'7271, at *l (Del. Sept. 28, 2009) (affirming denial of
motion to compel the DOC to recalculate defendant's good time credit because writ of
mandamus was proper vehicle for cIaim); Orti: v. State, 2007 WL 1885122, at *1»2 (Del. July 2,
2007) (affirming denial of motion to modify sentence based on the DOC’s failure to apply good
time credits because defendant should have filed a petition for writ of mandamus).

3

(6) Second, Smith is not entitled to concurrent, rather than consecutive,
sentences under Section 390l(d). Section 390l(d) does not apply retroactively to
sentences that were imposed before July 9, 2014.4 Smith’s sentence was imposed
on April 3, 2009. The Superior Court did not err in denying Smith’s motion for

sentence review.
NOW, TI-[EREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRl\/IED.

BY TH]E COURT:

 

4 Fountain v. Srale, --A.3d--, 2016 WL 2927750, at *4-5 (Del. May 16, 2016).
4

