           IN THE SUPREME COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                             §
                                               §     No. 249, 2016
             Plaintiff Below,                  §
             Appellant,                        §     Court Below:
                                               §
      v.                                       §     Superior Court of the
                                               §     State of Delaware
CATHERINE W. CULP,                             §
                                               §     Cr. I.D. No. 9807019438
             Defendant Below,                  §
             Appellee.                         §

                          Submitted:    November 16, 2016
                          Decided:      December 8, 2016

Before STRINE, Chief Justice, VALIHURA and SEITZ, Justices.

Upon appeal from the Superior Court. REVERSED.

Sean P. Lugg, Esquire (argued), Delaware Department of Justice, Wilmington, Delaware
for Appellant.

Bernard J. O’Donnell, Esquire and William T. Deely, Esquire (argued), Office of Public
Defender, Wilmington, Delaware for Appellee.

VALIHURA, Justice:
       Pending before this Court is the State’s appeal from the Superior Court’s April 18,

2016 Opinion and Order (the “Order”)1 granting Catherine Culp’s (“Culp”) second pro se

motion for sentence modification,2 which the Superior Court reviewed as a Motion for

Review of Sentence (the “Motion”).3 The Superior Court held that Culp’s rehabilitative

efforts demonstrated “beyond cavil extraordinary circumstances” justifying reduction of

her sentence pursuant to Superior Court Criminal Rule 35(b).4 On appeal, the State

argues that the Superior Court abused its discretion in granting the Motion, which the

State contends was barred as repetitive and untimely.

       For the reasons set forth below, we REVERSE the Superior Court’s Order

granting Culp’s Motion.

         I.     RELEVANT FACTS AND PROCEDURAL BACKGROUND
       On July 28, 1999, Culp’s boyfriend, Lee Hicks, died after being shot in the back.

Culp was arrested and charged with Hicks’s murder. On December 8, 1999, after a two-

week trial, a Superior Court jury found Culp guilty of murder in the first degree and

possession of a firearm during the commission of a felony (“PFDCF”). On December 17,

1999, the Superior Court imposed a life sentence for the first-degree murder charge and

five years of incarceration for PFDCF. On appeal, this Court determined that the trial

court had improperly excluded Culp’s statements made to a 911 dispatcher and reversed




1
  State v. Culp, 140 A.3d 435 (Del. Super. 2016) [hereinafter “Culp III, 140 A.3d at __”].
2
  Mot. for Modification / or Consideration for 4217, State v. Culp, No. 9807019438 (Del. Super.
Oct. 5, 2015) [hereinafter “Mot. at B__”], available at B1-5.
3
  See Culp III, 140 A.3d at 436.
4
  Id. at 438.
                                              2
the judgment, remanding the case to the trial court.5

       On July 30, 2001, a Superior Court jury, on retrial, acquitted Culp of Murder in

the First Degree, but found her guilty of the lesser-included offense of Murder in the

Second Degree and PFDCF. On August 1, 2001, the Superior Court sentenced Culp to

twenty years of imprisonment at Level V for the murder, and five years’ imprisonment at

Level V for the firearm offense. On direct appeal, this Court affirmed Culp’s convictions

and sentence on January 27, 2003.6

       On April 22, 2003, Culp filed her first pro se motion for modification of sentence,

which was denied on May 29, 2003. On March 11, 2009, Culp filed a pro se motion for

postconviction relief, which the Superior Court denied on July 13, 2009. On October 5,

2015, Culp filed the Motion, claiming that she participated in every program offered to

her and was thereby rehabilitated. The programs she participated in include: achieving an

associate’s degree, teaching courses to other inmates, tutoring, and completing courses in

computing, Spanish, women’s health, public speaking, culinary arts, dancing, and floral

design.7   In her Motion, Culp noted that no additional programs were available to

stimulate her mind and that she was remorseful for her actions.

       On April 18, 2016, the Superior Court granted Culp’s Motion, finding that Culp

had “demonstrated beyond cavil extraordinary circumstances, in the clearest manner that




5
  Culp v. State, 766 A.2d 486, 491 (Del. 2001) [hereinafter “Culp I, 766 A.2d at __”].
6
  Culp v. State, 2003 WL 193536, at *3 (Del. Jan. 27, 2003) [hereinafter “Culp II, 2003 WL
193536, at *__”].
7
  Culp III, 140 A.3d at 438.
                                             3
Rule 35(b) could conceive, for a reduction of her sentence.”8 The Superior Court found

that the “effect of Culp’s tremendously ambitious efforts is that she has not only exposed

herself to, but excelled in the acquisition of, skills that will make her a particular benefit

to the community upon her reintegration.”9 At the time of her Motion, Culp had served

approximately 17 years of her 25-year sentence.         The Superior Court modified her

sentence to 20 years at Level V for murder, suspended after 12, and 8 years for PFDCF at

Level V, suspended after 5, followed by 2 years at Level III supervision.

       On appeal, the State contends that the Superior Court abused its discretion by

considering Culp’s repetitive and untimely motion for reduction of sentence, contrary to

the plain language of Rule 35 and case law interpreting the Rule. The State argues that

program participation does not constitute “extraordinary circumstances” that would

excuse the untimely Motion.        Culp responds that a prior Rule 35 motion does not

necessarily bar subsequent motions and that her rehabilitation constitutes extraordinary

circumstances sufficient to overcome the timeliness bar in Rule 35(b).

                                     II.     ANALYSIS
       This Court reviews a Superior Court’s grant of a motion for modification of

sentence for abuse of discretion.10 “An abuse of discretion occurs when a court has

exceeded the bounds of reason in view of the circumstances or so ignored recognized




8
  Id.
9
  Id. at 437.
10
   State v. Lewis, 797 A.2d 1198, 1202 (Del. 2002).
                                               4
rules of law or practice to produce injustice.”11 “The applicability or construction of a

statute or court rule is a question of law and is subject to de novo review.”12

       Superior Court Criminal Rule 35(b) permits the Superior Court to “reduce a

sentence of imprisonment on a motion made within 90 days after the sentence is

imposed.”13 The Superior Court “will not consider repetitive requests for reduction of

sentence.”14 A motion is “repetitive” as that term is used in Rule 35(b) when it is

preceded by an earlier Rule 35(b) motion, even if the subsequent motion raises new

arguments.15 Rule 35(b) does not set forth any exception to the repetitive motion bar.

       Rule 35(b) provides that “[t]he court will consider an application made more than

90 days after the imposition of sentence only in extraordinary circumstances or pursuant

to 11 Del. C. § 4217.”16 Thus, two exceptions permit the Superior Court to consider

motions filed more than 90 days after sentencing. First, the Superior Court may consider

an untimely motion if “extraordinary circumstances” exist.17 “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 imposition of a

sentence.”18 Recently, this Court stated in Diaz that extraordinary circumstances are

circumstances that “‘specifically justify the delay;’ are ‘entirely beyond a petitioner’s
11
   Harper v. State, 970 A.2d 199, 201 (Del. 2009) (quoting Culp I, 766 A.2d at 489) (internal
quotation marks omitted).
12
   Lewis, 797 A.2d at 1199 (citation omitted).
13
   Super. Ct. Crim. R. 35(b).
14
   Id.
15
    See, e.g., Valentine v. State, 2014 WL 7894374, at *2 (Del. Dec. 31, 2014) (describing a
second Rule 35(b) motion, which raised a new argument, as “untimely and repetitive”).
16
   Super. Ct. Crim. R. 35(b).
17
   Id.
18
   State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015).
                                              5
control;’ and ‘have prevented the applicant from seeking the remedy on a timely

basis.’”19

       Second, the Superior Court can modify a sentence more than 90 days after

sentencing pursuant to 11 Del. C. § 4217.20 Section 4217 permits the Superior Court to

modify a sentence solely on the basis of an application filed by the Department of

Correction (“DOC”) “for good cause shown which certifies that the release of the

defendant shall not constitute a substantial risk to the community or the defendant’s own

self.”21 Good cause includes, but is not limited to, “rehabilitation of the offender, serious

medical illness or infirmity of the offender and prison overcrowding.”22 For purposes of

Section 4217, “rehabilitation” is defined as “the process of restoring an individual to a

useful and constructive place in society especially through some form of vocational,

correctional, or therapeutic retraining.”23 Such applications by the DOC “shall be filed

with the Board of Parole.”24 Because the DOC did not file such an application here,

Section 4217 cannot justify the Superior Court’s modification of Culp’s sentence.

       We conclude that the Superior Court abused its discretion in considering Culp’s

Motion, which was both repetitive and untimely. The Motion was repetitive because it

was Culp’s second request for modification of her sentence. Ignoring Rule 35(b)’s
19
   Id. (quoting Lewis, 797 A.2d at 1203-05 (Steele, J., dissenting)).
20
   Super. Ct. Crim. R. 35(b).
21
   11 Del. C. 4217(b).
22
   11 Del. C. 4217(c).
23
   11 Del. C. 4217(h).
24
    11 Del. C. 4217(d)(1). Section 4217(d) sets forth procedures regarding such applications
which may include, in appropriate cases, a hearing held by the Board of Parole, after written
notice of such hearing to the Attorney General’s office. “Only in those cases where the Board of
Parole by a majority vote recommends a modification of the sentence shall the application be
submitted to the [Superior] Court for consideration.” 11 Del. C. 4217(d)(4).
                                               6
command that the court “not consider repetitive requests for reduction of sentence” was

an abuse of discretion.

       Further, Culp’s Motion was also time barred. As the Superior Court recognized,

Culp filed the Motion more than 90 days after the imposition of her sentence. 25 The

Superior Court found that Culp’s rehabilitation constituted “extraordinary circumstances”

that justified review of the untimely Motion.            However, this Court has held that

“participation in educational and rehabilitative programs, while commendable, does not,

in and of itself, constitute ‘extraordinary circumstances’ for purposes of Rule 35(b).”26 It

appears that the Superior Court read our statement in Allen v. State27—that “Allen’s

prison record is not sufficient to establish ‘extraordinary circumstances’”28—to “not

preclude” the possibility that a prison record might constitute extraordinary

circumstances.29 But, the Superior Court’s reading of Allen is contrary to established

precedent, as well as our recent decision in Diaz.30



25
    See Mot. at B2.
26
   DeShields v. State, 2012 WL 1072298, at *1 (Del. Mar. 30, 2012) (citing Morgan v. State,
2009 WL 1279107, at *1 (Del. May 11, 2009)); see also Callahan v. State, 2016 WL 4437955, at
*1 (Del. Aug. 22, 2016) (same); Triplett v. State, 2008 WL 802284, at *1 (Del. Mar. 27, 2008)
(“While participation in rehabilitative programs is commendable, it is well-settled that such
participation, in and of itself, is insufficient to merit substantive review of an untimely motion
for sentence reduction.” (citation omitted)).
27
   2007 WL 1519030 (Del. May 25, 2007).
28
    Id. at *1 (stating that a defendant’s “prison record [was] not sufficient to establish
‘extraordinary circumstances’ under Superior Court Criminal Rule 35(b) and thus excuse [his]
failure to comply with the 90-day limitations period of Rule 35(b)” (footnotes omitted)).
29
   Culp III, 140 A.3d at 437 (“The Court certainly did not preclude a prison record’s establishing
extraordinary circumstances. The fair reading is quite to the contrary. Allen’s record was
(probably woefully) not enough, but the process and the possibility exist.”).
30
   See Diaz, 2015 WL 1741768, at *2 (describing “extraordinary circumstances” as “those which
‘specifically justify the delay;’ are ‘entirely beyond a petitioner’s control;’ and ‘have prevented
                                                7
       The Superior Court justified its holding, in part, by its observation that

rehabilitation is at least one objective underlying Delaware’s penal system. 31 Although

the Superior Court may be correct that rehabilitation is a goal animating the programs

offered to inmates in Delaware’s correctional institutions, Rule 35(b) is not the proper

vehicle for seeking modification based on rehabilitation. The plain language of Rule

35(b) states that the rule should be construed in conjunction with 11 Del. C. § 4217,

which allows for a modification of a sentence only upon application by the DOC for

“good cause” shown. “Good Cause” under Section 4217 expressly includes, among other

things, “rehabilitation of the offender.” An application made by the DOC pursuant to

Section 4217 must also certify that the release of the defendant shall not constitute a

substantial risk to the community or to the defendant’s own self. Thus, Section 4217 is

the appropriate mechanism through which a defendant may pursue a sentence

modification based upon rehabilitation.

       Employing Rule 35(b) as a mechanism for reducing sentences based upon an

inmate’s rehabilitative efforts would undermine Section 4217 and the important role it

assigns to the DOC and the Board of Parole in seeking assurances of community safety

and public welfare in the evaluation of claims of successful rehabilitation. Further, to

allow an untimely, repetitive Rule 35(b) motion based upon the “extraordinary



the applicant from seeking the remedy on a timely basis’” (quoting Lewis, 797 A.2d at 1203-05
(Steele, J., dissenting))).
31
   Culp III, 140 A.3d at 437 (“If the singular purpose of a sentence were to punish, perhaps no
legitimate discussion would exist. Noting that the place of Culp’s incarceration is Baylor
Women’s Correctional Institution, and that Rule 35(b) exists at all, the inevitable conclusion is
that rehabilitation is at least one aspect of the Delaware penal system.” (emphasis in original)).
                                                8
circumstances” language of that rule would end-run Rule 35(b)’s procedural bars and risk

overwhelming the courts and undercutting the finality of sentences. The notion that

successful rehabilitation constitutes “extraordinary circumstances” justifying a filing after

90 days is also undercut by Rule 35(b)’s reference to Section 4217. Precisely because the

Rule refers to a statute contemplating a vehicle for rehabilitated inmates to obtain an

early release makes untenable the argument that successful rehabilitation constitutes an

extraordinary circumstance. Rather, it shows that successful rehabilitation was a non-

extraordinary circumstance that the drafters of Rule 35(b) well understood.

       Finally, Article VII of the Delaware Constitution of 1897 vests the Governor, upon

recommendation of the Board of Pardons, with sole power to grant reprieves,

commutations of sentence, and pardons.32 The Board, comprised of the Chancellor,

Lieutenant-Governor, Secretary of State, State Treasurer, and Auditor of Accounts,

“recommends to the Governor whether he should pardon the applicant unconditionally,

conditionally, or not at all.”33 Applicants must establish that they no longer threaten the

public. The Board must hold “an open hearing at which any victim of the crime(s) for

which the petitioner seeks a pardon has the opportunity to testify.”34 This executive

clemency process is a second vehicle through which a defendant may pursue sentence

modification based on extraordinary rehabilitative efforts.35 Thus, based on our


32
   Del. Const. art. VII, § 1; see also Lewis, 797 A.2d at 1205 (Steele, J., dissenting).
33
   Heath v. State, 983 A.2d 77, 80 (Del. 2009).
34
   Id.
35
   We note that Culp pursued commutation of her sentence from the Board of Pardons but was
denied. See Transcript of Review of Sentence at 7:17-19, State v. Culp, No. 9807019438 (Del.
Super. Apr. 14, 2016) (“It’s my understanding that at the Board of Pardons hearing that was held
                                               9
construction of the relevant statute and rules, we conclude that, after 90 days, a plea for

leniency based upon rehabilitative efforts must proceed through one of these two

routes—either section 4217 or through the Board of Pardons process.

                                      III.    CONCLUSION
        Because the Superior Court’s modification of Culp’s sentence ignored the plain

language of Rule 35(b) and established precedent, we conclude that the Superior Court

abused its discretion. As such, we REVERSE the Superior Court’s April 18, 2016 Order.




the attorney that was representing her at the time, they attempted to relitigate the trial . . . .”); see
also Oral Argument at 18:24, 20:30, State v. Culp, No. 249, 2016 (Del. Nov. 16, 2016),
https://livestream.com/accounts/5969852/events/6615658/videos/142038302/player.
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