         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 JAMES RUNYON,                            §
                                          §   No. 290, 2019
       Defendant Below–                   §
       Appellant,                         §   Court Below–Superior Court
                                          §   of the State of Delaware
       v.                                 §
                                          §   Cr. ID. No. 1712008549 (N)
 STATE OF DELAWARE,                       §
                                          §
       Plaintiff Below–                   §
       Appellee.                          §

                              Submitted: July 24, 2019
                             Decided: October 10, 2019

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                      ORDER

      After careful consideration of the appellant’s opening brief, the State’s motion

to affirm, and the record on appeal, it appears to the Court that:

      (1)    The appellant, James Runyon, appeals the Superior Court’s June 12,

2019 order denying his motion for sentence modification filed under Superior Court

Criminal Rule 35(b) (“Rule 35(b)”). The State has filed a motion to affirm the

judgment below on the ground that it is manifest on the face of Runyon’s opening

brief that his appeal is without merit. We agree and affirm.

      (2)    The record reflects that Runyon pleaded guilty in August of 2018 to

drug dealing a tier 2 quantity of heroin. The Superior Court granted the State’s

motion to declare Runyon an habitual offender and immediately sentenced Runyon
to fifteen years of Level V incarceration, suspended after two years and the

successful completion of the Key Program for one year at Level IV, suspended after

the successful completion of the Level IV Crest Program, for eighteen months of

Level III Crest aftercare. Runyon did not appeal.

      (3)    On March 25, 2019, Runyon filed a motion for modification of

sentence. In his motion, Runyon asked the court to modify the Level IV Crest

Program portion of his sentence to Level III intensive outpatient treatment. In

support of his motion, Runyon asserted he suffers from physical and mental

disabilities that have made it difficult for him to complete the Key Program and that

will make it even more challenging for him to complete the Crest Program. The

Superior Court denied Runyon’s motion, finding that the motion was untimely; the

sentence imposed remained appropriate for all the reasons stated at sentencing; and

no additional information had been provided to the court that would warrant a

reduction or modification of Runyon’s sentence. This appeal followed.

      (4)    In his opening brief, Runyon argues that the Superior Court erred in

denying his motion for sentence modification as untimely. Runyon contends that

his motion only sought a modification of his Level IV partial confinement and that

Rule 35(b) provides that the Superior Court may modify or reduce the “term or




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conditions of partial confinement or probation[] at any time.”1

       (5)    Runyon is correct that a motion seeking modification of the terms of

partial confinement is not subject to the 90 day limitation period of Rule 35(b). 2

Accordingly, the Superior Court was incorrect in finding that Runyon’s motion was

untimely filed. Nonetheless, the Superior Court’s judgment may be affirmed on the

independent and alternative grounds that no additional information had been

provided to the court that would warrant a reduction or modification of Runyon’s

sentence.3    Other than Runyon’s summary allegation of mental and physical

infirmities, Runyon has not offered, and the Superior Court record does not reflect,

any indication that he has—and will continue to—struggle to complete the court-

ordered drug treatment programs.4

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

Court is AFFIRMED.

                                            BY THE COURT:

                                            /s/ James T. Vaughn, Jr.
                                            Justice




1
  Del. Super. Ct. Cr. R. 35(b).
2
  See Iverson v. State, 2009 WL 2054563, at *1 (Del. July 16, 2009).
3
  Although the Superior Court also reasoned that Runyon’s sentence remained appropriate for the
reasons stated at sentencing, because the record does not contain a transcript of the sentencing
hearing, the Court is unable to affirm the court’s order on this basis. Iverson, 2054563, at *1.
4
  See Valentine v. State, 2014 WL 7894374, at *2 (Del. Dec. 31, 2014).


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