       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                          )
                                            )
       v.                                   )           ID Nos. 1410015328,
                                            )                   14090087801
SHANE E. MCCREARY,                          )
                                            )
       Defendant.                           )

                            Date Submitted: April 23, 2020
                            Date Decided: June 4, 2020

                                        ORDER

       Upon consideration of Defendant’s Motion for Modification/Consideration

(“Motion”), Superior Court Criminal Rule 35, statutory and decisional law, and the

record in this case, IT APPEARS THAT:

       1.     On April 29, 2015, Defendant pled guilty to two counts of Robbery

First Degree, two counts of Robbery Second Degree, and Disregarding a Police

Officer’s Signal.2 By Order dated July 31, 2015, effective October 22, 2014,

Defendant was sentenced as follows: for Robbery First Degree, IN14-10-1682, 10

years at Level V (Substance Abuse Treatment Program), suspended after 3 years and

upon successful completion of Substance Abuse Treatment Program, for 7 years at

Level IV (DOC Discretion), suspended after 6 months, for 2 years at supervision



1
  The sentences at issue before the Court were consolidated with Court of Common Pleas Case
No. 1409011612. See ID No. 1410015328, D.I. 21; ID No. 1409008780, D.I. 4.
2
  ID No. 1410015328, D.I. 7; ID No. 1409008780, D.I. 3.
Level III; for Robbery First Degree, IN14-10-1683, 10 years at Level V, suspended

after 3 years, for 2 years at supervision Level III; for Robbery Second Degree, PN14-

10-1684, 5 years at Level V, suspended for 2 years at supervision Level III; for

Robbery Second Degree, PN14-10-1685, 5 years at Level V, suspended for 2 years

at supervision Level III; and for Disregarding a Police Officer’s Signal, N14-10-

1656-I, 1 year at Level V, suspended for 1 year at supervision Level II.3

       2.     On April 23, 2020, Defendant filed this Motion, asking the Court to

modify his sentence to “13 years at Level V suspended for 6 years at Level V

followed by 2 years at Level III.” 4 Essentially, Defendant is asking the Court to

suspend the remaining Level V time of his sentences and allow him to immediately

flow down to Level III supervision. 5 In support of the Motion, Defendant cites: (1)

his participation in behavior and substance abuse treatment programs; (2) his

potential exposure to COVID-19; and (3) his acceptance and responsibility for his

action.6

       3.     Superior Court Criminal Rule 35 governs motions for modification of

sentence. “Under Rule 35(b), a motion for sentence modification must be filed




3
  ID No. 1410015328, D.I. 21; ID No. 1409008780, D.I. 4. The first 3 years at Level V of each
Robbery First Degree sentence are mandatory pursuant to 11 Del. C. § 832. Probation is
concurrent.
4
  ID No. 1410015328, D.I. 39; ID No. 1409008780, D.I. 16.
5
  Id.
6
  Id.
                                             2
within ninety days of sentencing, absent a showing of ‘extraordinary

circumstances.’”7

       4.      Defendant filed this Motion more than 3 years after the imposition of

his sentence, and it is therefore time-barred under Rule 35(b).

       5.      The 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. Delaware law places a heavy burden on the moving party to establish

extraordinary circumstances in order to “uphold the finality of sentences.” 8

“Extraordinary circumstances” excusing an untimely Rule 35(b) motion are

circumstances that “specifically justify the delay, are entirely beyond a petitioner’s

control, and have prevented the applicant from seeking the remedy on a timely

basis.”9 Mitigating factors that could have been presented at sentencing, exemplary

conduct or successful rehabilitation while incarcerated does not constitute

“extraordinary circumstances.”10 Defendant has failed to set forth facts establishing




7
  Croll v. State, 2020 WL 1909193, at *1 (Del. Apr. 17, 2020) (TABLE) (affirming the Superior
Court’s denial of a motion for modification of sentence where the motion was repetitive and filed
beyond the 90-day limit); see Hewett v. State, 2014 WL 5020251, at *1 (Del. Oct. 7, 2014) (“When
a motion for reduction of sentence is filed within ninety days of sentencing, the Superior Court has
broad discretion to decide whether to alter its judgment.”).
8
  State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015).
9
  State v. Culp, 152 A.3d 141, 145 (Del. 2016) (internal quotations omitted) (quoting Diaz, 2015
WL 1741768, at *2).
10
    See id. at 145–46 (recognizing that participation in educational and rehabilitative prison
programs is commendable, but does not by itself constitute “extraordinary circumstances” for
purposes of Rule 35(b)).
                                                 3
“extraordinary circumstances,” and therefore, the Court will not consider the merits

of Defendant’s untimely motion.

      6.    The Court finds the Defendant’s sentences are appropriate for all the

reasons stated at the time of sentencing.     No additional information has been

provided to the Court that would warrant a reduction of modification of this

sentence.

      NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s

Motion for Modification/Consideration is DENIED.

                                                   Jan R. Jurden
                                             Jan R. Jurden, President Judge


Original to Prothonotary

cc:   Shane McCreary (SBI# 00732817)
      Annemarie H. Puit, DAG




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