         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 QUENTIN A. WILKERSON,                   §
                                         §
       Defendant Below,                  §   No. 299, 2017
       Appellant,                        §
                                         §   Court Below—Superior Court
       v.                                §   of the State of Delaware
                                         §
 STATE OF DELAWARE,                      §   Cr. ID No. 1306023969 (S)
                                         §
       Plaintiff Below,                  §
       Appellee.                         §

                          Submitted: September 25, 2017
                          Decided:   November 13, 2017

Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.

                                    ORDER

      This 13th day of November 2017, upon consideration of the appellant’s

opening brief, the appellee’s motion to affirm, and the record below, it appears to

the Court that:

      (1)    The appellant, Quentin A. Wilkerson, filed this appeal from a Superior

Court order denying his motion for sentence modification under Superior Court

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

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

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

      (2)    The record reflects that, on April 29, 2014, Wilkerson pled guilty to one

count of Dealing in Child Pornography and two counts of Possession of Child
Pornography.        Wilkerson was sentenced as follows: (i) for Dealing in Child

Pornography, twenty-five years of Level V incarceration, suspended after three years

and six months for decreasing levels of supervision; and (ii) for each count of

Possession of Child Pornography, three years of Level V incarceration, suspended

for three years of Level III probation.             The Level III probation was to run

consecutively. Wilkerson was also prohibited from having any contact with any

minor children, except for his own children, and from owning or possessing any

electronic equipment that could access the internet. Wilkerson did not appeal the

Superior Court’s judgment. This Court affirmed the Superior Court’s denial of

Wilkerson’s first motion for postconviction relief.1

         (3)    On May 22, 2017, Wilkerson filed a motion for modification of

sentence. Wilkerson sought modification of the no contact with minors (except his

children) condition to no unlawful contact with minors so he could attend his

children’s school functions and his nieces and nephews could visit his parents’ house

where he lives. He also sought modification to have internet access and a cellphone

with internet capability and a camera because internet access and a cell phone were

necessary for reestablishment of his transportation business and he could not find a

cell phone without a camera.




1
    Wilkerson v. State, 2016 WL 4093899 (Del. July 21, 2016).
                                                2
         (4)     In an order dated June 27, 2017, the Superior Court denied Wilkerson’s

motion, and held that Wilkerson’s application was subject to the limitation set forth

in Rule 35(b) for sentence reduction motions filed more than ninety days after

imposition of sentence. When the ninety-day limitation in Rule 35(b) applies, the

Superior Court will only consider a motion for sentence reduction in extraordinary

circumstances or under 11 Del. C. § 4217. The Superior Court found Wilkerson’s

sentence remained reasonable and appropriate given the nature of his offenses. The

Superior Court then found there were no extraordinary circumstances to support

consideration of Wilkerson’s motion, which was filed more than ninety days after

the imposition of his sentence. The Superior Court noted that Probation and Parole

confirmed Wilkerson could use computers at the Department of Labor to apply for

employment. This appeal followed.

         (5)     We review the Superior Court’s grant or denial of a motion for

modification of sentence for abuse of discretion.2 Under this highly deferential

standard,” the test is whether “the trial court acted within a zone of reasonableness

or stayed within a ‘range of choice.’”3 As the State recognizes in its motion to affirm,

Wilkerson’s motion was not subject to the ninety-day limitation in Superior Court

Criminal Rule 35(b), which applies to motions for reduction of sentences of



2
    State v. Lewis, 797 A.2d 1198, 1202 (Del. 2002).
3
    Id. (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir.1984)).
                                                 3
imprisonment.4 Wilkerson was on probation, and not seeking to reduce a term of

imprisonment. The Superior Court “may . . . reduce the fine or term or conditions

of partial confinement or probation, at any time.”5

       (6)     In his opening brief, Wilkerson argues for the first time that his Level

IV Home Confinement interferes with employment he obtained after he filed his first

motion for modification of sentence, he needs internet access for his new

employment, and the internet restrictions violate his First Amendment rights under

Packingham v. North Carolina.6 Wilkerson did not make these arguments in the

Superior Court. We will not consider them for the first time on appeal.7 To the

extent Wilkerson does not raise claims he made in the Superior Court, he has waived

those claims.8

       (7)     Although the Superior Court mistakenly applied the ninety-day

limitation to Wilkerson’s motion to modify the terms of his probation, we


4
  Super. Ct. Crim. R. 35(b) (providing that court may reduce sentence of imprisonment on motion
made within ninety days after sentence is imposed and that court will only consider such a motion
made after ninety days in “extraordinary circumstances or pursuant to 11 Del. C. § 4217”); Teat v.
State, 2011 WL 4839042, at *1 (Del. Oct. 12, 2011) (finding Superior Court erred in holding that
motion for modification of Level IV time was subject to ninety-day period); Johnson v. State, 2008
WL 187958, at *1 (Del. Jan. 9, 2008) (finding Superior Court erred in holding that motion to
reduce probation was untimely).
5
  Super. Ct. Crim. R. 35(b).
6
  137 S. Ct. 1730 (2017) (holding a statute making it a felony for registered sex offenders to access
commercial social networking websites impermissibly restricted free speech in violation of the
First Amendment).
7
  Supr. Ct. R. 8.
8
  Supr. Ct. R. 14(b)(vi)(A)(3) (“The merits of any argument that is not raised in the body of the
opening brief shall be deemed waived and will not be considered by the Court on appeal.”).
                                                 4
nonetheless affirm the Superior Court’s denial of Wilkerson’s motion. 9 In denying

Wilkerson’s motion, the Superior Court noted that it had reviewed Wilkerson’s

presentence report and considered the nature of his crimes before imposing the

original sentence. The Superior Court concluded the sentence remained appropriate

in light of the nature of the offenses. Given the nature of Wilkerson’s crimes (use

of the internet to obtain and view child pornography) and the arguments in his

motion, the Superior Court did not act unreasonably in denying Wilkerson’s motion

to modify his sentence.10


9
  Unitrin, Inc. v. American Gen. Corp., 651 A.2d 1361, 1390 (Del. 1995) (noting that the Delaware
Supreme Court may affirm a trial court's judgment for reasons different than those articulated by
the trial court).
10
   We recognize that the burdens imposed on Wilkerson by the restrictions limiting his ability to
have contact with minors other than his children or to use the internet are considerable.
Wilkerson’s ability to be a parent when he cannot even attend a school play or youth sporting event
in which his children participate is severely compromised and may put his children in an awkward
position, as they will be asked why their father never comes to these events. Likewise, a total ban
on internet usage, given today’s economy, might inhibit Wilkerson from earning a living. Taken
together, these restrictions, if not tailored with appropriate protections, might impede Wilkerson’s
rehabilitation and safe reentry into society. But, the reality is that if Wilkerson wishes to convince
the Superior Court that these restrictions can be tailored, with the requirement for certain
safeguards to protect children and the general public, he must proceed differently than he has. For
starters, Wilkerson has presented to us new arguments and circumstances he did not present to the
Superior Court, which is not proper and which obviously that Court could not have considered. As
important, rather than acknowledge the seriousness of his past crimes and the dangers they present
to the most vulnerable among us, Wilkerson sought relaxed restrictions on his ability to interact
with other minors without taking full responsibility for his crimes. This failure to accept
responsibility was likely considered by the Superior Court in its decision not to modify the
restrictions.

If, in the future, Wilkerson wishes to seek a modification, he would be well advised to consult with
the Department of Correction first and attempt to tailor a reasonable set of protective provisions
that would allow him to have some greater flexibility in these important areas, but in a way that is
safe for children and the public. And he must present all his arguments to the Superior Court. As
we have pointed out, the Superior Court was incorrect in requiring Wilkerson to show
                                                  5
       NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED.

                                             BY THE COURT:
                                             /s/ Leo E. Strine, Jr.
                                             Chief Justice




extraordinary circumstances for modification of his sentence based on his filing of the motion
more than ninety days after his sentence was imposed. Because he is on probation, Wilkerson may
present another motion. Therefore, Wilkerson has an opportunity to present his request again and
to prevail under a standard that is not onerous. But, in that process, the trial court judge who is
closest to the case is the one whose judgment is most important and entitled to due deference. Our
Superior Court takes its duties very seriously, and we have no doubt that it will consider any
renewed application carefully and with an open mind if Wilkerson proceeds in a respectful, careful
manner after consultation with the Department of Correction and presents all of his new arguments
to the Superior Court fairly.

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