           IN THE SUPREME COURT OF THE STATE OF DELAWARE

 DAVID H. DICKERSON,                    §
                                        §
          Defendant Below-              §   No. 109, 2016
          Appellant,                    §
                                        §
          v.                            §   Court Below—Superior Court
                                        §   of the State of Delaware
 STATE OF DELAWARE,                     §
                                        §   Cr. ID 0811010588
          Plaintiff Below-              §
          Appellee.                     §

                             Submitted: May 16, 2016
                              Decided: July 7, 2016

Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

                                     ORDER

        This 7th day of July 2016, upon consideration of the appellant’s opening

brief, the State’s motion to affirm, and the record below, it appears to the Court

that:

        (1)    The appellant, David Dickerson, filed this appeal from a Superior

Court order denying his ninth motion for modification of sentence. The State has

filed a motion to affirm the judgment below on the ground that it is manifest on the

face of Dickerson’s opening brief that his appeal is without merit. We agree and

affirm.

        (2)    A Superior Court jury convicted Dickerson in June 2009 of five

criminal offenses, including Burglary in the Third Degree and Attempted Burglary
in the Third Degree. The Superior Court sentenced him to a total period of eleven

years at Level V incarceration, to be suspended after serving nine months in prison

for one year of Level III probation. Dickerson did not appeal. In July 2010, while

at a work release center, Dickerson left the center on a pass and failed to return.

He was arrested in New York in November 2010 and extradited to Delaware. He

pled guilty to Escape in the Third Degree. Thereafter, in December 2010, the

Superior Court found that Dickerson committed a violation of his probation and

sentenced him to a total period of ten years at Level V incarceration. Dickerson

filed an appeal, but later withdrew it voluntarily.

      (3)    Since that time, he has filed nine unsuccessful motions seeking

correction or modification of his VOP sentence. In February 2016, Dickerson filed

a motion requesting review of his sentence under House Bill 312, which was

enacted in July 2014 and allows the Superior Court to impose sentences either

concurrently or consecutively.

      (4)    On appeal, Dickerson argues that the passage of H.B. 312, combined

with his numerous accomplishments while in prison, constitutes “extraordinary

circumstances” under Superior Court Criminal Rule 35(b). He argues that the

Superior Court abused its discretion in denying his motion.

      (5)    Dickerson’s assertions, however, provide no basis for this Court to

reverse the Superior Court’s denial of his motion for modification of sentence.



                                           2
Under Superior Court Criminal 35(b), a motion for reduction of sentence must be

filed within 90 days of sentencing unless the defendant can establish extraordinary

circumstances.1 Rule 35(b) also provides that the Superior Court will not consider

repetitive requests for sentence modification.2 This was Dickerson’s ninth motion

for modification of sentence, and it was filed more than 90 days after he was

originally sentenced. To the extent Dickerson relies upon H.B. 312 to establish

extraordinary circumstances, this Court recently held that the amended statute only

applies prospectively and not retroactively.3 Moreover, good behavior in prison

does not constitute extraordinary circumstances.4 Accordingly, we find no abuse

of the Superior Court’s discretion in denying Dickerson’s untimely and repetitive

motion for modification of sentence.

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

Court is AFFIRMED.

                                          BY THE COURT:

                                          /s/ Collins J. Seitz, Jr.
                                                  Justice




1
  Del. Super. Ct. Crim. R. 35(b) (2016).
2
  Id.
3
  Fountain v. State, __ A.3d __, 2016 WL 2927750 (Del. May 16, 2016)
4
  State v. Diaz, 2015 WL 1741768, at *2 n.9 (Del. Apr. 15, 2015).


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