         IN THE SUPREME COURT OF THE STATE OF DELAWARE

  MARTIN E. FOUNTAIN,                     §
                                          §
        Defendant Below,                  §   No. 575, 2016
        Appellant,                        §
                                          §   Court Below—Superior Court
        v.                                §   of the State of Delaware
                                          §
  STATE OF DELAWARE,                      §   Cr. ID No. 0209005515
        Plaintiff Below,                  §
        Appellee.                         §

                           Submitted: March 15, 2017
                           Decided:   May 4, 2017

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

                                      ORDER

      This 4th day of May 2017, 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, Martin E. Fountain, filed this appeal from the Superior

Court’s denial of his motion for sentence reduction under Superior Court Criminal

Rule 35(b) and his motion for reargument. The State of Delaware has filed a motion

to affirm the judgment below on the ground that it is manifest on the face of

Fountain’s opening brief that his appeal is without merit. We agree and affirm.

      (2)    On March 19, 2003, Fountain was convicted, following a two-day jury

trial, of two counts of Possession with Intent to Deliver Cocaine, two counts of

Possession with Intent to Deliver Cocaine Within 1,000 Feet of a School, two counts
of Delivery of Cocaine Within 300 Feet of a Park, two counts of Possession of Drug

Paraphernalia, and one count of Unauthorized Use of Food Stamps. Fountain was

sentenced to 103 years of Level V incarceration, suspended after 30 years and 8

months for decreasing levels of supervision.             This Court affirmed Fountain’s

convictions and sentences on direct appeal.1 On May 16, 2016, this Court held 11

Del. C. § 3901(d), which was amended effective July 9, 2014 to give judges

discretion to impose either concurrent or consecutive sentences, did not apply

retroactively to Fountain’s sentences.2

         (3)    On July 11, 2016, Fountain filed a motion for sentence reduction under

Rule 35(b). Fountain argued extraordinary circumstances supported reduction of his

sentence because he had completed numerous rehabilitative programs while

incarcerated and because his sentence constituted cruel and unusual punishment in

violation of the Eighth Amendment of the United States Constitution. The State

opposed the motion. In an order dated September 12, 2016, the Superior Court found

Fountain’s motion was untimely and failed to demonstrate extraordinary

circumstances.

         (4)    On September 13, 2016, Fountain filed a reply to the State’s opposition,

which the Superior Court treated as a timely motion for reargument. The Superior



1
    Fountain v. State, 2004 WL 1965196 (Del. Aug. 18, 2004).
2
    Fountain v. State, 139 A.3d 837, 843 (Del. 2016).


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Court denied the motion for reargument in an order dated November 7, 2016. This

appeal followed.

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

sentence for abuse of discretion, although questions of law are reviewed de novo.3

Under Rule 35(b), a motion for reduction of sentence filed more than 90 days after

imposition of the sentence will be considered only in extraordinary circumstances or

if the Department of Correction files an application under 11 Del. C. § 4217. The

Superior Court “will not consider repetitive requests for reduction of sentence.” 4

       (6)     The Superior Court did not err in denying Fountain’s motion for

sentence reduction and motion for reargument. As the State points out, Fountain’s

motion for sentence reduction was repetitive because Fountain previously sought

reduction of his sentence under 11 Del. C. § 3901(d). Fountain also filed his motion

for sentence reduction more than 90 days after the imposition of his sentence and

failed to show extraordinary circumstances justifying review of his sentence.

Fountain’s completion of numerous rehabilitative programs in prison is

commendable, but does not serve as the basis for sentence reduction under Rule

35(b).5      Fountain’s conclusory Eighth Amendment claim, which is based on his



3
  State v. Culp, 152 A.3d 141, 144 (Del. 2016).
4
  Super. Ct. Crim. R. 35(b).
5
  Culp, 152 A.3d at 147 (holding plea for leniency more than 90 days after imposition of sentence
that is based on rehabilitation must proceed through 11 Del. C. § 4217 or the Board of Pardons
process, not Rule 35(b)).


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juvenile criminal history (although he acknowledges he was not a juvenile at the

time of the crimes underlying the sentences he is currently serving), does not

constitute extraordinary circumstances warranting reduction of his sentence under

Rule 35(b).

      NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED

and the judgment of the Superior Court is AFFIRMED.


                                     BY THE COURT:

                                     /s/ Collins J. Seitz, Jr.
                                            Justice




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