     IN THE SUPREME COURT OF THE STATE OF DELAWARE

 MARVIN HOLMES,                         §
                                        §   No. 659, 2014
       Defendant Below-                 §
       Appellant,                       §
                                        §
       v.                               §   Court Below—Superior Court
                                        §   of the State of Delaware,
 STATE OF DELAWARE,                     §   in and for New Castle County
                                        §   Cr. ID 1210015494
       Plaintiff Below-                 §
       Appellee.                        §

                          Submitted: January 22, 2015
                           Decided: February 12, 2015

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                 ORDER

      This 12th day of February 2015, upon consideration of the opening

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

Court that:

      (1)     The appellant, Marvin Holmes, filed this appeal from the

Superior Court’s denial of his 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 Holmes’ opening brief that his appeal is without

merit. We agree and affirm.

      (2)     The record reflects that Holmes was convicted in 2013 of

Escape after Conviction. The Superior Court sentenced him as a habitual
offender to eight years at Level V incarceration. This Court affirmed his

conviction and sentence on direct appeal.1 On August 12, 2014, Holmes

filed a motion for modification of his sentence based on extraordinary

circumstances. Holmes sought a reduction of his sentence because he has

multiple myeloma, a form of cancer. After a sentence review hearing in

September 2014 and upon receipt of the State’s response in opposition, the

Superior Court denied Holmes’ motion on November 10, 2014. This appeal

followed.

         (3)    Superior Court Criminal Rule 35(b) provides that a motion for

modification of a sentence of imprisonment that is not filed within 90 days

of sentencing will only be considered in extraordinary circumstances or

pursuant to 11 Del. C. § 4217, which permits a sentence modification if the

Department of Correction (DOC) certifies that an inmate has a serious

medical illness and that release of the inmate shall not constitute a

substantial risk to the community or the inmate.2                  In this case, it is

unfortunate that Holmes is suffering from a serious medical condition. But

his condition alone does not entitle him to a modification of sentence unless

the DOC also certifies that his release shall not constitute a substantial risk
1
    Holmes v. State, 2014 WL 3559686 (Del. July 17, 2014).
2
  Del. Super. Ct. Crim. R. 35(b) (2015). An application for reduction of sentence filed by
the Department of Correction must be submitted to and approved by the Board of Parole
before it can be submitted to the Superior Court.


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to the community or to Holmes himself.               The DOC has not made the

required certification under § 4217. In the absence of this certification, we

find no abuse of the Superior Court’s discretion in denying Holmes’

motion.3

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

Superior Court is AFFIRMED.

                                             BY THE COURT:

                                             /s/ Karen L. Valihura
                                                    Justice




3
    See Hubbard v. State, 2011 WL 5009772 (Del. Oct. 20, 2011).


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