         IN THE SUPREME COURT OF THE STATE OF DELAWARE

JULIAN BODNARI,                          §
                                         §   No. 127, 2019
       Defendant Below,                  §
       Appellant,                        §   Court Below—Superior Court
                                         §   of the State of Delaware
       v.                                §
                                         §   Cr. ID. No. 9909027880 (S)
STATE OF DELAWARE,                       §
                                         §
       Plaintiff Below,                  §
       Appellee.                         §

                          Submitted: July 1, 2019
                          Decided: August 20, 2019

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                     ORDER

      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, Julian Bodnari, filed this appeal from the Superior

Court’s denial of his motion for sentence reduction or modification. The State has

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

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

      (2)    Bodnari was convicted of Trafficking in Cocaine, Possession with

Intent to Deliver Cocaine, Possession of a Firearm During the Commission of a

Felony, and other offenses. He was sentenced in 2003 to an aggregate of thirty-three

years in prison. On direct appeal, this Court affirmed Bodnari’s convictions and
sentence,1 and in 2006 the Court affirmed the Superior Court’s denial of Bodnari’s

motion for postconviction relief.2 Since then, Bodnari has filed several motions in

the Superior Court seeking resentencing or reduction or modification of his sentence,

each of which has been denied.3

       (3)    On February 8, 2019, Bodnari filed another motion for reduction of

sentence. He argued that extraordinary circumstances warranted consideration of

his motion more than ninety days after sentencing4 because (i) the State prevented

Bodnari from obtaining favorable recommendations from the Board of Parole and

Board of Pardons in 2011 and 2015, and from obtaining a Department of Correction

recommendation under 11 Del. C. § 4217,5 by submitting false information that

Bodnari was involved in organized crime in Pennsylvania and Eastern Europe, (ii)

since the time of Bodnari’s sentencing, the General Assembly has amended the

criminal code to reduce the minimum mandatory sentences for the offenses of which

Bodnari was convicted, and (iii) Bodnari has demonstrated his rehabilitation through



1
  Bodnari v. State, 2003 WL 22880372 (Del. Dec. 3, 2003).
2
  Bodnari v. State, 2006 WL 155237 (Del. Jan. 18, 2006).
3
  See State v. Bodnari, Cr. ID No. 9909027880 (S) (Del. Super. Ct.), Docket Entry Nos. 152-54,
158-59, 161-62, 170, 172. See also Bodnari v. State, 2016 WL 4091232 (Del. July 18, 2016)
(affirming denial of “motion for resentencing under House Bill 312”).
4
  See SUPER. CT. CRIM. R. 35(b) (providing that the Superior Court will consider a motion for
reduction of sentence filed more than ninety days after sentencing only in “extraordinary
circumstances”).
5
  11 Del. C. § 4217 establishes a procedure by which the Superior Court may modify a sentence
“solely on the basis of an application filed by the Department of Correction for good cause shown
which certifies that the release of the defendant shall not constitute a substantial risk to the
community or the defendant’s own self.”
                                               2
completion of numerous programs and receipt of positive recommendations from

prison personnel.

       (4)    The Superior Court denied the motion, concluding that Bodnari had not

demonstrated extraordinary circumstances sufficient to overcome the ninety-day

time limitation for a motion for sentence reduction under Superior Court Rule 35(b).

The court also stated that the court remained satisfied that the sentence is reasonable

and appropriate. Bodnari has appealed from the Superior Court’s denial of his

motion.

       (5)    We find no merit to Bodnari’s appeal. We review the Superior Court’s

denial of a motion for reduction of sentence under Rule 35(b) for abuse of

discretion.6 Under Rule 35(b), the Superior Court will consider a motion for

reduction of sentence more than ninety days after sentencing only in “extraordinary

circumstances.”7         “Extraordinary      circumstances”      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.”8 Bodnari’s

contentions regarding his applications for commutation and his assertion that he “did

not receive a fair sentencing originally, due to the court’s reliance on inaccurate and



6
  Benge v. State, 101 A.3d 973, 976-77 (Del. 2014).
7
  SUPER. CT. CRIM. R. 35(b). In addition to the exception for extraordinary circumstances, the
ninety-day time limitation also does not bar an application made in accordance with 11 Del. C. §
4217.
8
  State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015) (internal quotations omitted).
                                               3
extraneous information in the record”9 do not satisfy this standard or otherwise

provide grounds for reducing Bodnari’s sentence, particularly because Bodnari

received the minimum mandatory sentence for the offenses of which he was

convicted. Likewise, as the Superior Court correctly observed, “participation in

educational and rehabilitative programs, while commendable, does not, in and of

itself, constitute ‘extraordinary circumstances’ for purposes of Rule 35(b).”10

Finally, in 2013, the Superior Court rejected Bodnari’s claim that his sentence should

be reduced because the General Assembly later amended the sentencing ranges for

the applicable offenses, and Bodnari did not appeal.            He therefore cannot

demonstrate extraordinary circumstances for considering that issue again now; in

any event, this Court has held that the General Assembly’s amendment of certain

drug trafficking laws in 2003 applied only prospectively and not retroactively. 11

       (6)    Rule 35(b) also provides that the Superior Court will not consider

repetitive requests for sentence reduction.12 Bodnari’s repetitive motion for sentence

reduction was filed well beyond the ninety-day limit. The Superior Court did not

abuse its discretion by denying the untimely and repetitive motion.13




9
  Opening Brief at 5.
10
   State v. Culp, 152 A.3d 141, 145-46 (Del. 2016).
11
   E.g., Jones v. State, 2004 WL 2291310 (Del. Oct. 7, 2004).
12
   SUPER. CT. CRIM. R. 35(b).
13
   McDougal v. State, 2019 WL 2275002 (Del. Mar. 29, 2019).
                                              4
          (7)    We also note that, contrary to Bodnari’s assertion, the Senior Court

Clerk appropriately struck the Motion to Compel Production of Documents that

Bodnari filed in this Court. “This court does not conduct trials for the determination

of facts, nor does it have any procedure to afford discovery. This court reviews

decisions of trial courts on the basis of the records made in them.”14

          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/ James T. Vaughn, Jr.
                                               Justice




14
     Beard v. Elster, 160 A.2d 731, 741 (Del. 1960).
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