           IN THE SUPREME COURT OF THE STATE OF DELAWARE

 ANDRE McDOUGAL,                          §
                                          §   No. 48, 2019
          Defendant Below,                §
          Appellant,                      §   Court Below–Superior Court
                                          §   of the State of Delaware
          v.                              §
                                          §   Cr. ID No. 0607023450
 STATE OF DELAWARE,                       §
                                          §
          Plaintiff Below,                §
          Appellee.                       §

                             Submitted: February 13, 2019
                              Decided: March 29, 2019

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

                                      ORDER

      After careful consideration of the appellant’s opening brief, the State’s motion

to affirm, and the record on appeal, it appears to the Court that:

      (1)      The appellant, Andre McDougal, filed this appeal from the Superior

Court’s denial of his seventh 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 McDougal’s opening brief that his appeal is without merit. We agree and

affirm.

      (2)      The record reflects that McDougal pleaded guilty in September 2008 to

a single count of manslaughter. The Superior Court sentenced McDougal to twenty
years at Level V incarceration, suspended after three years for one year of Level III

probation. McDougal did not file a direct appeal of his conviction or sentence.

      (3)    In January 2010, the Superior Court found McDougal in violation of

the terms of his probation and re-sentenced McDougal to seventeen years at Level

V, suspended for seventeen years at Level IV, in turn to be suspended after six

months for one year of Level III probation. In March 2011, the Superior Court again

found McDougal had violated the terms of his probation and re-sentenced him to

seventeen years at Level V, to be suspended after fifteen years for two years of Level

III probation. McDougal appealed and this Court affirmed.1

      (4)    In June 2017, McDougal filed a motion to correct his sentence. The

Superior Court granted the motion and modified the length of McDougal’s Level III

probation from two years to eighteen months. Between July of 2017 and August of

2018, McDougal filed five additional motions to correct his sentence, all of which

were denied by the Superior Court.2

      (5)    On January 7, 2019, McDougal filed another motion for

modification/reduction of sentence under Superior Court Criminal Rule 35(b).

McDougal asked the Superior Court to modify his sentence to suspend the remainder




1
  McDougal v. State, 2011 WL 4921345 (Del. Oct. 17, 2011).
2
  McDougal appealed two of these denials. We affirmed the Superior Court’s decision in each
instance. McDougal v. State, 2018 WL 266860 (Del. Jan. 2, 2018); McDougal v. State, 2018 WL
6844722 (Del. Dec. 31, 2018).


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of his Level V sentence for Level III probation to run concurrent with a Level V

sentence McDougal is serving for other convictions. He also claimed his sentence

violated double jeopardy because he was sentenced for both the VOP and the

underlying charges that served as the basis of the VOP. The Superior Court denied

the motion, finding it untimely filed, repetitive, and meritless. This appeal followed.

       (6)    McDougal raises two issues in his opening brief on appeal. First,

McDougal claims the Superior Court abused its discretion when it deemed

McDougal’s motion was untimely filed.                 Second, McDougal argues his VOP

sentence constituted a double jeopardy violation and otherwise violated his due

process rights.

       (7)    We review the Superior Court’s denial of a motion for modification of

sentence under Rule 35(b) for abuse of discretion.3             This standard is highly

deferential.4 Under Rule 35(b), a motion for reduction of sentence must be filed

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

circumstances.”5 Rule 35(b) also provides that the Superior Court will not consider

repetitive requests for sentence modifications.6




3
  Benge v. State, 101 A.3d 973, 976-77 (Del. 2014).
4
  Id. at 977.
5
  Del. Super. Ct. Cr. R. 35(b).
6
  Id.


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       (8)    McDougal suggests the Superior Court improperly denied his motion

as untimely because he seeks modification of his probation sentence and Rule 35(b)

provides the Superior Court may reduce the conditions or term of probation at any

time. But, in reality, McDougal asked the Superior Court to modify his Level V

sentence by suspending it. The motion was filed well after the 90-day period allowed

by Rule 35(b) for the Superior Court to reduce a prison sentence. Moreover, the

motion was McDougal’s seventh motion to correct his sentence. The Superior Court

did not abuse its discretion in denying the motion as untimely and repetitive.

       (9)    The Superior Court also did not abuse its discretion in finding

McDougal’s Rule 35 motion lacked merit.                 We have previously found that

McDougal was afforded the due process to which he was entitled in a VOP

proceeding.7 Further, McDougal’s argument that the Superior Court’s imposition of

a sentence for both his VOP and the underlying crimes violates double jeopardy is

incorrect. There is a material distinction between prosecution for a criminal offense

and revocation of probation in a previously imposed sentence.8 When McDougal

violated the terms of his probation, he received deferred punishment for his

manslaughter conviction. He received a separate and distinct sentence for the crimes



7
  McDougal, 2011 WL 4921345, at *2 (“The transcript of McDougal’s March 2, 2011 VOP hearing
reflects that … [McDougal] was afforded the due process to which he was entitled in a VOP
proceeding.”).
8
  Dorman v. State, 2001 WL 233655, at *2 (Del. Mar. 6, 2001) (citing United States v. Clark, 984
F.2d 319, 320 (9th Cir. 1993)).


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that served as the basis for his VOP. Double jeopardy is not implicated in these

circumstances.9 Accordingly, we find no abuse of the Superior Court’s discretion in

denying McDougal’s motion for modification of sentence as untimely, repetitive,

and meritless.

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

Court is AFFIRMED.

                                      BY THE COURT:


                                      /s/ James T. Vaughn, Jr.
                                      Justice




9
    Id.


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