         IN THE SUPREME COURT OF THE STATE OF DELAWARE

STANLEY D. GATEWOOD,                      §
                                          §   No. 270, 2019
       Defendant Below,                   §
       Appellant,                         §
                                          §
       v.                                 §   Court Below–Superior Court
                                          §   of the State of Delaware
STATE OF DELAWARE,                        §
                                          §   Cr. ID No. 1407022963 (N)
       Plaintiff Below,                   §
       Appellee.                          §

                          Submitted: September 4, 2019
                          Decided:   November 18, 2019

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, 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)    Stanley Gatewood appeals the Superior Court’s June 5, 2019 order

denying 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

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

      (2)    The record reflects that Gatewood pleaded guilty in May 2015 to

possession of a firearm by a person prohibited (“PFBPP”), receiving a stolen firearm,

and second degree conspiracy. Following a presentence investigation, the Superior

Court sentenced Gatewood as follows: (i) for PFBPP, to fifteen years of Level V
incarceration, suspended after ten years for five years of Level IV supervision at the

Violation of Probation (“VOP”) Center, suspended after one year for two years of

Level III probation; (ii) for receiving a stolen firearm, to three years of Level V

incarceration, suspended for one year of Level IV supervision on Home

Confinement, followed by one year of Level III probation; and (iii) for second degree

conspiracy, to two years of Level V incarceration, suspended for one year of Level

III probation. The sentencing order specified that Gatewood was to serve his Level

IV sentence at the VOP Center followed by Home Confinement. Gatewood did not

appeal.

         (3)    Gatewood filed a motion to modify his sentence under Superior Court

Criminal Rule 35(b) (“Rule 35(b)”) in November 2015 and again in April 2016. The

Superior Court denied both motions. In July 2016, Gatewood filed a motion for

correction of an illegal sentence under Superior Court Criminal Rule 35(a). The

Superior Court denied the motion, and we affirmed its denial on appeal. 1

         (4)    On May 17, 2019, Gatewood filed another motion to modify his

sentence, asking the Superior Court to remove the condition that part of his sentence

be served at the VOP Center. Gatewood argued that the condition was excessive

because he had served time for his violation of probation in a different case.

Gatewood also cited his voluntary participation in prison rehabilitation programs


1
    Greenwood v. State, 2016 WL 7212313 (Del. Dec. 12, 2016).


                                               2
and argued that removal of the condition would permit him to transition to Home

Confinement in a more expeditious manner. On June 5, 2019, the Superior Court

denied the motion, finding that the motion was untimely and repetitive, and that the

sentence imposed remained appropriate for the reasons stated at sentencing.

Although the Superior Court acknowledged Gatewood’s participation in educational

and rehabilitation programs, it found that Level IV supervision remained

appropriate. The court noted, however, that the Level IV portion of Gatewood’s

sentence could be served at the discretion of the Department of Correction (“the

DOC”).2 This appeal followed.

       (5)    In his opening brief, Gatewood argues that (i) the Superior Court

improperly found his motion to be untimely because Rule 35(b) provides that a term

or condition of partial confinement may be reduced at any time, (ii) the Superior

Court did not understand the nature of his request to modify his sentence, (iii) the

Level IV portion of his sentence is excessive, and (iv) the Superior Court’s order

noting that the Level IV portion of his sentence is to be served at the DOC’s

discretion is ambiguous and is insufficient to give the DOC authorization to exercise

its discretion.




2
  We understand this language to mean that the determination of the type of Level IV confinement
(e.g., Home Confinement, Work Release, VOP Center) is within the DOC’s discretion.


                                               3
       (6)       Rule 35(b) provides that a court may reduce a sentence of imprisonment

on a motion made within ninety days of sentencing. 3 Rule 35(b) also permits the

Superior Court to reduce the term or conditions of partial confinement or probation

at any time. 4 We review the Superior Court’s denial of a motion for modification of

sentence under Rule 35(b) for abuse of discretion. 5                 This standard is highly

deferential. 6

       (7)       Greenwood is correct that a motion seeking modification of the terms

of partial confinement is not subject to the ninety day limitation period of Rule 35(b).

Thus, the Superior Court erred when it found his motion for modification was

untimely.7       Nevertheless, the Superior Court’s denial of Gatewood’s motion for

sentence modification may be affirmed on the independent and alternative grounds

that the motion was repetitive.8 As to Gatewood’s argument that the Superior Court

did not understand the nature of his request, the Superior Court’s order belies this

claim—although the Superior Court did not remove the VOP Center condition, it

gave the DOC the discretion to allow Gatewood to serve all of his Level IV time on


3
  Del. Super. Ct. Cr. R. 35(b).
4
  Id.
5
  Benge v. State, 101 A.3d 973, 976-77 (Del. 2014).
6
  Id. at 977.
7
  Iverson v. State, 2009 WL 2054563, at *1 (Del. July 16, 2009) (reversing the Superior Court’s
denial of the defendant’s motion to modify the length of his Level IV Home Confinement portion
of his sentence on the grounds that it was untimely filed).
8
  State v. Culp, 152 A.3d 141, 145 (Del. 2016) (finding the Superior Court abused its discretion by
ignoring Rule 35(b)’s direction that the court not consider repetitive requests for reduction of
sentence).


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Home Confinement.       Finally, the Superior Court need not issue a modified

sentencing order because the DOC Offender Status Sheet—upon which the DOC

relies to determine an inmate’s good time credit and release date, among other

things—accurately reflects the fact that Gatewood’s Level IV time is to be served at

the discretion of the DOC.

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

Court is AFFIRMED.

                                      BY THE COURT:


                                      /s/ Gary F. Traynor
                                      Justice




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