           IN THE SUPREME COURT OF THE STATE OF DELAWARE

STEVEN P. DULA,                         §
                                        §    No. 374, 2017
      Defendant Below,                  §
      Appellant,                        §    Court Below—Superior Court
                                        §    of the State of Delaware
      v.                                §
                                        §    Cr. ID Nos. 1301011571 (S)
STATE OF DELAWARE,                      §                0909010913 (S)
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                             Submitted: October 4, 2017
                             Decided:   December 14, 2017

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

                                   ORDER

      This 14th day of December 2017, upon consideration of the appellant’s

opening brief, the appellee’s motion to affirm, and the Superior Court record, it

appears to the Court that:

      (1)    The appellant, Steven P. Dula, is incarcerated at the James T. Vaughn

Correctional Center serving sentences imposed in 2011 and 2013. In August 2017,

Dula filed motions seeking a modification and reduction of his Level V incarceration

on the basis that he is suffering from a heart condition for which the Department of

Correction has refused to provide adequate treatment. By order dated September 1,
2017, the Superior Court denied Dula’s motions for modification and reduction of

sentence.1 This appeal followed.

       (2)    Motions for reduction or modification of sentence are governed by

Superior Court Criminal Rule 35(b).2 Rule 35(b) provides that a motion not filed

within ninety days of sentencing will be considered “only in extraordinary

circumstances” or under 11 Del. C. § 4217.3 Section 4217 permits a reduction of

sentence only upon application by the Department of Correction for “good cause”

shown, which can include, among other things, “rehabilitation of the offender” and

“serious medical illness.”4       The Department of Correction’s application under

section 4217 for a modification of sentence must certify that the offender’s release

shall not constitute a substantial risk to the community or to the offender.5 An

offender can initiate the discretionary process for determining his eligibility for a

medical modification of sentence by submitting a request and required forms to the

Department of Correction.6




1
  In the September 1, 2017 order, the Superior Court denied the motions and referred Dula’s
correspondence to the Department of Correction to address his concerns about medical treatment.
2
  Del. Super. Ct. Crim. R. 35(b).
3
  Id. See 11 Del. C. § 4217 (governing when jurisdiction to modify sentence is retained) (Supp.
2017).
4
  11 Del. C. § 4217(b), (c).
5
  Id. (b).
6
  See West v. State, 2017 WL 2376399 (Del. May 31, 2017) (citing Department of Correction
Bureau of Prisons Policy 3.32, § VI.C.1.).
                                              2
       (3)    Dula argues on appeal that the Superior Court’s denial of his motions

for modification and reduction of sentence was an abuse of discretion. In support of

his argument, Dula relies on a Superior Court decision from 2003, State v. DeRoche,

where the court modified a sentence after determining the existence of extraordinary

circumstances because the defendant was not given adequate medical care under 11

Del. C. § 6536.7 Dula’s reliance on the decision in that case is misplaced.

       (4)    The facts in Dula’s case are analogous to those presented on appeal in

Valentine v. State, where we held that the defendant’s summary allegation of an

untreated eye infection did not constitute extraordinary circumstances warranting a

reduction of sentence under Rule 35(b).8 Here, as in Valentine v. State, we hold that

Dula’s summary allegation that he has not received adequate treatment for a heart

condition does not constitute extraordinary circumstances warranting a modification

or reduction of sentence under Rule 35(b).9

       (5)    Under the plain language of Rule 35(b), 11 Del. C. § 4217 is the

appropriate mechanism through which an offender may pursue a sentence

modification based upon serious medical illness.10 Dula asserts that the Department

of Correction is unwilling to seek a medical modification of sentence on his behalf



7
  State v. DeRoche, 2003 WL 22293654 (Del. Super. Aug. 29, 2003).
8
  Valentine v. State, 2014 WL 7894374 at *2 (Del. Dec. 31, 2017).
9
  Id.
10
   Cf. State v. Culp, 152 A.3d 141, 146 (Del. 2016) (“Section 4217 is the appropriate mechanism
through which an offender may pursue a sentence modification based upon rehabilitation.”).
                                              3
because he was convicted of sex crimes. Dula did not raise his assertion in the

Superior Court, and he has not represented that he initiated the process to determine

his eligibility for a medical modification of sentence by submitting a request and

required forms to the Department of Correction.11 For these reasons too, we affirm

the Superior Court’s judgment.

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

Court is AFFIRMED.

                                         BY THE COURT:

                                         /s/ Karen L. Valihura
                                         Justice




11
  See supra note 6 (referencing Department of Correction Bureau of Prisons Policy 3.32, §
VI.C.1.).
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