         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 FRED HUFFMAN,                            §
                                          §   No. 76, 2019
       Defendant Below–                   §
       Appellant,                         §
                                          §
       v.                                 §   Court Below–Superior Court
                                          §   of the State of Delaware
 STATE OF DELAWARE,                       §
                                          §   Cr. ID No. 1112004258 (N)
       Plaintiff Below–                   §
       Appellee.                          §

                          Submitted: June 7, 2019
                           Decided: August 7, 2019

Before STRINE, Chief Justice; VALIHURA and VAUGHN, 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)     Fred Huffman appeals two Superior Court orders: (i) the Superior

Court’s denial of his motion for credit for time served; and (ii) the Superior Court’s

denial of his petition for redesignation of tier assignment or, in the alternative,

removal from the sex offender registry (“the petition for relief”). The State has filed

a motion to affirm the judgment below on the ground that it is manifest on the face

of the opening brief that his appeal is without merit. We agree and affirm.

      (2)    The record reflects that Huffman pleaded guilty in September 2012 to

one charge of unlawful sexual intercourse in the second degree. After a presentence
investigation, the Superior Court sentenced Huffman to twenty years of Level V

incarceration, suspended after ten years for decreasing levels of supervision. A

condition of his sentence was to register as a Tier III sex offender. Huffman did not

file a direct appeal.

         (3)    On June 26, 2014, Huffman filed a motion for postconviction relief

under Superior Court Criminal Rule 61 (“Rule 61”). The Superior Court denied the

motion, concluding that Huffman was challenging his sentence rather than his

conviction and, therefore, Rule 61 was not applicable. We affirmed on appeal,

finding that many of Huffman’s claims fell outside the scope of Rule 61 and that the

remaining claims were procedurally barred.1 In March of 2017, Huffman filed a

motion to correct an illegal sentence under Superior Court Criminal Rule 35 (“Rule

35”). The Superior Court denied the motion and we affirmed.2

         (4)    On January 24, 2019, Huffman filed the petition for relief, which the

Superior Court denied on the record after a February 4, 2019 hearing. The following

day, Huffman filed a motion for credit for his time spent outside of prison after

posting bail. The Superior Court considered the motion to be a motion to modify

filed under Rule 35(b) and denied it, finding: (i) the sentence was imposed pursuant

to a negotiated plea agreement; (ii) no extraordinary circumstances existed to excuse


1
    Huffman v. State, 2015 WL 4094234 (Del. July 6, 2015).
2
    Huffman v. State, 2017 WL 2686552 (Del. June 21, 2017).


                                                2
the 90-day deadline for filing a Rule 35(b) motion; (iii) the motion was repetitive;

and (iv) the sentence remained appropriate for all the reasons stated at sentencing.

This appeal followed.

       (5)     On appeal, Huffman asserts a number of repetitive and somewhat

confusing claims that can be summarized as follows: (i) the Superior Court erred in

denying his petition for relief and, in so doing, denied Huffman the opportunity to

present constitutional challenges to his sentence and the sex offender registry

requirements; (ii) the Superior Court exhibited bias in denying his motion for credit

for time served as untimely filed under Rule 35(b); (iii) the Superior Court erred in

considering his motion for credit for time served as a motion to modify his sentence;

and (iv) the Superior Court incorrectly denied him credit for the time period when

he was free on bail.

       (6)     With respect to Huffman’s challenges to the Superior Court’s order

denying his petition for relief, his failure to include the transcript of the Superior

Court’s order precludes our review of his claims related to that hearing. 3 In any

event, Huffman’s claims as to the Superior Court’s ruling are unavailing. Huffman

is barred from seeking relief from the sex offender registry until twenty-five years



3
  Tricoche v. State, 525 A.2d 151, 154 (Del. 1987) (“This Court can only evaluate issues raised on
appeal by reviewing the facts that actually appear in the record. The failure of the defendant to
include in the record adequate transcripts of the proceedings, as required by the rules of this Court,
precludes appellate review of his claim….”).


                                                  3
have elapsed since the last day of his Level V sentence was imposed.4 To the extent

Huffman argues that the sex offender registry requirements and conditions violate

his constitutional rights, the proper procedural vehicle for a challenge to the legality

of a sentence is a motion for correction of illegal sentence. We have already upheld

the legality of Huffman’s sentence.5 We have also upheld the constitutionality of

the sex offender registry and its community notification requirements.                       The

assignment of a convicted sex offender to a statutorily-mandated Risk Assessment

Tier does not implicate a protected liberty interest under the Delaware or United

States Constitution.6 The requirement is not punitive and does not run afoul of ex

post facto protection.7 Nor does the community notification component of the

registry violate the offender’s constitutional right to privacy.8 Huffman’s contention

that the dissemination of his tier registration information violates the Delaware Code

is also without merit. Community notification and dissemination of information


4
  11 Del. C. § 4121(e)(2)a. (“Any sex offender designated to Risk Assessment Tier III may petition
to the Superior Court for redesignation to Risk Assessment II if 25 years have elapsed from the
last day of any Level IV or V sentence imposed at the time of the original conviction … and the
offender has successfully completed an appropriate sex offender treatment program certified by
the State, [and] has not been convicted of any crime (other than a motor vehicle offense) during
such time.”). Huffman also claims that 11 Del. C. § 4122 “unambiguously asserts” that the sex
registration legislation does not apply to defendants convicted of offenses that occurred prior to
1994. A prior version of § 4122 applied only to defendants convicted after June 27, 1994. The
statute was amended to remove that limitation in 2008, prior to Huffman’s sentencing.
5
    Huffman, 2017 WL 2686552.
6
    Helman v. State, 784 A.2d 1058, 1064 (Del. Nov. 7, 2001).
7
    Id.
8
    Id. at 1072-74.


                                                 4
related to public judicial proceedings are exempt from the definition of “criminal

history record information” protected by Title 11 of the Delaware Code9 and

criminal prosecutions are public proceedings by their very nature. 10 Finally, and as

we have observed previously in Huffman’s case, Huffman had “fair notice” of the

sex offender registry requirements when he pleaded guilty to unlawful sexual

intercourse in the second degree and, as part of that plea agreement, agreed to

register as a Tier III sex offender.

           (7)     The remainder of Huffman’s claims concern the Superior Court’s

denial of his motion for credit for time served. The Superior Court considered

Huffman’s motion as a motion for modification of sentence filed under Rule 35(b).

Rule 35(b) provides that a court may reduce a sentence of imprisonment on a motion

made within ninety days of sentencing.11 A court may consider a motion for

reduction of sentence made more than ninety days after the imposition of a sentence

in “extraordinary circumstances.”12 We review the Superior Court’s denial of a

motion for modification of sentence under Rule 35(b) for abuse of discretion.13 This

standard is highly deferential.14

9
    11 Del. C. § 8502(4)c.
10
     Helman, 784 A.2d at 1071.
11
     Del. Super. Ct. Cr. R. 35(b).
12
     Id.
13
     Benge v. State, 101 A.3d 973, 976-77 (Del. 2014).
14
     Id. at 977.


                                                 5
          (8)     Huffman argues the Superior Court exhibited bias against him by

denying his motion to modify as untimely filed because the Superior Court amended

Huffman’s sentencing order outside of the time frame of seven days provided for in

Rule 35(c).15 This is an entirely conclusory allegation. “To be disqualified the

alleged bias or prejudice of the judge must stem from an extrajudicial source and

result in an opinion on the merits on some basis other than what the judge learned

from his participation in the case.”16 There is simply no evidence in the record that

the Superior Court harbored any bias or prejudice against Huffman.

          (9)    Huffman’s final two arguments are intertwined and we consider them

together. Huffman posits that the Superior Court improperly treated his motion for

credit for time served as a motion to modify his sentence. Here, any distinction is

one without a difference because Huffman is simply not entitled to credit for time

served while he was free on bail.17 A defendant is entitled to credit for time served




15
  In 2016, the Superior Court amended its sentencing order to reflect the fact that the sentence
was subject to the Truth in Sentencing Act, which it was as a matter of law because the Truth in
Sentencing Act applies to all crimes committed after June 29, 1990. Huffman v. State, 2017 WL
773587, at *1 (Del. Feb. 27, 2017).
16
   Wiggins v. State, 2017 WL 2290943, at *2 (Del. May 22, 2017) (internal quotation marks and
citations omitted).
17
     Barrett v. State, 2015 WL 4510717, at *2 (Del. July 23, 2015).


                                                  6
for any period of actual incarceration.18 By definition, a defendant not in prison is

not serving a period of incarceration.

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

Court is AFFIRMED.

                                              BY THE COURT:


                                              /s/ Karen L. Valihura
                                                     Justice




18
   11 Del. C. § 3901(c); Anderson v. State, 2006 WL 3931460, at *1 (Del. Dec. 5, 2006) (an inmate
is entitled to Level V credit for time served at Level V incarceration or at a Level IV violation of
probation center).


                                                 7
