Dickerson v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DAVID H. DICKERSON, §
§
Defendant Below- § No. 109, 2016
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID 0811010588
Plaintiff Below- §
Appellee. §
Submitted: May 16, 2016
Decided: July 7, 2016
Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
ORDER
This 7th day of July 2016, upon consideration of the appellant’s opening
brief, the State’s motion to affirm, and the record below, it appears to the Court
that:
(1) The appellant, David Dickerson, filed this appeal from a Superior
Court order denying his ninth 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 Dickerson’s opening brief that his appeal is without merit. We agree and
affirm.
(2) A Superior Court jury convicted Dickerson in June 2009 of five
criminal offenses, including Burglary in the Third Degree and Attempted Burglary
in the Third Degree. The Superior Court sentenced him to a total period of eleven
years at Level V incarceration, to be suspended after serving nine months in prison
for one year of Level III probation. Dickerson did not appeal. In July 2010, while
at a work release center, Dickerson left the center on a pass and failed to return.
He was arrested in New York in November 2010 and extradited to Delaware. He
pled guilty to Escape in the Third Degree. Thereafter, in December 2010, the
Superior Court found that Dickerson committed a violation of his probation and
sentenced him to a total period of ten years at Level V incarceration. Dickerson
filed an appeal, but later withdrew it voluntarily.
(3) Since that time, he has filed nine unsuccessful motions seeking
correction or modification of his VOP sentence. In February 2016, Dickerson filed
a motion requesting review of his sentence under House Bill 312, which was
enacted in July 2014 and allows the Superior Court to impose sentences either
concurrently or consecutively.
(4) On appeal, Dickerson argues that the passage of H.B. 312, combined
with his numerous accomplishments while in prison, constitutes “extraordinary
circumstances” under Superior Court Criminal Rule 35(b). He argues that the
Superior Court abused its discretion in denying his motion.
(5) Dickerson’s assertions, however, provide no basis for this Court to
reverse the Superior Court’s denial of his motion for modification of sentence.
2
Under Superior Court Criminal 35(b), a motion for reduction of sentence must be
filed within 90 days of sentencing unless the defendant can establish extraordinary
circumstances.1 Rule 35(b) also provides that the Superior Court will not consider
repetitive requests for sentence modification.2 This was Dickerson’s ninth motion
for modification of sentence, and it was filed more than 90 days after he was
originally sentenced. To the extent Dickerson relies upon H.B. 312 to establish
extraordinary circumstances, this Court recently held that the amended statute only
applies prospectively and not retroactively.3 Moreover, good behavior in prison
does not constitute extraordinary circumstances.4 Accordingly, we find no abuse
of the Superior Court’s discretion in denying Dickerson’s untimely and repetitive
motion for modification of sentence.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
1
Del. Super. Ct. Crim. R. 35(b) (2016).
2
Id.
3
Fountain v. State, __ A.3d __, 2016 WL 2927750 (Del. May 16, 2016)
4
State v. Diaz, 2015 WL 1741768, at *2 n.9 (Del. Apr. 15, 2015).
3