Szulborski v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
ERIC K. SZULBORSKI, §
§ No. 116, 2016
Defendant Below- §
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID 0903021499
Plaintiff Below- §
Appellee. §
Submitted: August 24, 2016
Decided: October 21, 2016
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
ORDER
This 21st day of October 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, Eric Szulborski, filed this appeal from a Superior
Court order denying his third motion for modification of sentence. The State
filed a motion to affirm the judgment below on the ground that it is manifest
on the face of Szulborski’s opening brief that his appeal is without merit.
We agree and affirm.
(2) The State indicted Szulborski in August 2009 for 151 criminal
offenses. In December 2009, Szulborski and the State entered into a plea
agreement. Szulborski pled guilty to three counts of Burglary in the Second
Degree and one count of Conspiracy in the Second Degree. The remaining
charges were dismissed. The Superior Court immediately sentenced
Szulborski to a total period of sixteen years at Level V incarceration to be
suspended after serving ten years in prison for decreasing levels of
supervision. The first nine years of Szulborski’s ten-year sentence is a
minimum mandatory term of incarceration. Szulborski did not appeal.
Instead, he filed a motion for modification of sentence in March 2010, which
the Superior Court denied. Szulborski filed another motion for modification
of sentence in April 2013, which the Superior Court again denied.
Szulborski did not appeal either of those judgments.
(3) In February 2016, Szulborski filed his third for modification of
his sentence. Szulborski’s grounds for a sentence reduction or modification
were based upon his accomplishments while in prison1 and a detainer lodged
against him by the State of Maryland, where he still has to serve a ten-year
sentence. His motion asked the Superior Court to: (i) terminate or reduce
the last, non-mandatory year of his ten-year prison sentence; (ii) terminate
the TASC monitoring portion of his sentence; and (iv) terminate or reduce
the Level IV portion of his sentence. The Superior Court denied his motion
1
Specifically, Szulborski stated that he completed his GED and the Greentree Program
and that has been employed throughout his incarceration.
2
under Superior Court Criminal Rule 35(b) because it was repetitive and
because his sentence was appropriate and Szulborski had not provided any
additional information to warrant a modification of sentence. This appeal
followed.
(4) On appeal, Szulborski asserts two arguments that were not
raised in the motion he filed in the Superior Court. First, he contends that
the Superior Court violated the covenant of good faith and fair dealing when
it denied his motion for modification of sentence because the judge told him
at his sentencing in 2009 that the Superior Court would consider a sentence
modification if Szulborksi completed a treatment program and got his GED
while incarcerated. Second, Szulborski contends that the Superior Court
violated his equal protection rights in denying his sentence modification
based on his achievements while incarcerated because the Superior Court
recently granted a similar motion filed by a female inmate. Finally, he
contends that the Superior Court erred in denying his request for a copy of
the transcripts of his guilty plea and sentencing at State expense.
(5) After careful consideration, we conclude that Szulborski’s
assertions provide no basis for this Court to reverse the Superior Court’s
denial of his motion for modification of sentence. Superior Court Criminal
Rule 35(b) provides that the Superior Court will not consider repetitive
3
requests for sentence modification.2 This was Szulborski’s third motion for
modification of sentence. To the extent Szulborski now asserts an equal
protection claim, he did not raise that argument to the Superior Court in the
first instance. This Court will not consider it for the first time on appeal.3
Under the circumstances, we find no abuse of the Superior Court’s
discretion in denying Szulborski’s repetitive motion for modification of
sentence. Moreover, Szulborksi was not entitled to a free copy of transcripts
in order to pursue his collateral motion.4 Given the repetitive nature of the
motion for modification of sentence, we find no abuse of the Superior
Court’s discretion in denying his motion for transcripts at State expense.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
2
Id.
3
Del. Supr. Ct. R. 8 (2016).
4
Miller v. State, 2008 WL 623236, at *2 (Del. Mar.7, 2008) (citing United States v.
MacCollom, 426 U.S. 317, 325–26, 96 S. Ct. 2086, 48 L. Ed. 2d 666 (1976)).
4