Everett v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DANIEL P. EVERETT, §
§ No. 208, 2020
Defendant Below, §
Appellant, §
§
v. § Court Below – Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID No. 1008009291 (S)
Plaintiff Below, §
Appellee. §
Submitted: July 20, 2020
Decided: September 25, 2020
Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES,
Justices.
ORDER
After careful consideration of the appellant’s opening brief, the State’s motion
to affirm, and the record below, it appears to the Court that:
(1) Daniel Everett appeals the Superior Court’s June 11, 2020 order
denying his motion for sentence modification under Superior Court Criminal Rule
35(b) (“Rule 35(b)”). The State has filed a motion to affirm the judgment below on
the ground that it is manifest on the face of Everett’s opening brief that his appeal is
without merit. We agree and affirm.
(2) The record reflects that Everett pled guilty in February 2011 to one
count of second degree burglary and two counts of theft of a firearm. The Superior
Court immediately sentenced Everett to an aggregate of fourteen years of Level V
incarceration, suspended after one year for two years of Level III probation. Everett
did not appeal his convictions or sentence.
(3) In May 2014, Everett’s probation officer filed a violation of probation
(“VOP”) report with the Superior Court. The report alleged that Everett had violated
the terms of his probation by failing to report to probation, traveling out-of-state
without permission, and admitting to drug use. The Superior Court held a VOP
hearing on June 18, 2014, during which the State advised the court that Everett had
incurred more than 80 new criminal charges after the VOP report had been filed.
Everett acknowledged to the court that he had, in fact, been charged with additional
criminal activity in Delaware after he absconded from probation. The Superior
Court found that Everett had violated the terms of his probation and sentenced him
as follows: for second degree burglary, to six years and eleven months, with no
probation to follow; and for the two charges of theft of a firearm, to an aggregate of
six years suspended after successful completion of the Key Program for decreasing
levels of supervision. Everett did not appeal.
(4) Between 2014 and 2019, Everett filed three motions for sentence
reduction or modification, all of which the Superior Court denied. On June 4, 2020,
Everett filed a fourth motion for sentence modification. In his motion, Everett
argued that his vocational, behavioral, and educational accomplishments earned
2
while incarcerated justified the modification of his sentence. On June 11, 2020, the
Superior Court denied Everett’s motion finding that Everett’s sentence remained
appropriate for all the reasons stated at sentencing and that no additional information
had been provided to the court to warrant a reduction or modification of the sentence.
This appeal followed.
(5) We review the Superior Court’s denial of a Rule 35(b) motion for abuse
of discretion.1 Rule 35(b) provides that a motion for sentence modification filed
after ninety days will only be considered in extraordinary circumstances or under 11
Del. C. § 4217.2 “In order to uphold the finality of judgments, a heavy burden is
placed on the defendant to prove extraordinary circumstances when a Rule 35
motion is filed outside of ninety days of imposition of a sentence.”3
(6) On appeal, Everett argues that (i) his rehabilitation efforts justify the
modification of his sentence and (ii) his counsel at the June 18, 2014 VOP hearing
was ineffective for failing to know of—or object to evidence of—Everett’s new
criminal charges. Everett’s arguments are unavailing.
1
Benge v. State, 101 A.3d 973, 976-77 (Del. 2014).
2
Super. Ct. Crim. R. 35(b).
3
State v. Culp, 152 A.3d 141, 145 (Del. 2016) (internal quotation marks and citations
omitted).
3
(7) As a preliminary matter, because Everett did not raise his claim of
ineffective assistance of counsel below, we will not entertain it on appeal.4
Moreover, we cannot conclude that the Superior Court abused its discretion in
denying Everett’s untimely and repetitive motion for sentence modification under
the circumstances presented here.
NOW, THEREFORE, IT IS HEREBY ORDERED that the motion to affirm
is GRANTED and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Tamika R. Montgomery-Reeves
Justice
4
Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented
for review; provided, however, that when the interests of justice so require, the Court may
consider and determine any question not so presented.”); Delaware Elec. Coop., Inc. v.
Duphily, 703 A.2d 1202, 1206 (Del. 1997) (“It is a basic tenant of appellate practice that
an appellate court reviews only matters considered in the first instance by a trial court.”).
4