Opinion
No. 451, 2000, Def. ID No. 9809020033.
Submitted: December 19, 2000.
Decided: January 19, 2001.
Court Below: Superior Court of the State of Delaware, in and for Sussex County, Cr.A. Nos. S99-05-0001-0005.
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
ORDER
This 19th day of January 2001, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The appellant, Lawrence P. Whalen, filed this appeal from an order of the Superior Court denying his motion for reduction or modification of sentence pursuant to Superior Court Criminal Rule 35 ("Rule 35"). The State of Delaware has moved to affirm the judgment of the Superior Court on the basis that it is manifest on the face of Whalen's opening brief that the appeal is without merit.
We agree and AFFIRM.
(2) In November 1995, Whalen entered a Robinson Plea to one count of Second Degree Unlawful Sexual Intercourse. Whalen was sentenced, pursuant to Superior Court Criminal Rule 11(e)(1)(c) ("Rule 11(e)(1)(c)"), to 15 years at Level V suspended after ten years for one year at Level III and four years at Level II probation. Special conditions of probationary supervision were imposed.
State v. Whalen, Del. Super., Cr.A. No. S95-07-0093, Lee, J. (Nov. 15, 1995).
Whalen did not file an appeal from that sentence.
(3) Additional charges were filed against Whalen in 1998 and 1999.
Ultimately, in May 1999, Whalen entered a plea of nolo contendere to five counts of Third Degree Unlawful Sexual Contact. Whalen was sentenced, pursuant to Rule 11(e)(1)(c), to five years at Level V suspended after one year for four years at Level III. Pursuant to the plea agreement, Whalen agreed to special conditions of probation, i.e., that he (i) have no contact with the victim; (ii) have no unsupervised contact with any minor under the age of 18; (iii) participate in counseling, and (iv) be classified as a Tier III sex offender. Whalen did not file an appeal from that sentence.
State v. Whalen, Del. Super., Cr.A. No. S99-05-0001, Stokes, J. (May 7, 1999).
(4) In August 1999, Whalen filed a motion under Rule 35(b) for a reduction or modification of the 1999 sentence. Whalen contended (i) that he should not be required to participate in counseling; (ii) that the prohibition against unsupervised contact with minors violated his constitutional rights; (iii) that the sentence impermissibly exceeded Truth-in-Sentence guidelines; and (iv) that his classification as a Tier III sex offender was an illegal ex post facto increase of criminal punishment. By order dated August 11, 1999, the Superior Court denied Whalen's motion, and Whalen appealed.
(5) By Order dated May 18, 2000, this Court affirmed the Superior Court's denial of Whalen's motion for a reduction or modification of sentence.
Whalen v. State, Del. Supr., No. 408, 1999, Holland, J., 2000 WL 1504946 (May 18, 2000) (ORDER).
The Court, however, remanded the case to the Superior Court to clarify (i) whether the probation ordered in the 1999 case was to be served consecutively or concurrently with the probation ordered in the 1995 case; and (ii) when the special conditions of probation were to take effect.
(6) On June 2, 2000, the Superior Court held a hearing pursuant to this Court's order of remand. On June 16, 2000, the Superior Court issued a modified sentencing order providing (i) that the probation ordered in the 1999 case should be served concurrently with the probation ordered in the 1995 case; and (ii) that the special conditions of probation are to start immediately upon Whalen's release from Level V. Whalen attempted to file an appeal from the Superior Court June 16 sentence modification order; however, the appeal was dismissed as untimely filed.
Whalen v. State, Del. Supr., No. 346, 2000, Holland, J., 2000 WL 1504946 (Aug. 30, 2000) (ORDER).
(7) On August 25, 2000, Whalen again filed a motion for reduction or modification of sentence pursuant to Rule 35. Whalen challenged various aspects of the 1999 plea agreement and sentence. Whalen also questioned whether his anticipated conditional release pursuant to his 1995 sentence will interfere with the June 16 provision that the special conditions of probation will start immediately upon his release from Level V. By letter order dated August 31, 2000, the Superior Court denied as repetitive Whalen's motion for reduction or modification of sentence. This appeal followed.
(8) On appeal, Whalen reiterates the claims that he raised in his Superior Court motion, and he raises the following new claims: (i) that he was denied the right to counsel when his prior appeal was on remand; (ii) that the 1998 and 1999 charges brought against him violated double jeopardy principles; and (iii) that the Superior Court's alleged failure to send to him a copy of the June 16 sentence modification order caused him to file an untimely motion for reargument.
(9) This Court will not consider Whalen's new claims, as they were not presented to the Superior Court in his motion for reduction or modification of sentence. Generally, claims not fairly presented in the trial court are not considered by this Court for the first time on appeal.
Supr. Ct. R. 8.
(10) We find that the Superior Court acted within its discretion when it denied as repetitive Whalen's motion for reduction or modification of sentence.
The issues raised in the motion were either raised, or could have been raised, in Whalen's August 1999 motion for reduction or modification of sentence.
Furthermore, Whalen's motion was filed well beyond the prescribed 90-day period. Whalen has not shown "extraordinary circumstances" sufficient to overcome the time bar.
See Rule 35(b) (providing in part that the court will not consider repetitive requests for reduction of sentence and will consider an application made more than 90 days after the imposition of sentence only in extraordinary circumstances).
(11) We have reviewed the record carefully in this case and conclude that, on the face of Whalen's opening brief, the appeal is without merit. The Superior Court did not abuse its discretion in denying Whalen's motion for reduction or modification of sentence.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Joseph T. Walsh Justice