JOHNSON v. STATE, 737 A.2d 530 (Del. 1999)

Johnson v. State.

No. 146, 1999.Supreme Court of Delaware.
August 16, 1999.

Appeal from the Superior Court, New Castle County, CrA IN90-06-0869, IN90-06-0870.

AFFIRMED

Unpublished Opinion is below.

MICHAEL D. JOHNSON, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 146, 1999. Supreme Court of Delaware. Submitted: July 27, 1999. Decided: August 16, 1999.

Court Below: Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. IN90-06-0869, IN90-06-0870.

ORDER
Before VEASEY, Chief Justice, WALSH, and HARTNETT, Justices.

This 16th day of August 1999, upon consideration of the briefs on appeal and the record below, it appears to the Court that:

(1) The defendant-appellant, Michael D. Johnson (“Johnson”), filed this appeal from an order of the Superior Court summarily denying his motion to reduce his sentence pursuant to Superior Court Criminal Rule 35(b) (“Rule 35(b)”).[1] We find no merit to the appeal. Accordingly, we affirm.

(2) Johnson was convicted by a Superior Court jury of Possession of Cocaine, Trafficking in Cocaine, and Possession of Cocaine with Intent to Deliver. The Superior Court later granted Johnson’s motion for a judgment of acquittal on the charge of Possession of Cocaine. Johnson was sentenced to a total period of incarceration of twelve years on the remaining charges. He also was assessed fines and surcharges in the amount of $73,313.40. On direct appeal, this Court affirmed the judgment below.[2]

(3) Under Rule 35(b), the Superior Court may consider a motion to reduce a sentence of imprisonment only if such motion is made within 90 days after the sentence is imposed or upon a showing of “extraordinary circumstances.”[3] There is no question that Johnson’s motion to reduce his sentence was made well beyond the prescribed 90-day period.[4] Johnson, therefore, must show “extraordinary circumstances” sufficient to overcome the time bar.

(4) Johnson contends that the following constitute such “extraordinary circumstances”: 1) he has been totally disabled since 1984, which would prevent him from ever paying off the fines and surcharges assessed against him and would place him under the control of the Department of Corrections essentially for the rest of his life; 2) he successfully completed two drug rehabilitation programs since being incarcerated; 3) he has two young children living in other states to which he would not be free to move without the permission of the Department of Corrections; and 4) he was a police officer and a correctional officer before becoming disabled.

(5) The Superior Court did not abuse its discretion in denying Johnson’s motion to reduce his sentence as none of the circumstances recited in Johnson’s motion rises to the level of an “extraordinary circumstance” justifying relief.

(6) A review of the record in this case also reveals that Johnson has filed numerous motions in the Superior Court and in this Court since 1992 requesting that his sentence be reduced. The Superior Court may not consider repetitive requests for reduction of sentence.[5] Johnson’s appeal must be denied on that basis as well.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.

BY THE COURT:

Maurice A. Hartnett, III Justice

[1] In his motion below, Johnson relied upon 11 Del. C. § 4217 as the basis for his contention that his sentence should be reduced. The Superior Court treated the motion as one governed by the “extraordinary circumstances” requirement of Superior Court Criminal Rule 35(b). 11 Del. C. § 4217 refers solely to applications by the Department of Corrections for modifications of sentences and there is nothing in the record to indicate that that process was ever invoked in this case. In his reply brief, Johnson acknowledges that this matter is governed by the “extraordinary circumstances” requirement.

[2] Johnson v. State, Del. Supr., No. 286, 1991, Holland, J., 1992 WL 151362 (June 5, 1992) (ORDER).

[3] Super. Ct. Crim. R. 35(b).

[4] Johnson contends that the May 9, 1991 ruling of the Superior Court which denied his request to replace his trial counsel explains why several earlier motions to reduce sentence filed between 1992 and 1997 were untimely, thereby creating an “extraordinary circumstance.” This issue was not presented to the Superior Court in the first instance and, therefore, cannot be considered on this appeal. Supr. Ct. R. 8. Even if this argument had been presented to the Court below, it would be unavailing here. This Court consistently has held that “[t]here is no constitutional or statutory right to counsel in connection with proceedings such as petitions for reduction of sentence. . . .” Duffy v. State, Del. Supr., No. 302, 1998, Veasey, C.J., 1998 WL 985332 (Nov. 12, 1998) (ORDER). Therefore, no “extraordinary circumstance” would be created as a result.

[5] Super. Ct. Crim. R. 35(b).