KETCHUM v. STATE, 801 A.2d 10 (Del. 2002)

No. 631, 2001Supreme Court of Delaware.Submitted: May 2, 2002
Decided: June 10, 2002

Court Below: Superior Court of the State of Delaware, in and for New Castle County Cr. ID. No. 86011157DI.

Affirmed.

Unpublished opinion is below.

KEVIN KETCHUM, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 631, 2001 In the Supreme Court of the State of Delaware. Submitted: May 2, 2002 Decided: June 10, 2002
Before HOLLAND, BERGER, and STEELE, Justices.

CAROLYN BERGER, Justice.

ORDER
This 10th day of June 2002, upon consideration of the appellant’s opening brief and the State’s motion to affirm, it appears to the Court that:

(1) The defendant-appellant, Kevin Ketchum, filed this appeal from the Superior Court’s order denying his motion for modification of sentence. The State has filed a motion to affirm on the ground that it is manifest on the face of Ketchum’s opening brief that the appeal is without merit. We agree and affirm.

(2) The record reflects that Ketchum was convicted in 1988 of second degree rape, second degree conspiracy, and first degree robbery. In June 2001,

Ketchum filed two separate motions seeking modification or reduction of his sentence. The Superior Court denied both motions on the grounds that they were barred by the ninety day limitations period of Superior Court Criminal Rule 35(b),[1] and Ketchum had not established extraordinary circumstances in order to overcome the time bar. Ketchum did not appeal those rulings. Instead, he filed another motion for modification of sentence, which the Superior Court denied in November 2001. The Superior Court instructed Ketchum to seek the Department of Correction’s recommendation for a modification of sentence pursuant to DEL.

CODE ANN. tit. 11, § 4217.2 This appeal ensued.

(3) The essence of Ketchum’s sentence modification request is that, while incarcerated, he has availed himself of numerous educational and treatment programs, including completion of the Key Program, and that the Superior Court’s original sentence consisted solely of Level V incarceration and did not provide for any decreasing levels of supervision to aid Ketchum’s transition to society.

Ketchum asserts that these facts establish “extraordinary circumstances” to warrant a sentence modification under Superior Court Criminal Rule 35(b).

(4) We have reviewed the record and the parties’ respective contentions carefully. We find no abuse of discretion in the Superior Court’s denial of Ketchum’s repetitive motion. The record reflects that the Superior Court, in June 2001, had denied Ketchum’s request for modification on the ground that he had not established extraordinary circumstances to overcome the ninety day limitations period of Rule 35(b). The only other exception to the time limitation of Rule 35(b) is the procedure set forth DEL. CODE ANN. tit. 11 Del. C. § 4217. Accordingly, when Ketchum filed his repetitive motion for modification, it was appropriate for the Superior Court to deny Ketchum’s request and to direct him to seek modification through the procedures of DEL. CODE ANN. tit. 11 Del. C. § 4217.

(5) Furthermore, we find no abuse of discretion in the Superior Court’s denial of Ketchum’s transcript request. There was no hearing held on Ketchum’s motion for modification. Accordingly, there was no transcript that could be prepared that was relevant to the issues on appeal

NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.