No. 358, 2001Supreme Court of Delaware
Decided: February 4, 2002
Court Below: Superior Court of the State of Delaware, in and for New Castle County. Cr.A. Nos. IN98-12-0014, IN98-12-0015, VN98-12-0014-01, VN98-12-0015-01.
AFFIRMED AND REMANDED.
Unpublished Opinion is below.
JEFFREY ROSE, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 358, 2001 Supreme Court of the State of Delaware Decided: February 4, 2002
Court Below: Superior Court of the State of Delaware, in and for New Castle County. Cr.A. Nos. IN98-12-0014, IN98-12-0015, VN98-12-0014-01, VN98-12-0015-01.
Before VEASEY, Chief Justice, HOLLAND and BERGER, Justices
ORDER
This 4th day of February 2002, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, Jeffrey Rose, filed an appeal from the July 23, 2001 order of the Superior Court denying his motion for modification/reduction of his sentence pursuant to Superior Court Criminal Rule 35. We find no merit to the appeal. Accordingly, we AFFIRM. However, we REMAND this matter to the Superior Court so that it may rule on Rose’s postconviction motion pursuant to Superior Court Criminal Rule 61.
(2) In this appeal, Rose claims that the Superior Court abused its discretion by denying his Rule 35 motion as time-barred. He contends that his sentence should be reduced due to his demonstrated work ethic and rehabilitation.
(3) In January 1999, Rose pleaded guilty to Possession of a Deadly Weapon by a Person Prohibited and Maintaining a Dwelling for Keeping Controlled Substances. Among other things, Rose was sentenced to a 4-year Level V prison term for the weapon conviction. At a violation of probation hearing in July 2000,[1] the Superior Court re-imposed Rose’s four-year Level V sentence for the weapon conviction. In February 2001, Rose filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61 claiming that his counsel had been ineffective and he had been sentenced for a crime to which he did not plead guilty. In its order dated June 7, 2001, the Superior Court agreed that Rose’s four-year Level V sentence was improper and reduced it to two years.[2] In June and July of 2001, Rose moved to further modify his sentence based on his alleged work ethic and rehabilitation. The Superior Court denied the motions, finding them to be time-bared.[3]
(4) Rose’s claim that the Superior Court abused its discretion by not further reducing his sentence is without merit. The Superior Court correctly determined that Rose’s motions were filed beyond the 90-day period prescribed in Rule 35(b) and, therefore, were time-barred. Even if the motions had been filed within the prescribed time period, they are meritless in any case. A reviewing court will not interfere with a sentencing court’s refusal to modify a sentence, unless it can be demonstrated that the sentence was beyond the maximum authorized by law or resulted from an abuse of discretion on the part of the sentencing judge.[4] Following the Superior Court’s modification of Rose’s sentence on his weapon conviction, there is no such evidence in this case.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED. However, because it appears that the Superior Court never ruled on the ineffective assistance of counsel claim in Rose’s February 2001 motion for postconviction relief, this matter is hereby REMANDED to permit the Superior Court to consider and rule on that claim. Jurisdiction is not retained.[5]