SAMUEL v. STATE, 3 A.3d 1098 (Del. 2010)

No. 275, 2010.Supreme Court of Delaware.Submitted: July 8, 2010.
Decided: August 17, 2010.

Court Below — Superior Court of the State of Delaware in and for New Castle County, Cr. ID No. 93005924DI.

Before HOLLAND, BERGER and JACOBS, Justices.

ORDER
CAROLYN BERGER, Justice.

This 17th day of August 2010, upon consideration of the appellant’s opening brief and the appellee’s motion to affirm it appears to the Court that:

(1) In 1994, the appellant, Harry L. Samuel, was convicted of several counts of assault and related weapons offenses. On direct appeal, this Court merged two sets of assault convictions and remanded the case for resentencing.[1] On appeal from the sentence imposed after remand, the Court affirmed.[2]
(2) In the last several years, Samuel has unsuccessfully sought state postconviction relief and federal habeas relief.[3] Most recently, Samuel has sought a reduction in his sentence. By order dated September 18, 2009, the Superior Court denied Samuel’s motion for reduction of sentence as untimely, without “extraordinary circumstances,” and because the sentence imposed was appropriate.[4] On appeal, this Court affirmed the Superior Court’s decision.[5]
(3) This appeal arises from another motion for reduction of sentence filed by Samuel on April 26, 2010. By order dated April 29, 2010, the Superior Court denied the motion as untimely, repetitive, without extraordinary circumstances, and because the sentence imposed was appropriate. On May 7, 2010, Samuel filed a “rehearing/reconsideration motion” (“motion for reconsideration”) asking the Superior Court to reconsider the April 29, 2010 order. By order dated May 25, 2010, the Superior Court denied Samuel’s motion for reconsideration on the basis that “[n]one of the reasons given by defendant justify modification.”
(4) On June 7, 2010, Samuel filed an appeal from the April 29, 2010 order denying his motion for reduction of sentence and the May 25, 2010 order denying his motion for reconsideration. On appeal, the State contends that the Court has no jurisdiction to consider the April 29, 2010 order and should affirm the May 25, 2010 order. The State’s position is well-taken.
(5) A timely-filed motion for reargument is “the proper device for seeking reconsideration” of a trial court’s findings of fact and conclusions of law.[6]
In the Superior Court, a motion for reargument must be filed within five days[7] of the filing of the order that is sought to be reargued.[8] If a motion for reargument is untimely filed, the motion cannot be considered by the Superior Court.[9] Also, an untimely motion for reargument does not toll the time for filing an appeal.[10]
(6) In this case, it appears to the Court that Samuel’s motion for reconsideration was more than five days after the filing of the order denying his motion for reduction of sentence. Therefore, the motion should not have been considered by the Superior Court. Also, because the untimely motion for reconsideration did not toll the time for taking an appeal from the order denying the motion for reduction of sentence, Samuel’s appeal filed on June 7, 2010 is untimely.
(7) Samuel’s untimely appeal leaves this Court without jurisdiction to consider the April 29, 2010 denial of the motion for reduction of sentence. Also, because the motion for reconsideration was untimely filed, we must affirm its denial, albeit for reasons different than those relied upon by the Superior Court in its order of May 25, 2010.[11]
(8) Finally, even if the Court were to consider the merits of Samuel’s motion for reduction of sentence and motion for reconsideration as the Superior Court did, we would conclude that the motions are without merit. First, Samuel contends that he was unable to timely file a motion for reduction of sentence, i.e., within ninety days of sentencing, because of “medical, ineffective assistance of counsel, inadequate law library, [and] denied legal property while in MSU.” Nonetheless, coming nearly fourteen years after his sentencing, neither the motion for reduction of sentence nor the motion for reconsideration demonstrate exceptional circumstances that would justify consideration of Samuel’s untimely motion.
(9) Second, this Court will not interfere with the Superior Court’s refusal to modify a sentence unless it can be demonstrated that the sentence exceeded the maximum authorized by statute[12] or resulted from an abuse of discretion.[13] In this case, Samuel did not argue that the sentence exceeded the statutory authorization and has not demonstrated that the sentence imposed resulted from an abuse of discretion.[14]

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