No. 476, 2001Supreme Court of Delaware.
Decided: December 12, 2001
Superior Court Sussex County. Cr.A. No. PS99-10-0255. Def. ID No. 9910007159.
Affirmed
Unpublished Opinion is below.
MARTIN H. SMITH, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 476, 2001 Supreme Court of the State of Delaware. Decided: December 12, 2001
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
ORDER
This 12th day of November 2001, upon consideration of the appellant’s opening brief and the State of Delaware’s motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The appellant, Martin H. Smith, filed an appeal from an order of the Superior Court denying his third motion for modification of sentence.
We find no merit to the appeal. Accordingly, we AFFIRM.
(2) On June 22, 2000, Smith pleaded guilty, pursuant to Superior Court Criminal Rule 11(e)(1)(c), to the following Class A misdemeanors: (i) Possession of Cocaine; (ii) Possession of Drug Paraphernalia; and (iii) Resisting Arrest. Smith also pleaded guilty to Conspiracy in the Second Degree, which is a Class G Felony. Smith was immediately sentenced, in accordance with the plea agreement, to a total of seven years at Level V. For the misdemeanor convictions, Smith was sentenced to three years at Level V for Possession of Cocaine,[1] one year at Level V for Possession of Drug Paraphernalia, and one year at Level V for Resisting Arrest. The plea agreement specifically provided that the entire sentence was mandatory at Level V pursuant to 11 Del. C. § 4204(k).[2]
(3) Smith did not file a direct appeal from his conviction and sentence. He did, however, file two motions for postconviction relief, which the Superior Court denied in October and December 2000. Smith also filed two motions for modification of sentence, which the Superior Court denied in August and October 2000.
(4) On August 21, 2001, Smith filed his third motion for modification of sentence. Smith requested that the Superior Court remove the 4204(k) provision from that part of his June 2000 sentence that was imposed for Smith’s misdemeanor convictions. By order dated September 7, 2001, the Superior Court denied Smith’s motion. This appeal followed.
(5) It is manifest on the face of Smith’s opening brief that this appeal is without merit. As a procedural matter, Smith’s motion for modification of sentence was untimely. Smith submitted the motion to the Superior Court well after the 90 day time limit, and Smith has not shown “extraordinary circumstances” to overcome the time bar.[3] Moreover, the Superior Court’s imposition of a total of five years in prison pursuant to 4204(k) for Smith’s misdemeanor convictions is consistent with the parties’ plea agreement, to which Smith is bound,[4] and with the law. Smith may not now revise his plea agreement simply because he would prefer that a portion of the sentence not be subject to 4204(k).
NOW, THEREFORE IT IS ORDERED that the State’s motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.