IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOHN H. SCHMIDT, JR., §
§
Defendant Below, § No. 596, 2015
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware,
§
STATE OF DELAWARE, § Cr. ID No. 0111005916
§
Plaintiff Below, §
Appellee. §
Submitted: March 18, 2016
Decided: April 15, 2016
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
ORDER
This 15th day of April 2016, upon consideration of the appellant’s opening
brief, the appellee’s motion to affirm, and the record below, it appears to the Court
that:
(1) The appellant, John H. Schmidt, Jr., filed this appeal from a Superior
Court order denying his motion for modification of sentence. The State of
Delaware has filed a motion to affirm the judgment below on the ground that it is
manifest on the face of Schmidt’s opening brief that his appeal is without merit.
We agree and affirm.
(2) The record reflects that Schmidt pled guilty to six counts of Robbery
in the First Degree and one count of Robbery in the Second Degree in 2002.
Schmidt was sentenced to thirty-one years of Level V incarceration, suspended
after twenty years for deceasing levels of supervision. Schmidt did not appeal the
Superior Court’s judgment.
(3) On September 3, 2015, Schmidt filed a motion for modification of
sentence under Superior Court Criminal Rule 35(b). Based upon his unsuccessful
efforts to obtain commutation of his sentence from the Board of Pardons and to
have the Department of Correction file an application for sentence reduction under
11 Del. C. § 4217 as well as his exemplary conduct and rehabilitation efforts in
prison, Schmidt argued that there were extraordinary circumstances supporting
modification of his sentence. The Superior Court denied Schmidt’s motion in an
order dated October 6, 2015. The Superior Court found that the sentence was
imposed pursuant to a plea agreement and appropriate for all of the reasons stated
at the time of sentencing, the motion was filed more than ninety days after
imposition of the sentence, and exemplary conduct and successful rehabilitation
efforts did not constitute extraordinary circumstances under Rule 35(b). This
appeal followed.
(4) We review the Superior Court’s denial of a motion for modification of
sentence for abuse of discretion.1 To the extent the claim involves a question of
1
Weber v. State, 2015 WL 2329160, at *1 (Del. May 12, 2015).
2
law, we review the claim de novo.2 Superior Court Criminal Rule 35(b) provides
that a motion for reduction of sentence that is not filed within ninety days of
sentencing (such as Schmidt’s motion) will only be considered in extraordinary
circumstances or pursuant to 11 Del. C. § 4217. Under Section 4217, the Superior
Court may modify a sentence if the Department of Correction files an application
for good cause shown (which includes rehabilitation of the offender) and certifies
that the offender does not constitute a substantial risk to the community or himself.
(5) In his opening brief, Schmidt does not identify any error by the
Superior Court, but instead claims, for the first time, that the Department of
Correction violated his liberty interest under the Fourteenth Amendment by
denying his request for an application under Section 4217 based upon
inappropriate criteria (his criminal history and the nature of his offenses). Schmidt
asks this Court to order the Department of Correction to file an application under
Section 4217. As the State points out, Schmidt essentially seeks a writ of
mandamus. Schmidt did not seek this relief below and, in any event, this Court
lacks jurisdiction to issue a writ of mandamus to the Department of Correction.3
2
Id.
3
In re Anderson, 2015 WL 5275853, at *1 (Del. Sept. 9, 2015). We also note that “[i]t is within
the discretion of the Department of Correction to apply for modification of an inmate’s sentence
under Section 4217.” King v. State, 2015 WL 317128, at *2 (Del. Jan 23, 2015) (affirming
Superior Court’s denial of petition for writ of mandamus where movant did not show
Department of Correction had duty to declare him to eligible for sentence modification under
Section 4217 or submit a Section 4217 application).
3
Having carefully considered the parties’ positions on appeal and the record below,
we conclude that the Superior Court did not err in denying Schmidt’s motion for
modification of sentence.4
NOW, THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
4
See, e.g., Morgan v. State, 2012 WL 3115539, at *1 (Del. July 31, 2012) (affirming Superior
Court’s denial of motion for sentence modification and recognizing it is well-settled that
rehabilitation efforts do not constitute extraordinary circumstances).
4