IN THE SUPREME COURT OF THE STATE OF DELAWARE
LEROY SHELLEY, §
§
Defendant Below- § No. 136, 2017
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID 9804001318 (N)
Plaintiff Below- §
Appellee. §
Submitted: May 8, 2017
Decided: June 21, 2017
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
This 21st day of June 2017, upon consideration of the appellant’s opening
brief, the State’s motion to affirm, and the record below, it appears to the Court
that:
(1) The appellant, Leroy Shelley, filed this appeal from a Superior Court
order dated March 7, 2017, denying his motion for modification of sentence. The
State has filed a motion to affirm the judgment below on the ground that it is
manifest on the face of Shelley’s opening brief that his appeal is without merit.
We agree and affirm.
(2) A Superior Court jury convicted Shelley in November 2007 of
multiple criminal offenses, including first degree robbery and kidnapping.1 The
Superior Court sentenced him to a total period of twenty-four and a half years at
Level V incarceration, to be suspended after serving eighteen and a half years in
prison for decreasing levels of supervision. Shelley did not appeal.
(3) Since that time, he has filed several unsuccessful motions for
postconviction relief. In February 2017, Shelley filed a motion for modification of
his sentence, arguing that he was illegally sentenced as a habitual offender in
Pennsylvania, that his Delaware sentence should run concurrently with the
sentence he already served in Pennsylvania, that he should receive thirteen months
credit for time served and good time credit, and that he has been rehabilitated. The
Superior Court denied Shelley’s motion because it was untimely under Rule 35(b)
and because his motion stated insufficient grounds for a modification of sentence.
Shelley appealed.
(4) In his opening brief on appeal, Shelley’s only argument for review is
whether the Superior Court erred in failing to credit him with thirty-five days that
he served from December 2, 2016 to January 6, 2017, while he was awaiting
extradition from Pennsylvania back to Delaware. However, Shelley did not raise
this claim in the motion he filed in the Superior Court. We will not consider it for
1
Shelley had been indicted for his crimes in Delaware in 1998, but he was extradited back to
Pennsylvania to finish serving a sentence there. The State reindicted Shelley in 2007.
2
the first time on appeal.2 Moreover, having failed to brief the arguments that he
raised below, Shelly has waived any right to further review of those claims. 3
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
2
Del. Supr. Ct. R. 8.
3
Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).
3