IN THE SUPREME COURT OF THE STATE OF DELAWARE
JULIAN BODNARI, §
§ No. 127, 2019
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID. No. 9909027880 (S)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: July 1, 2019
Decided: August 20, 2019
Before VALIHURA, VAUGHN, and SEITZ, Justices.
ORDER
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, Julian Bodnari, filed this appeal from the Superior
Court’s denial of his motion for sentence reduction or modification. The State has
moved to affirm the judgment below on the ground that it is manifest on the face of
Bodnari’s opening brief that his appeal is without merit. We agree and affirm.
(2) Bodnari was convicted of Trafficking in Cocaine, Possession with
Intent to Deliver Cocaine, Possession of a Firearm During the Commission of a
Felony, and other offenses. He was sentenced in 2003 to an aggregate of thirty-three
years in prison. On direct appeal, this Court affirmed Bodnari’s convictions and
sentence,1 and in 2006 the Court affirmed the Superior Court’s denial of Bodnari’s
motion for postconviction relief.2 Since then, Bodnari has filed several motions in
the Superior Court seeking resentencing or reduction or modification of his sentence,
each of which has been denied.3
(3) On February 8, 2019, Bodnari filed another motion for reduction of
sentence. He argued that extraordinary circumstances warranted consideration of
his motion more than ninety days after sentencing4 because (i) the State prevented
Bodnari from obtaining favorable recommendations from the Board of Parole and
Board of Pardons in 2011 and 2015, and from obtaining a Department of Correction
recommendation under 11 Del. C. § 4217,5 by submitting false information that
Bodnari was involved in organized crime in Pennsylvania and Eastern Europe, (ii)
since the time of Bodnari’s sentencing, the General Assembly has amended the
criminal code to reduce the minimum mandatory sentences for the offenses of which
Bodnari was convicted, and (iii) Bodnari has demonstrated his rehabilitation through
1
Bodnari v. State, 2003 WL 22880372 (Del. Dec. 3, 2003).
2
Bodnari v. State, 2006 WL 155237 (Del. Jan. 18, 2006).
3
See State v. Bodnari, Cr. ID No. 9909027880 (S) (Del. Super. Ct.), Docket Entry Nos. 152-54,
158-59, 161-62, 170, 172. See also Bodnari v. State, 2016 WL 4091232 (Del. July 18, 2016)
(affirming denial of “motion for resentencing under House Bill 312”).
4
See SUPER. CT. CRIM. R. 35(b) (providing that the Superior Court will consider a motion for
reduction of sentence filed more than ninety days after sentencing only in “extraordinary
circumstances”).
5
11 Del. C. § 4217 establishes a procedure by which the Superior Court may modify a sentence
“solely on the basis of an application filed by the Department of Correction for good cause shown
which certifies that the release of the defendant shall not constitute a substantial risk to the
community or the defendant’s own self.”
2
completion of numerous programs and receipt of positive recommendations from
prison personnel.
(4) The Superior Court denied the motion, concluding that Bodnari had not
demonstrated extraordinary circumstances sufficient to overcome the ninety-day
time limitation for a motion for sentence reduction under Superior Court Rule 35(b).
The court also stated that the court remained satisfied that the sentence is reasonable
and appropriate. Bodnari has appealed from the Superior Court’s denial of his
motion.
(5) We find no merit to Bodnari’s appeal. We review the Superior Court’s
denial of a motion for reduction of sentence under Rule 35(b) for abuse of
discretion.6 Under Rule 35(b), the Superior Court will consider a motion for
reduction of sentence more than ninety days after sentencing only in “extraordinary
circumstances.”7 “Extraordinary circumstances” are circumstances that
“specifically justify the delay; are entirely beyond a petitioner’s control; and have
prevented the applicant from seeking the remedy on a timely basis.”8 Bodnari’s
contentions regarding his applications for commutation and his assertion that he “did
not receive a fair sentencing originally, due to the court’s reliance on inaccurate and
6
Benge v. State, 101 A.3d 973, 976-77 (Del. 2014).
7
SUPER. CT. CRIM. R. 35(b). In addition to the exception for extraordinary circumstances, the
ninety-day time limitation also does not bar an application made in accordance with 11 Del. C. §
4217.
8
State v. Diaz, 2015 WL 1741768, at *2 (Del. Apr. 15, 2015) (internal quotations omitted).
3
extraneous information in the record”9 do not satisfy this standard or otherwise
provide grounds for reducing Bodnari’s sentence, particularly because Bodnari
received the minimum mandatory sentence for the offenses of which he was
convicted. Likewise, as the Superior Court correctly observed, “participation in
educational and rehabilitative programs, while commendable, does not, in and of
itself, constitute ‘extraordinary circumstances’ for purposes of Rule 35(b).”10
Finally, in 2013, the Superior Court rejected Bodnari’s claim that his sentence should
be reduced because the General Assembly later amended the sentencing ranges for
the applicable offenses, and Bodnari did not appeal. He therefore cannot
demonstrate extraordinary circumstances for considering that issue again now; in
any event, this Court has held that the General Assembly’s amendment of certain
drug trafficking laws in 2003 applied only prospectively and not retroactively. 11
(6) Rule 35(b) also provides that the Superior Court will not consider
repetitive requests for sentence reduction.12 Bodnari’s repetitive motion for sentence
reduction was filed well beyond the ninety-day limit. The Superior Court did not
abuse its discretion by denying the untimely and repetitive motion.13
9
Opening Brief at 5.
10
State v. Culp, 152 A.3d 141, 145-46 (Del. 2016).
11
E.g., Jones v. State, 2004 WL 2291310 (Del. Oct. 7, 2004).
12
SUPER. CT. CRIM. R. 35(b).
13
McDougal v. State, 2019 WL 2275002 (Del. Mar. 29, 2019).
4
(7) We also note that, contrary to Bodnari’s assertion, the Senior Court
Clerk appropriately struck the Motion to Compel Production of Documents that
Bodnari filed in this Court. “This court does not conduct trials for the determination
of facts, nor does it have any procedure to afford discovery. This court reviews
decisions of trial courts on the basis of the records made in them.”14
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/ James T. Vaughn, Jr.
Justice
14
Beard v. Elster, 160 A.2d 731, 741 (Del. 1960).
5
Bodnari v. State
Combined Opinion