IN THE SUPREME COURT OF THE STATE OF DELAWARE
DEREK CLIFTON, §
§
Defendant Below, § No. 279, 2020
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID Nos. 0802034693 (N)
§ 0709007071 (N)
Plaintiff Below, §
Appellee. §
§
Submitted: November 2, 2021
Decided: December 7, 2021
Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES,
Justices.
ORDER
After consideration of the appellant’s opening brief, the State’s motion to
affirm, and the record on appeal, it appears to the Court that:
(1) The appellant, Derek Clifton, appeals from a Superior Court order dated
August 5, 2020, which denied Clifton’s successive motion challenging his sentence
under Superior Court Criminal Rule 35. The State has filed a motion to affirm the
Superior Court’s judgment on the ground that it is manifest on the face of Clifton’s
opening brief that the appeal is without merit. We agree and affirm.
(2) Clifton has been convicted of various criminal offenses in Pennsylvania
and Delaware. In October 2007, a Delaware grand jury indicted Clifton for first-
degree robbery, possession of a deadly weapon during the commission of a felony,
and other charges. In March 2008, another Delaware grand jury indicted Clifton for
second-degree burglary, second-degree conspiracy, theft, and other charges. In
2008, Clifton also had criminal charges pending in two cases in Pennsylvania. In
one of the Pennsylvania cases, Clifton pled guilty in February 2008 and a
Pennsylvania court sentenced him to between 215 days and twenty-three months in
prison; in the other Pennsylvania case, Clifton pled guilty in May 2008 and a
Pennsylvania court sentenced him to between forty-eight and ninety-six months in
prison.
(3) In 2011, Clifton was extradited to Delaware under the Uniform
Agreement on Detainers to face the Delaware charges. On August 15, 2011, Clifton
resolved both Delaware cases by pleading guilty to second-degree robbery, second-
degree burglary, and third-degree burglary. In exchange, the State agreed to dismiss
all the other charges in the 2007 and 2008 indictments. The Superior Court
sentenced Clifton, effective May 23, 2011, to an aggregate of nine years of
incarceration, suspended after one year and six months for decreasing levels of
supervision. In September 2011, the State requested that the Superior Court modify
the effective date of the sentence because, under the Uniform Agreement on
Detainers, the time that he was temporarily in Delaware to resolve his Delaware
charges could be applied only to his Pennsylvania sentence and not to his Delaware
2
sentence.1 Clifton, who was represented by counsel, did not oppose the State’s
request, and on October 13, 2011, the Superior Court modified the effective date of
the sentence to August 15, 2011. Between January 2012 and December 2018,
Clifton resolved additional Pennsylvania charges and was sentenced to additional
terms of imprisonment in Pennsylvania.
(4) Over the years, Clifton has filed numerous motions for correction or
modification of sentence and for postconviction relief. In the order that is the subject
of this appeal, the Superior Court denied a motion that the court construed as a
motion seeking modification of Clifton’s sentence under Superior Court Criminal
Rule 35(b). The court denied the motion as time barred and repetitive.
(5) We review the denial of a motion under Rule 35 for abuse of discretion.2
To the extent that the claim involves a question of law, we review the claim de novo.3
A motion to correct an illegal sentence under Rule 35(a) may be filed at any time.4
1
See 11 Del. C. § 2544(f) (“During the continuance of temporary custody or while the prisoner is
otherwise being made available for trial as required by this agreement, time being served on the
sentence shall continue to run . . . .”); id. § 2544(g) (“For all purposes other than that for which
temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to
remain in the custody of and subject to the jurisdiction of the sending state . . . .”). See also Frady
v. State, 2008 WL 4286542 (Del. Sept. 16, 2008) (“Under the [Uniform Agreement on Detainers],
Frady remained under the jurisdiction of Maryland authorities during the time that he was returned
temporarily to Delaware to resolve his pending criminal charges here. Frady continued to serve
his Maryland sentence while he was temporarily in the custody of Delaware authorities under the
[Uniform Agreement on Detainers].” (citations omitted)).
2
Gladden v. State, 2020 WL 773290, at *1 (Del. Feb. 17, 2020); Fountain v. State, 2014 WL
4102069, at *1 (Del. Aug. 19, 2014).
3
Fountain, 2014 WL 4102069, at *1.
4
Del. Super. Ct. Crim. R. 35(a).
3
A sentence is illegal if it exceeds statutory limits, violates double jeopardy, is
ambiguous with respect to the time and manner in which it is to be served, is
internally contradictory, omits a term required to be imposed by statute, is uncertain
as to the substance of the sentence, or is a sentence that the judgment of conviction
did not authorize.5 The Superior Court will consider a motion to correct a sentence
imposed in an illegal manner or for reduction or modification of sentence filed more
than ninety days after imposition of sentence only in “extraordinary circumstances”
or if the Department of Correction files an application under 11 Del. C. § 4217.6 The
Superior Court “will not consider repetitive requests for reduction of sentence.”7
(6) On appeal, Clifton argues that the Superior Court erred by modifying
his sentence in October 2011 without providing him notice and an opportunity to
object. Clifton did not present this claim in his motion to the Superior Court, and
the claim is therefore waived absent plain error.8 We find no plain error. As an
initial matter, Clifton’s numerous pro se filings make clear that he has been aware
of the modification since at least 2014, if not earlier, and thus the argument is
untimely. Moreover, the record reflects that Clifton’s counsel was informed of the
State’s request for the modification before the Superior Court acted on the request,
5
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
6
Del. Super. Ct. Crim. R. 35(b).
7
Id.
8
Del. Supr. Ct. R. 8.
4
and Clifton’s counsel indicated that there was no basis to object. The Superior Court
did not err by denying Clifton’s untimely claim.9
(7) Clifton also argues that his sentence violated the plea agreement
because he agreed to a sentence of eighteen months, effective May 23, 2011.
Similarly, he contends that his counsel was ineffective, and the State and the
Superior Court misled him at the time of his plea, because they caused him to believe
that his Delaware sentence would run concurrently with his Pennsylvania sentence.
These claims also provide no basis for reversal. “The proper procedural vehicle for
an ineffective assistance of counsel claim is Rule 61, not Rule 35.”10 Moreover, the
transcript of the plea colloquy and sentencing reflects that the parties understood at
the time of sentencing that the time that Clifton served in Delaware between his
extradition and his Delaware sentencing would be credited to only his Delaware or
his Pennsylvania sentence, not both.11 The Superior Court did not err by denying
Clifton’s untimely, repetitive motion.
9
See Hall v. State, 2010 WL 3222441, at *1 (Del. Aug. 16, 2010) (“Finally, the record before us
reflects that counsel for Hall was provided a copy of the amended sentencing order and offered no
objection to it. As such, we conclude that the Superior Court properly denied Hall’s motion for
sentence modification.”).
10
Davis v. State, 2016 WL 358965, at *2 (Del. Jan. 28, 2016).
11
Exhibit C to Opening Brief, at 12:2-13:2.
5
NOW, THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED, and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
Tamika R. Montgomery-Reeves
Justice
6
Clifton v. State
Combined Opinion