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Gibbs v. State11/12/2004
Gibbs' claims on appeal were not presented to the Superior Court. As a result, the claims will be reviewed only for plain error. "The doctrine of plain error review only applies to 'basic, serious and fundamental' defects which are 'apparent on the face of the record' and deprive the litigants of either a 'substantial right' or clearly illustrate 'manifest injustice.'"
(11) Notwithstanding Gibbs' personal belief that he was only in need of a thirty-day "tune-up," he has neither asserted nor established plain error with respect to the Superior Court's denial of his fourth motion for modification of sentence. Gibbs' remaining claims, that have to do with the April 22, 2004 VOP adjudication and sentence, are not justiciable in this appeal from the denial of modification of sentence. Moreover, those claims are untimely.
(12) Superior Court Criminal Rule 35(b) provides that the Court may modify a sentence of imprisonment on a motion made within ninety days after the sentence is imposed. The Superior Court will not, however, consider repetitive requests for modification of sentence.
(13) We have concluded that the Superior Court did not abuse its discretion when denying Gibbs' motion for modification of sentence. Gibbs' motion was filed within the ninety-day period; however, it was his fourth motion filed within that period, and he essentially repeated claims that were previously rejected. Thus, the Superior Court correctly denied Gibbs' latest motion as repetitive.
(14) It is manifest on the face of Gibbs' opening brief that this appeal is without merit. The issues presented on appeal are controlled by settled Delaware law. To the extent that judicial discretion is implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the State of Delaware's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
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