Henry v. State

• Court: Supreme Court of Delaware
• Decided: January 24, 2018
• Docket: 423, 2017
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JERRY HENRY, § § Defendant Below, § No. 423, 2017 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1201002933 (S) § Plaintiff Below, § Appellee. §

Submitted: November 22, 2017 Decided: January 24, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

ORDER

This 24th day of January 2018, 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, Jerry Henry filed this appeal from a Superior Court order

denying his motion for reduction of sentence under Superior Court Criminal Rule

35(b). The State of Delaware has filed a motion to affirm the judgment below on

the ground that it is manifest on the face of Henry’s opening brief that his appeal is

without merit. We agree and affirm.

(2) The record reflects that, on September 18, 2012, Henry resolved two

criminal cases by pleading guilty to Aggravated Possession Tier 5 in Criminal ID No. 1201002933 and Attempted Robbery in the First Degree, Possession of a

Firearm During the Commission of a Felony, and Conspiracy in the Second Degree

in Criminal ID No. 1204003166. He also admitted to violations of his probation.

After granting the State’s motion to declare Henry a habitual offender under 11 Del.

C. § 4214(a), the Superior Court sentenced Henry on September 18, 2012 to more

than fifty years of Level V incarceration, suspended after twenty-five years for

decreasing levels of supervision. This Court affirmed the Superior Court’s denial of

Henry’s first motion for postconviction relief under Superior Court Criminal Rule

61.1

(3) On August 18, 2017, Henry filed a motion for reduction of sentence in

Criminal ID No. 1201002933 and Criminal ID No. 1204003166. Henry argued his

sentence should be reduced because he fulfilled his obligations under a cooperation

agreement with the State. The Superior Court found the motion was filed more than

ninety days after the imposition of the sentence, there were no extraordinary

circumstances to overcome the time bar, and Henry did not have an agreement with

the Superior Court. This appeal followed.

(4) We review the Superior Court's denial of a motion for reduction of

sentence for abuse of discretion.2 To the extent the claims involves a question of

1 Henry v. State, 2014 WL 2568039 (Del. June 5, 2014). 2 Jackson v. State, 2016 WL 4547896, at *2 (Del. Aug. 31, 2016). 2 law, we review the claim de novo.3 Under Superior Court Criminal Rule 35(b), the

Superior Court may grant a motion for reduction of sentence filed more than ninety

days after sentencing (like Henry’s motion) “only in extraordinary circumstances”

or on the basis of an application filed by the Department of Correction under 11 Del.

C. § 4217.4

(5) In his opening brief, Henry argues that he complied with the terms of a

cooperation agreement with the State, but his postconviction counsel failed to return

the signed cooperation agreement to the State. Henry also argues for the first time

that he had an oral agreement with the State to give a statement about a murder in

exchange for the State filing a motion for reduction of sentence. Henry contends

that he gave a statement that led to another person pleading guilty.

(6) Henry included a copy of a cooperation agreement with a date of June

23, 2016 next to his signature. The signature spaces for the State and Henry’s

postconviction counsel are blank. Under the cooperation agreement, the Attorney

General’s Office would file a motion to modify Henry’s sentence in Criminal ID No.

1204003166 if it determined in its reasonable discretion that Henry fully complied

with the cooperation agreement and provided substantial assistance in the

3 Id. 4 Super. Ct. Crim. R. 35(b). 3 investigation or prosecution of those who committed the murder. Actual

modification of the sentence was solely within the discretion of the Superior Court.

(7) The Superior Court did not err in denying Henry’s motion for reduction

of sentence. A cooperation agreement that was not signed by the State did not

constitute extraordinary circumstances supporting reduction of Henry’s sentence.

As to Henry’s claim that that he had an oral agreement with the State, he did not

raise this claim below and we will not consider it for the first time on appeal.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:

/s/ James T. Vaughn, Jr. Justice

5 Supr. Ct. R. 8. 4