Shelley v. State

• Court: Supreme Court of Delaware
• Decided: June 21, 2017
• Docket: 136, 2017
• Status: Published

Opinion

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).