IN THE SUPREME COURT OF THE STATE OF DELAWARE

SHIRLEY SMITH,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Appellee.

§

§ 

§ No. 146, 2023

§

§ Court Below—Superior Court

§ of the State of Delaware

§

§ Cr. ID No. 1404012579 (K)

§ 

§

Submitted: June 15, 2023

Decided: July 20, 2023

Before VALIHURA, TRAYNOR, and LEGROW, 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, Shirley Smith, filed this appeal from the Superior 

Court’s denial of her motion for sentence reduction. The State has moved to affirm 

the judgment below on the ground that it is manifest on the face of Smith’s opening 

brief that her appeal is without merit. We agree and affirm. 

(2) In 2014, Smith pleaded guilty to home invasion, first-degree assault, 

possession of a deadly weapon during commission of a felony (“PDWCF”), and 

second-degree conspiracy. The charges arose from Smith’s and another person’s

breaking into the house of a man over the age of sixty-two, assaulting him, and 
2

robbing him. After a presentence investigation, the Superior Court sentenced Smith 

to a total of 54 years of incarceration, suspended after 22 years for decreasing levels 

of supervision. Smith did not file a direct appeal but has filed several motions for 

postconviction relief. 

(3) In September 2022, Smith filed a motion for sentence reduction. She 

alleged, among other things, that her trial counsel was ineffective and that her 

sentence violated the Eighth Amendment of the United States Constitution. She 

requested immediate release to Level IV. The Superior Court denied the motion, 

finding it untimely and repetitive. This appeal followed. Smith subsequently filed 

a motion for preparation of the plea and sentencing transcripts at State expense, 

which the Superior Court denied. 

(4) We review the Superior Court’s denial of a motion for sentence 

reduction for abuse of discretion.1 To the extent the claim involves a question of law, 

we review the claim de novo.

2

 Superior Court Criminal Rule 35(b) provides that a 

motion for sentence reduction that is not filed within ninety days of sentencing will 

only be considered in extraordinary circumstances or under 11 Del. C. § 4217. Rule 

35(b) also provides that the Superior Court will not consider repetitive motions for 

sentence reduction. 

1

State v. Culp, 152 A.3d 141, 144 (Del. 2016).

2

Id.
3

(5) In her opening brief, Smith primarily challenges the Superior Court’s 

denial of her motion for transcripts at State expense. She argues that the transcripts 

are necessary for her ineffective-assistance-of-counsel claims. She also contends 

that her sentence violates the Eighth Amendment and that she has served sufficient 

time for her crimes. 

(6) Although indigent defendants have a right to transcripts at State 

expense on direct appeal, they do not have an absolute right to transcripts at State 

expense in postconviction proceedings.3 A defendant must raise ineffectiveassistance-of-counsel claims in a timely-filed motion for postconviction relief under 

Superior Court Criminal Rule 61.4 Smith’s conviction became final almost nine

years ago and she has already filed two motions for postconviction relief under 

Superior Court Criminal Rule 61. She did not make any showing that she could 

overcome the Rule 61 procedural bars,

5

and the Superior Court did not abuse its 

discretion in denying her motion for transcripts at State expense.

(7) Nor did the Superior Court err in denying Smith’s motion for sentence 

reduction. Smith’s non-suspended 22-year sentence for home invasion, first-degree

3 Grayson v. State, 2021 WL 3521071, at *2 (Del. Aug. 10, 2021).

4 Desmond v. State, 654 A.2d 821, 829 (Del. 1994).

5

See, e.g., Super. Ct. Crim. R. 61(d)(2) (limiting second or subsequent Rule 61 motions to movants 

who were convicted after trial); Super. Ct. Crim. R. 61(i)(1) (requiring the filing of a Rule 61 

motion within one year of the conviction becoming final); Super. Ct. Crim. R. 61(i)(5) (providing 

that Rule 61(i)(1), (2), (3), and (4) do not apply to a claim that that the Superior Court lacked 

jurisdiction).
4

assault, PDWDCF, and second-degree conspiracy is not disproportionate to those 

crimes and did not violate Smith’s Eighth Amendment right to be free from cruel 

and unusual punishment.6 Smith also failed to establish extraordinary circumstances 

warranting review of her untimely motion for sentence reduction. 

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/ Gary F. Traynor

Justice

6

See, e.g., Hawkins v. State, 2010 WL 5043931, at *1-2 (Del. Dec. 9, 2010) (rejecting claim that 

aggregate twenty-year sentence for two PDWDCF convictions violated Eighth Amendment).