IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANTONIO D. PERRY,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Plaintiff Below,

Appellee.

§

§ No. 57, 2021

§

§ Court Below—Superior Court

§ of the State of Delaware

§

§ Cr. ID No. 1502011219 (K)

§ 

§

§

§

 Submitted: March 15, 2021

 Decided: April 27, 2021

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

ORDER

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, Antonio D. Perry, filed this appeal from the Superior 

Court’s denial of his motion for sentence modification or review of sentence. The 

State of Delaware has filed a motion to affirm the judgment below on the ground 

that it is manifest on the face of Perry’s opening brief that his appeal is without merit. 

We agree and affirm. 

(2) On May 31, 2016, Perry pleaded guilty to drug dealing. The Superior 

Court sentenced Perry to fifteen years of Level V incarceration suspended for 

eighteen months of Level III probation. In January 2017, October 2018, and 
2

February 2020, the Superior Court found that Perry had violated his probation. 

Effective February 1, 2020, the Superior Court sentenced Perry to thirteen years and 

seven months of Level V incarceration suspended after nine months (to be served 

under 11 Del. C. § 4204(k) without the benefit of any early release) and successful 

completion of a Level V program within the discretion of the Department of 

Correction (“DOC”) for three months of Level IV work release, followed by one 

year of Level III probation. On appeal of this sentence, the Court affirmed the 

Superior Court’s judgment.

1

(3) Perry filed motions for modification of sentence in April 2020 and 

November 2020 based on the impact of COVID-19 on prison inmates and prison 

programs. The Superior Court denied the motions. 

(4) On January 4, 2021, Perry filed another motion for sentence 

modification or sentence review based on his completion of the original nine-month 

sentence and the lack of available prison programs as a result of COVID-19. The 

Superior Court denied the motion, finding it time-barred, repetitive, and the sentence 

appropriate for all of the reasons stated at sentencing. The Superior Court also noted 

that the DOC had implemented a protocol for increased screening of inmates to 

protect them from COVID-19. This appeal followed. 

(5) In his opening brief, Perry argues that his motion was not time-barred 

1 Perry v. State, 2020 WL 3069498 (Del. June 9, 2020).
3

because he filed a motion for sentence modification within ninety days of the 

imposition of his February 2020 VOP sentence. He also contends that extraordinary 

circumstances justify review of his sentence because he completed the original ninemonth Level V sentence and the prison is not presently offering programs as a result 

of COVID-19. 

(6) We review the Superior Court’s denial of a motion for modification of 

sentence for abuse of discretion, although questions of law are reviewed de novo.

2

 

Under Rule 35(b), a motion for reduction of sentence filed more than ninety days 

after imposition of the sentence will be considered only in extraordinary 

circumstances or if the Department of Correction files an application under 11 Del. 

C. § 4217.3 The Superior Court “will not consider repetitive requests for reduction 

of sentence.”4 

(7) The Superior Court did not err in denying Perry’s motion for sentence 

modification or sentence review. The repetitive motion was filed more than ninety 

days after the imposition of his sentence. Perry’s filing of one motion for sentence 

modification within ninety days does not make his subsequent motions filed after 

the ninety-day time period timely. Nor did Perry establish extraordinary 

circumstances to justify review of his untimely motion. Given Perry’s repeated 

2

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

3 Under this statute, the Department of Correction may apply for sentence reduction for good 

cause shown, which can include rehabilitation of the offender.

4 Super. Ct. Crim. R. 35(b).
4

VOPs, the Superior Court could reasonably view successful completion of a Level 

V program as an essential component of Perry’s VOP sentence. 

NOW, THEREFORE, IT IS ORDERED that the motion to affirm is 

GRANTED and the Superior Court’s judgment is AFFIRMED.

BY THE COURT:

/s/ James T. Vaughn, Jr. 

Justice