IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARK FRANKLIN,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Plaintiff Below,

Appellee.

§

§ No. 1, 2021

§

§

§

§ Court Below–Superior Court

§ of the State of Delaware

§ 

§ Cr. ID No. 0108020942 (K)

§ 

§

Submitted: March 8, 2021

 Decided: May 14, 2021

Before VALIHURA, TRAYNOR, and MONTGOMERY-REEVES, Justices.

O R D E R

After careful consideration of the appellant’s opening brief, the State’s motion 

to affirm,1and the Superior Court record, it appears to the Court that:

(1) The appellant, Mark Franklin, filed this appeal from the Superior 

Court’s denial of his motion for sentence modification. The State has filed a motion 

to affirm the judgment below on the ground that it is manifest on the face of 

Franklin’s opening brief that his appeal is without merit. We agree and affirm.

1 On March 17, 2021, the appellant filed a motion for leave to respond to the State’s motion to 

affirm. Under Supreme Court Rule 25(a), a response to a motion to affirm is not permitted unless 

requested by the Court. The Court did not ask the appellant to respond to the motion to affirm 

and, after considering the appellant’s motion, finds no reason to request a response.
2

(2) In 2004, Franklin pleaded guilty to three counts of third-degree rape. 

Following a presentence investigation, the Superior Court sentenced Franklin to 

thirty years of Level V incarceration, suspended after fifteen years for Level III 

probation. As part of his sentence, the Superior Court ordered Franklin to complete 

a sex offender treatment program and forbade him from having contact with minors. 

Between 2015 and 2017, Franklin was found in violation of the terms of his 

probation on four occasions. His violations included, among other things, contact 

with minors.

(3) On October 29, 2018, the Superior Court found Franklin in violation of 

the terms of his probation for a fifth time. The Superior Court immediately 

sentenced Franklin to five years of Level V incarceration suspended after the 

successful completion of the Transitions Sex Offender Program (“Transitions”) on 

one of the charges and imposed a suspended sentence on each of the other two 

charges. Franklin did not appeal.

(4) On October 2, 2019, Franklin filed a motion for correction of sentence 

under Superior Court Criminal Rule 35(a). Franklin argued that his VOP sentence 

was illegal because it exceeded the sentencing recommendation set forth in the 

Superior Court Sentencing Benchbook and that he had received ineffective

assistance of counsel at his violation of probation (“VOP”) hearing. The Superior 
3

Court denied the motion, and we affirmed the Superior Court’s judgment on appeal.2 

On April 22, 2020, Franklin filed a second motion for correction of sentence. In 

support of his motion, Franklin argued that he had already satisfied the Level V 

portion of his VOP sentence because he had, during previous terms of incarceration, 

completed numerous sex offender treatment programs. The Superior Court denied 

the motion, and Franklin did not appeal.

(5) On December 15, 2020, Franklin filed a motion for sentence 

modification under Superior Court Criminal Rule 35(b) (“Rule 35(b)”). Franklin 

asked the Superior Court to recognize his prior completion of the Family Problems 

Program as satisfying the requirement of his VOP sentence that he successfully 

complete Transitions and to modify his sentence to a term of unconditional Level V 

incarceration followed by decreasing levels of supervision. In support of his motion, 

Franklin noted that his ability to participate in Transitions had been hampered by 

COVID-19-related restrictions on group activities. On December 21, 2020, the 

Superior Court denied the motion. This appeal followed.

(6) We review the Superior Court’s denial of a Rule 35(b) motion for abuse 

of discretion, a highly deferential standard.

3

 Rule 35(b) provides that a motion for 

sentence modification filed after ninety days will only be considered in 

2 Franklin v. State, 2020 WL 864880 (Del. Feb. 20, 2020).

3 Benge v. State, 101 A.3d 973, 976-77 (Del. 2014).
4

“extraordinary circumstances” or under 11 Del. C. § 4217.4 “In order to uphold the 

finality of judgments, a heavy burden is placed on the defendant to prove 

extraordinary circumstances when a Rule 35 motion is filed outside of ninety days 

of imposition of a sentence.”5

(7) Franklin raises two arguments on appeal: (i) the Superior Court abused 

its discretion by ignoring the fact that he completed Transitions in 2016 during a 

previous term of incarceration; and (ii) the Superior Court abused its discretion by 

failing to acknowledge the “double jeopardy issues” raised by his VOP sentence. 

(8) As a preliminary matter, because Franklin did not raise his double 

jeopardy claim below, we ordinarily will not entertain it on appeal.6 In any event, 

Franklin’s claim is unavailing. The Double Jeopardy Clause protects a defendant 

from: (i) a second prosecution for the same offense after acquittal; (ii) a second 

prosecution for the same offense after conviction; and (iii) receiving multiple 

punishments for the same offense.7 These protections are not implicated here.

(9) Second, Franklin does not allege that extraordinary circumstances exist 

that would excuse his untimely motion to modify. Rather, Franklin argues—as he 

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

5

State v. Culp, 152 A.3d 141, 145 (Del. 2016) (citation omitted).

6 Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for 

review; provided, however, that when the interests of justice so require, the Court may consider 

and determine any question not so presented.”); Del. Elec. Coop., Inc. v. Duphily, 703 A.2d 1202, 

1206 (Del. 1997) (“It is a basic tenet of appellate practice that an appellate court reviews only 

matters considered in the first instance by a trial court.”).

7 Blake v. State, 65 A.3d 557, 561 (Del. 2013).
5

did below—that he should be excused from completing Transitions because he has 

previously completed various sex offender treatment programs. This Court has held 

that extraordinary circumstances are circumstances that “specifically justify the 

delay; are entirely beyond a petitioner’s control; and have prevented the applicant 

from seeking the remedy on a timely basis.”8 Such circumstances are not present 

here. Accordingly, we affirm the Superior Court’s judgment.

NOW, THEREFORE, IT IS HEREBY ORDERED that the motion for leave 

to respond to the motion to affirm is DENIED. The motion to affirm is GRANTED,

and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Gary F. Traynor

Justice

8 Culp, 152 A.2d at 145 (internal quotation marks and citation omitted).