IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARCUS JOHNSON,

Defendant BelowAppellant,

v. STATE OF DELAWARE,

Plaintiff BelowAppellee. § § § No. 233, 2016 § § § Court Below—Superior Court § of the State of Delaware § § Cr. ID 1305001585 § § Submitted: May 24, 2016 Decided: July 21, 2016

Before STRINE , Chief Justice; VAUGHN , and SEITZ , Justices.

ORDER

This 21 st day of July 2016, upon consideration of the appell ant’s opening brief, the State’s motion to affirm, and th e record below, it appears

to the Court that: (1) The appellant, Marcus Johnson, filed this appea l from a Superior Court order denying three motions seeking modification of his

sentence. The State has filed a motion to affirm t he judgment below on the ground that it is manifest on the face of Johnson’s opening brief that his appeal is without merit. We agree and affirm. (2) Johnson pled guilty in July 2013 to two counts of Possession of a Controlled Substance (Tier 5 weight). Upon the S tate’s motion, the2

Superior Court declared Johnson to be a habitual of fender. The Superior Court sentenced Johnson on October 4, 2013 to a tot al period of seventeen years at Level V incarceration, to be suspended aft er serving nine years in prison for decreasing levels of supervision. Johns on did not file a direct appeal. Instead, Johnson file two motions seeking modification of his sentence in May 2014 and July 2014. The Superior C ourt denied both motions in a single order in August 2014. (3) Thereafter, between August 2015 and December 20 15, Johnson filed three more motions seeking modification of hi s sentence based on claims that: (i) he was entitled to have his senten ces run concurrently as a result of the General Assembly’s adoption of House Bill 312; 1 and (ii) the State was required to file a substantial assistance motion in his case. The Superior Court denied Johnson’s motions on April 26 , 2016. This appeal

followed. (4) On appeal, Johnson first argues that House Bill 312, which

amended 11 Del. C. § 3901(d) to permit concurrent sentences, applies to his case. He argues that the Superior Court abused its discretion in refusing to modify his sentences to allow them to run concurren tly and erred in concluding that the amended law did not apply retro actively.

1 79 Del. Laws c. 297 (2014).3

(5) Johnson is incorrect. The Court recently held in Fountain v.

State 2 that the amendment to 11 Del. C. § 3901(d) only applies prospectively and not retroactively. 3 Thus, the Superior Court did not err in refusing to amend Johnson’s sentences to permit them to run con currently. (6) Moreover, we find no merit to Johnson’s claim t hat the Superior Court erred in failing to hold a hearing o n his claim that the State had breached its agreement to file a substantial as sistance motion on his

behalf. 4 Under Superior Court Criminal 35(b), a motion for reduction or

modification of sentence must be filed within 90 da ys of sentencing unless the defendant can establish extraordinary circumsta nces. 5 Johnson failed to establish extraordinary circumstances in this case because, as the Superior Court properly held, he offered nothing to support his claim that the State had agreed to file a substantial assistance motion on his behalf. Accordingly, we find no abuse of the Superior Court ’s discretion in denying Johnson’s untimely and repetitive motion for modifi cation of sentence.

2 __ A.3d __, 2016 WL 2927750 (Del. May 16, 2016). 3 Id . at *4-5. 4 Under 11 Del. C. § 4220(a), the State may file a motion to modify a defendant’s sentence if the defendant has provided substantial assistance in the identification, arrest or prosecution of any other person for a crime unde r any state or federal law. 5 Del. Super. Ct. Crim. R. 35(b) (2016).4

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Justice