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 21st day of July 2016, 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, Marcus Johnson, filed this appeal from a 

Superior Court order denying three motions seeking modification of his 

sentence. The State has filed a motion to affirm the 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 State’s motion, the 
2

Superior Court declared Johnson to be a habitual offender. The Superior 

Court sentenced Johnson on October 4, 2013 to a total period of seventeen 

years at Level V incarceration, to be suspended after serving nine years in 

prison for decreasing levels of supervision. Johnson did not file a direct 

appeal. Instead, Johnson file two motions seeking modification of his 

sentence in May 2014 and July 2014. The Superior Court denied both 

motions in a single order in August 2014. 

(3) Thereafter, between August 2015 and December 2015, Johnson 

filed three more motions seeking modification of his sentence based on 

claims that: (i) he was entitled to have his sentences 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 concurrently and erred in 

concluding that the amended law did not apply retroactively. 

 

1

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

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

State2that 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 concurrently. 

(6) Moreover, we find no merit to Johnson’s claim that the 

Superior Court erred in failing to hold a hearing on his claim that the State 

had breached its agreement to file a substantial assistance motion on his 

behalf.4

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

modification of sentence must be filed within 90 days of sentencing unless 

the defendant can establish extraordinary circumstances.

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 modification 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 under 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