IN THE SUPREME COURT OF THE STATE OF DELAWARE
KHALIL GRIER, §
§
Defendant Below, § N0, 635, 2014
Appellant, §
§
V- § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE’ § in and for New Castle County
PlaintiffBeIOW, I § Cr. ID No. 0907000639
Appellee. §
§
Submitted: December 22, 2014
Decided: January 13, 2015
Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
9.112%
This 13th day of January 2015, upon consideration of the appellant’s opening
brief, the State’s motion to affirm, and the record below, it appears to the Court
that:
(l) The appellant, Khalil Grier, filed this appeal from the Superior
Court’s denial of his motion for correction of an illegal sentence under Superior
Court Criminal Rule 35 (“Rule 35”). The State of Delaware has filed a motion to
affirm the judgment below on the ground that it is manifest on the face of Grier’s
opening brief that his appeal is without merit.1 We agree and affirm.
1 Supr. Ct. R. 25(a).
(2) The record reflects that, in May 2010, Grier pled guilty to two counts
of Robbery in the First Degree, one count of Assault in the Second Degree, and
one count of Possession of a Firearm During the Commission of a Felony
(“PFDCF”).2 Grier was sentenced on these counts as follows: (i) for one count of
Robbery in the First Degree, eight years of Level V incarceration, with credit for
237 days previously served, suspended after three years for eighteen months of
Level III probation; (ii) for the other count of Robbery in the First Degree, eight
years of Level V incarceration, suspended after three years for eighteen months of
Level III probation; (iii) for Assault in the Second Degree, five years of Level V
incarceration, suspended for eighteen months of Level III probation; and (iv) for
PFDCF, three years of Level V incarceration.
(3) On September 11, 2014, Grier filed a motion for correction of an
illegal sentence. Grier claimed that his PFDCF conviction violated double
jeopardy principles because it contained the same additional element as Robbery in
the First Degree and merged with Robbery in the First Degree. After requesting
and receiving a response from the State, the Superior Court denied the motion for
correction of illegal sentence. Grier filed a reply and opposition to the State’s
submission, which the Superior Court denied on November 6, 2014. This appeal
followed.
2 Grier also pled guilty to charges in a different case.
(4) On appeal, Grier relies on federal cases to argue that the Superior
Court erred in denying his motion for correction of an illegal sentence because his
convictions for Robbery in the First Degree and PFDCF violate double jeopardy.
Under Rule 35(a), a sentence is illegal if it exceeds statutory limits, violates double
jeopardy, is ambiguous with respect to the time and manner in which it is to be
served, is internally contradictory, omits a term required to be imposed by statute,
is uncertain as to the substance of the sentence, or is a sentence that the judgment
of conviction did not authorize. 3 Grier is not entitled to relief under Rule 35(a).
(5) First, the limited purpose of Rule 35(a) is to permit correction of an
illegal sentence.4 Rule 35(a) is not a means for a defendant to attack the legality of
his convictions, as Grier does here.5
(6) Second, to the extent Grier challenges his sentences for Robbery in
the First Degree and PFDCF, it is well—settled under Delaware law that a defendant
may be sentenced for both Robbery in the First Degree and a weapons offense like
PFDCF or Possession of a Deadly Weapon During the Commission of a Felony
3 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
4 Id.
5 Eley v. State, 2006 WL 2787399, at *1 (Del. Sept. 26, 2006) (finding no error in denial of
motion for correction of illegal sentence because claim that burglary and theft convictions
violated double jeopardy was not proper subject of Rule 35(a) motion); Brittingham v. State, 7 05
A.2d at 578 (concluding that challenges to validity of convictions were outside scope of Rule
35(a)).
(“PDWDCF”).6 Contrary to Grier’s contentions, this is not inconsistent with
federal law. In Missouri v. Hunter, the United States Supreme Court held that
where a legislature specifically authorizes cumulative punishment under two
statutes, a trial court may impose cumulative punishment under those statutes
regardless of whether the statutes proscribe the same conduct.7 Applying Hunter,
this Court held that a defendant may be convicted and punished for both Robbery
in the First Degree and PDWCF because the Delaware General Assembly clearly
intended that the sentence for a weapons offense run consecutively to a sentence
for robbery and the applicable statutory sections addressed different problems.8
Thus, Grier’s sentences for Robbery in the First Degree and PFDCF do not Violate
double jeopardy principles and the superior Court did not err in denying Grier’s
motion for correction of an illegal sentence.
6 Powell v. State, 2009 WL 3367068, at *4 (Del. Oct. 20, 2009) (“Under Delaware law, a
defendant may be separately charged, convicted and sentenced for both Robbery in the First
Degree and Possession of a Firearm During the Commission of a Felony”); Johnson v. State,
1999 WL 1098173, at *4 (Del. Nov. 2, 1999) (relying on LeCompte v. State to hold that
defendant could be convicted and sentenced for both Robbery in the First Degree and PFDCF);
LeCompte v. State, 516 A.2d 898, 900-03 (Del. 1986) (holding defendant could be convicted and
punished for both Robbery in the First Degree and PDWDCF).
7 459 ms. 359, 368-69 (Del. 1983).
8 LeCompte v. State, 516 A.2d at 900-03.
NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED
and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
Kggwfl
Justice