IN THE SUPREME COURT OF THE STATE OF DELAWARE
DAVID C. DAVIS, §
§
Defendant Below, § No. 578, 2015
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 1212002650
Plaintiff Below, §
Appellee. §
Submitted: December 14, 2015
Decided: January 28, 2016
Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
ORDER
This 28th day of January 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, David C. Davis, filed this appeal from the Superior
Court’s denial of his motion for correction 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 Davis’ opening brief that his appeal is without merit. We agree and affirm.
(2) The record reflects that, on March 20, 2014, Davis pled guilty to
Terroristic Threatening in the First Degree and Arson in the Third Degree. As part
of the plea agreement, Davis agreed that he was eligible for habitual offender
sentencing under 11 Del. C. § 4214(a). The State indicated that it would seek
habitual offender sentencing for the Terroristic Threatening in the First Degree
charge.
(3) On March 25, 2014, the State filed a motion to declare Davis an
habitual offender under 11 Del. C. § 4214(a). The Superior Court declared Davis
an habitual offender on June 6, 2014. Davis was sentenced as follows: (i) for
Reckless Endangering in the First Degree, as an habitual offender, ten years of
Level V incarceration; (ii) for Arson in the Third Degree, one year of Level V
incarceration, suspended for 1 one year of Level IV at the Department of
Correction’s discretion, suspended after six months for six months of Level III
probation. Davis did not appeal the Superior Courts judgment. Instead, Davis
filed unsuccessful motions for reduction of sentence, postconviction relief under
Superior Court Criminal Rule 61, and sentencing transcripts, discovery, and police
reports.
(4) On September 21, 2015, Davis filed a motion for correction of
sentence. The Superior Court denied the motion, concluding that the sentence was
imposed under a plea agreement, the motion was untimely and there were no
extraordinary circumstances supporting consideration of the motion, the motion
was repetitive, the sentence was appropriate for all of the reasons stated at the time
of sentencing, and Davis had an extensive criminal history. This appeal followed.
2
On appeal, Davis requested the indictment, discovery, and sentencing transcript at
State expense. The Superior Court denied Davis’ request.
(5) In his opening brief, Davis contends that: (i) the Superior Court erred
in treating his motion for correction of sentence like a motion under Rule 35(b)
instead of Rule 35(a); (ii) his sentence is illegal because it includes probation and
no probation can be imposed under 11 Del. C. § 4214; (iii) there are double
jeopardy violations; (iv) he did not receive a proper habitual offender hearing
under 11 Del. C. § 4214; (v) the Superior Court failed to state its reasons for
deviating from the guidelines in the Delaware Sentencing Accountability
Commission Benchbook (“SENTAC Guidelines”); (vi) he should have been
provided with treatment; and (vii) the Superior Court erred in denying his request
for his indictment, discovery, and sentencing transcript.
(6) We review the Superior Court’s denial of a motion for correction of
sentence for abuse of discretion.1 To the extent the claim involves a question of
law, we review the claim de novo.2 A motion to correct an illegal sentence under
Rule 35(a) may be filed at any time. 3 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
1
Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
2
Id.
3
Super. Ct. R. 35(a).
3
imposed by statute, is uncertain as to the substance of the sentence, or is a sentence
that the judgment of conviction did not authorize. 4 A motion to correct a sentence
imposed in an illegal manner or 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. § 4217.5
(7) Only two of Davis’ claims—that his sentence is illegal because it
includes probation in violation of 11 Del. C. § 4214 and because it violates double
jeopardy—implicate Rule 35(a) and did not have to be filed within ninety days of
the imposition of Davis’ sentence. Both of these claims are without merit. First,
Davis was not sentenced as an habitual offender for Arson in the Third Degree,
which is the sentence that included probation. Second, Davis’ knowing and
voluntary guilty plea waives any claim of a double jeopardy violation. 6
(8) Davis’ claims regarding his habitual offender hearing and the
Superior Court’s deviation from SENTAC Guidelines relate to the manner in
which his sentence was imposed. Absent extraordinary circumstances or an
application by the Department of Correction under 11 Del. C. § 4217, the Superior
Court will not consider a motion for correction of a sentence imposed in an illegal
4
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
5
Super. Ct. Crim. R. 35(a), (b).
6
Lanzo v. State, 2015 WL 5120872, at *1 (Del. Aug. 22, 2013); Bowers v. State, 2007 WL
2359553, at *1 (Del. Aug. 20, 2007).
4
manner filed more than ninety days after imposition of the sentence. 7 Davis filed
his motion for correction of sentence more than ninety days after the imposition of
his sentence. Davis has not shown any extraordinary circumstances warranting
consideration of his untimely motion for correction of sentence. The record
reflects that Davis agreed he was eligible for habitual offender sentencing as part
of his guilty plea and that the sentencing judge was concerned by Davis’ lengthy
criminal history and limited remorse. No application was filed by the Department
of Correction under 11 Del. C. § 4217.
(9) As to Davis’ claim that he should have received treatment as part of
his sentence, this claim is contrary to the terms of his sentence. As part of his
sentence, Davis must complete an anger management treatment program, receive a
mental health evaluation and follow any recommendations for counseling and
treatment, and receive a substance abuse evaluation and follow any
recommendations for treatment, counseling, and screening. To the extent Davis is
claiming he should have received treatment as part of his sentences in different
criminal proceedings, that claim is outside the scope of this appeal.
(10) Finally, the Superior Court did not err in denying Davis’ request for
his indictment, sentencing transcript, and discovery at State expense. Davis claims
that he needs these documents in order to raise claims of ineffective assistance of
7
See supra ¶ 6.
5
counsel, determine whether there was a proper habitual offender hearing, and
review whether his charges were legal. This claim is without merit.
(11) The proper procedural vehicle for an ineffective assistance of counsel
claim is Rule 61, not Rule 35.8 Davis filed a motion for correction of sentence
under Rule 35, not a motion for postconviction relief under Rule 61. Davis’
attacks on his charges are also outside the scope of Rule 35(a). 9 As previously
discussed, Davis’ claim regarding the habitual offender hearing was untimely. 10
Thus, none of the documents sought by Davis were necessary for his motion for
correction of sentence and the Superior Court did not err in denying Davis’ motion
for these documents.
NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED
and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
8
Cochran v. State, 2007 WL 28182870, *2 (Del. Sept. 28, 2007); Glenn v. State, 2003 WL
21714083, at *1 (Del. July 21, 2003).
9
Brittingham v. State, 705 A.2d at 578.
10
See supra ¶ 10.
6