IN THE SUPREME COURT OF THE STATE OF DELAWARE
KOSHAUN E. MACK, §
§ No. 60, 2021
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1809014735 (N)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: April 21, 2021
Decided: June 17, 2021
Before VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices.
ORDER
Upon consideration of the opening brief, the motion to affirm, and the record
below, it appears to the Court that:
(1) The appellant, Koshaun E. Mack, 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 Mack’s opening brief that his appeal is without merit. We agree and affirm.
(2) On May 7, 2019, Mack pleaded guilty to aggravated possession of PCP
in a Tier 1 amount and possession of ammunition by a person prohibited (“PABPP”).
The plea agreement reflected that the aggravated possession charge was treated as a
class D violent felony because Mack had a prior qualifying Title 16 conviction (a
2012 conviction for trafficking PCP, hereinafter referred to as the “2012
Conviction”). Under 16 Del. C. § 4751B(1), a defendant who had a prior qualifying
Title 16 conviction would be sentenced as if convicted of a higher charge.1 In
accordance with the parties’ sentencing recommendation, the Superior Court
sentenced Mack as follows: (i) for aggravated possession, eight years of Level V
incarceration suspended after four years and 258 days for decreasing levels of
supervision; and (ii) for PABPP, eight years of Level V incarceration suspended for
one year of Level III probation. On appeal, this Court affirmed the Superior Court’s
judgment.2
(3) On February 25, 2020, Mack filed a motion for correction of illegal
sentence. He argued that his 2012 Conviction was not a prior qualifying Title 16
conviction under Section 4751B(1). The Superior Court denied the motion, finding
the 2012 Conviction was a prior qualifying Title 16 conviction under Section
4751B(1). Mack did not appeal the Superior Court’s judgment.
(4) On December 18, 2021, Mack filed another motion for correction of
illegal sentence. The Superior Court denied the motion, finding that Mack was
1
Specifically, Mack’s conviction for aggravated possession under 16 Del. C. § 4756 (a class F
felony at the time he committed the crime) meant that he would be sentenced as if convicted of
drug dealing under 16 Del. C. § 4754(3) (a class D felony). 16 Del. C. § 4751B(4)(7). Section
4751B was repealed effective December 15, 2019.
2
Mack v. State, 2019 WL 7342514 (Del. Dec. 30, 2019).
2
trying to re-litigate the issue of whether his 2012 Conviction was a qualifying
conviction and had failed to state a basis for relief. This appeal followed.
(5) We review the denial of a motion for correction of sentence for abuse
of discretion.3 To the extent a claim involves a question of law, we review the claim
de novo.4 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 its substance, or is a sentence that the judgment of conviction did not authorize.5
(6) Mack argues that his 2012 Conviction was not a qualifying conviction
under Section 4751B(1) because his incarceration or confinement for that conviction
ended more than five years before he committed the new crime of aggravated
possession. Mack also argues that his guilty plea in 2018 was not knowing,
intelligent, and voluntary. He contends that Wiggins v. State,6 in which this Court
held there was no evidence that certain chunks were part of a mixture of PCP for
purposes of the threshold weight for aggravated possession, requires reversal of his
conviction for aggravated possession.
3
Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
4
Id.
5
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
6
227 A.3d 1062 (Del. 2020).
3
(7) The 2012 Conviction was a prior qualifying Title 16 conviction under
Section 4751B(1). At the time of Mack’s crimes in September 2018, Section
4751B(1) provided that a “‘prior qualifying Title 16 conviction’ means any prior
adult felony conviction for a Title 16 offense…where the conviction was 1 of § 4752,
§ 4753, § 4754, § 4755, or § 4756 of this title…if the new offense occurs within 5
years of the date of conviction for the earlier offense or the date of termination of all
periods of incarceration or confinement imposed pursuant to the conviction,
whichever is the later date.”
(8) For the 2012 Conviction, Mack was sentenced, effective April 19,
2012, to ten years of Level V incarceration, with credit for time previously served,
suspended after two years for decreasing levels of supervision. Mack claims that his
incarceration or confinement for the 2012 Conviction ended more than five years
before he committed aggravated possession in September 2018, but admits that he
was confined for a violation of probation (“VOP”) in connection with this conviction
in October 2013. As a result of Mack’s VOP, the Superior Court sentenced him for
the 2012 Conviction, effective October 17, 2013, to seven years of Level V
incarceration, with credit for eight days previously served, suspended for seven years
of Level IV VOP Center, suspended after four months, followed by eighteen months
of Level III supervision.
4
(9) According to the information and guilty plea colloquy, Mack
committed the crime of aggravated possession in September 2018. The date of
termination of all periods of incarceration or confinement imposed pursuant to his
2012 Conviction had not expired by September 2013 as Mack contends. As set forth
above, Mack was confined for a VOP in connection with the 2012 Conviction in
October 2013, within five years of his commission of aggravated possession in
September 2018. Mack was credited with that time in the VOP sentence for his 2012
Conviction. In trying to distinguish between the time he spent at a Level IV VOP
Center versus Level V incarceration, Mack ignores that inmates are entitled to Level
V credit for time spent under the restrictive conditions of confinement at a Level IV
VOP Center.7 Thus, the 2012 Conviction was a prior qualifying Title 16 Conviction
under Section 4751B(1). The Superior Court did not err in denying Mack’s motion
for correction of illegal sentence.
(10) Mack’s claims concerning his guilty plea and Wiggins are outside the
scope of his motion for correction of illegal sentence under Superior Court Criminal
Rule 35(a). “The ‘narrow function of a Rule 35(a) motion is to permit correction of
an illegal sentence, not to re-examine errors occurring at the trial or other
proceedings prior to the imposition of sentence.’”8 In addition, this Court previously
7
Anderson v. State, 2006 WL 3931460, at *1 ()
8
Brittingham, 705 A.2d at 578 (quoting Hill v. United States, 368 U.S. 424, 430 (1962)).
5
held that Mack knowingly, intelligently, and voluntarily pleaded guilty, thereby
waiving his right to challenge any errors, even those of constitutional dimensions,
occurring before entry of his plea.9
NOW, THEREFORE, IT IS ORDERED that the Motion to Affirm is
GRANTED and the Superior Court’s judgment is AFFIRMED.
BY THE COURT:
/s/ Gary F. Traynor
Justice
9
Mack, 2019 WL 7342514, at *2.
6