IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) I.D. No. 30901716DI
) Cr. A. No. IN89-03-1597
BENJAMIN WHITEMAN, )
Defendant. )
Submitted: November 12, 2021
Decided: December 1, 2021
ORDER
Upon Defendant Benjamin Whiteman’s Motion for Correction of Sentence,
DENIED.
This 1st day of December, 2021, upon consideration of the Defendant
Benjamin Whiteman’s Motion for Correction of Sentence (D.I. 165) and the record
in this matter, it appears to the Court that:
(1) In March 1989, a New Castle County grand jury indicted Mr. Whiteman
for three counts of Unlawful Sexual Contact in the Second Degree, one count of
Unlawful Sexual Penetration in the Third Degree, and one count of Tampering with
a Witness.1
(2) These multiple charges arose from the following circumstances
previously recounted by the Delaware Supreme Court:
In February 1989, Whiteman was living at the home of the
parents of two young girls-one age eight, the other age three. On
1
D.I. 1.
February 19, the parents of the two girls went out to dinner,
leaving the children at home with Whiteman. After the parents
left, Whiteman and the two girls began watching television.
Whiteman asked the older girl to sit on the couch next to him.
He then began to rub her leg. Next, he lifted her robe and placed
his finger in her vagina. Whiteman then went over to the younger
girl and inserted his finger in her vagina. Whiteman threatened
to harm the older girl if she told anyone what happened. 2
(3) By February 1989, Mr. Whiteman had already been declared a habitual
criminal under the provisions of 11 Del. C. Section 4214(a). That happened when
he was convicted of second-degree burglary less than two years earlier.3 But at that
earlier burglary sentencing, he was spared the life term the judge could have imposed
and was instead sentenced to a term of years. 4
(4) On August 17, 1989, Mr. Whiteman was convicted, following a jury
trial in this Court, of a single count of Unlawful Sexual Penetration Third Degree.5
2
Whiteman v. State, 1991 WL 12112, at *1 (Del. Jan. 11, 1991).
3
See Order, State v. Benjamin Whiteman, ID No. 30604628DI (Del. Super. Ct. Jun. 19, 1987)
(Order declaring Mr. Whiteman to be a habitual criminal under 11 Del. C. § 4214(a)) (D.I. 9);
DEL. CODE ANN. tit. 11, § 4214(a) (1986) (Providing that a person who had been thrice previously
convicted of a felony and was thereafter convicted of another felony could be declared a habitual
criminal.).
4
See Order, State v. Benjamin Whiteman, ID No. 30604628DI (Del. Super. Ct. Jun. 19, 1987)
(Striking proposed language imposing a life sentence under 11 Del. C. § 4214(a) from State’s
proposed order declaring Mr. Whiteman a habitual criminal offender.); Sentencing Order, State v.
Benjamin Whiteman, ID No. 30604628DI (Del. Super. Ct. Jun. 19, 1987) (Imposing three years of
unsuspended imprisonment effective January 5, 1987, with an additional 89 days of credit for time
previously served.); DEL. CODE ANN. tit. 11, § 4214(a) (1986) (Providing that upon sentencing a
person who was declared a habitual criminal under that provision “the Court in which such fourth
or subsequent conviction is had, in imposing sentence, may, in its discretion, impose a life sentence
upon the person so convicted.”) (emphasis added).
5
D.I. 7.
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His sentencing occurred about two months later, after a pre-sentence investigative
report was prepared and the State had filed a habitual criminal petition on the lone
sexual penetration conviction.6 For that felony sexual assault conviction,
Mr. Whiteman was sentenced to a life term of imprisonment to be served under the
provisions of the then-extant Habitual Criminal Act. 7 Mr. Whiteman’s sentencing
order notes that his habitual criminal sentence was effective on March 15, 1989, and
is to be served consecutive to any other sentence he was then serving. 8
(5) Since that sentencing, Mr. Whiteman has barraged the courts with
attacks on his conviction and life sentence.9 One particular aspect of this litigation
history, too, has been previously recounted by the Delaware Supreme Court:
In 1989, more than a quarter century ago, the appellant,
Benjamin Whiteman, was sentenced to life imprisonment as a
habitual offender. Since then, Whiteman has filed multiple
repetitive motions arguing that his habitual offender sentence is
illegal because it was imposed in an illegal manner. This Court
has affirmed the Superior Court’s denial of all of Whiteman’s
challenges to his sentence. In 2013, we held that Whiteman was
foreclosed from asserting a particular sentencing claim because
6
D.I. 14.
7
Sentencing Order, State v. Benjamin Whiteman, ID No. 30901716DI (Del. Super. Ct. Oct. 27,
1989) (D.I. 15). See Crosby v. State, 824 A.2d 894, 897-99 (Del. 2003) (Explaining the history of
Delaware’s Habitual Criminal Act and the effect of a life sentence for an inmate like Mr.
Whiteman).
8
Id.
9
See Order, State v. Benjamin Whiteman, ID No. 30901716DI (Del. Super. Ct. Apr. 15, 2021)
(D.I. 163) (in its order denying Mr. Whiteman’s last Rule 35(a) motion earlier this year, this Court
noted that was his “twelfth motion under either Rule 35 or 61”) (emphasis in original).
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our prior decisions regarding the 1989 sentence constituted the
law of the case. And in a decision from 2015, we stated that:
We will not continue to invest scarce judicial resources
in addressing Whiteman’s repetitive and frivolous
claims. In the future, any appeal or writ filed by
Whiteman challenging the legality of his habitual
offender sentence will be subject to involuntary
dismissal without prior notice under Supreme Court
Rule 29(c).10
And the Supreme Court held further:
Whiteman’s untimely, repetitive, and frivolous filings constitute
an abuse of the judicial process. In the future, unless leave to
proceed is granted by the [Delaware Supreme] Court, Whiteman
is enjoined from proceeding in the [Delaware Supreme] Court on
any claim related to his 1989 sentence. 11
(6) This latest application is yet one more where Mr. Whiteman argues, in
substance, that his habitual offender sentence was imposed in an illegal manner.12
And just as it does with any other type of Rule 35 application, when considering a
motion for sentence correction under Rule 35(a), “this Court addresses any
applicable procedural bars before turning to the merits.”13
10
Whiteman v. State, 2017 WL 961804, at *1 (Del. Mar. 10, 2017).
11
Id.
12
See Walley v. State, 2007 WL 135615, at *1 (Del. Jan. 11, 2007) (a claim that Court failed to
hold a proper habitual offender status hearing is a claim that the movant’s sentence was imposed
in an illegal manner).
13
See State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015) (When considering requests for
sentence modification under Rule 35(b), “this Court addresses any applicable procedural bars
before turning to the merits.”); see also State v. Culp, 152 A.3d 141, 145 (Del. 2016) (holding that
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(7) Under this Court’s Rule 35(a), such a claim is required to be asserted
via a motion for correction brought within 90 days of the imposition of the
sentence.14 So, if for no other reason—of which there are plenty—because
Mr. Whiteman did not assert this latest iteration of his sentencing claim in a timely
fashion, it may not be considered now.15
(8) NOW, THEREFORE, IT IS ORDERED that Mr. Whiteman’s
application claiming that his habitual criminal offender sentence was imposed in an
illegal manner and must be corrected is procedurally barred under this Court’s
Rule 35(a) and must be DENIED.
Paul R. Wallace, Judge
Original to Prothonotary
cc: Kathryn A.C. van Amerongen, Esquire
Annemarie H. Puit, Chief Prosecutor, NCCo.
Gregory E. Smith, Deputy Attorney General
this Court abused its discretion when it considered inmate’s Rule 35 motion that was barred both
as repetitive and as untimely).
14
Super. Ct. Crim. R. 35(a) (“The court . . . may correct a sentence imposed in an illegal manner
within the time provided herein for the reduction of sentence.”); Super. Ct. Crim. R. 35(b)
(providing that a sentence reduction motion must be filed within 90 days after the sentence is
imposed).
15
See Brown v. State, 2020 WL 135615, at *1 (Del. Jan. 11, 2007) (holding that when an inmate
failed to file a sentence correction motion to prosecute his claim that this Court failed to hold a
separate habitual criminal offender status hearing within 90 days of the imposition of his habitual
criminal sentence he was foreclosed from making such argument years later); Walley, 2007 WL
135615, at *1 (same).
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