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holding that the defendant, by pleading guilty, had waived any argument that his sentence was illegal because the parties agreed that the defendant would serve separate sentences for aggravated possession and drug dealing- even though those convictions would have merged for sentencing purposes had the defendant been found guilty after a trial
Summary of this case from Belair v. StateOpinion
No. 618 2014
08-26-2015
Francisco Lanzo, Defendant Below, Appellant, v. State of Delaware, Plaintiff Below, Appellee.
ORDER
Collins J. Seitz, Jr., Justice
This 28th day of August 2015, upon consideration of the parties' briefs and the record below, it appears to this Court that:
(1) Francisco Lanzo pled guilty to conspiracy in the second degree, aggravated possession, and two counts of drug dealing in a Tier 4 quantity on July 22, 2014. The Superior Court sentenced Lanzo on October 24, 2014 to five years at Level V for the first count of drug dealing in a Tier 4 quantity, ten years at Level V, suspended after three years for seven years at level IV, suspended after six months for eighteen months at Level III for the second count of drug dealing in a Tier 4 quantity, two years at Level V for aggravated possession, and two years at Level V, suspended for one year at Level II for conspiracy in the second degree.
App. to Opening Br. at 13–19 (Plea Colloquy).
App. to Opening Br. at 30 (Sentencing Transcript).
(2) Lanzo appeals his sentence. He argues the Superior Court's sentencing decision violated the double jeopardy protections of the Fifth Amendment to the United States Constitution by imposing upon Lanzo multiple punishments for the same offense. Specifically, he contends the Fifth Amendment requires that his conviction on Count I of the indictment for drug dealing in a Tier 4 quantity, and his conviction on Count II for aggravated possession, be merged for purposes of sentencing.
Opening Br. at 8–11. The Double Jeopardy Clause of the Fifth Amendment “guarantees three protections. ‘It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ ” Chao v. State, 604 A.2d 1351, 1360 (Del.1992) (quoting State v. Cook, 600 A.2d 352, 354 (Del.1991)).
Opening Br. at 8–11.
(3) Lanzo did not raise his double jeopardy argument in the court below. We therefore review only for plain error. It is well established that a voluntary guilty plea waives any claim of a double jeopardy violation. Lanzo knowingly and voluntarily pled guilty to all of the foregoing offenses. He does not claim otherwise. Lanzo also understood that, according to his plea agreement, the State's sentence recommendation would be the same, regardless of the makeup of the final charges in the plea agreement. Lanzo has failed to meet his burden of proving plain error.
Williams v. State, 796 A.2d 1281, 1284 (Del.2002).
Melton v. State, 74 A.3d 654, 2013 WL 4538071, at *1 (Del. Aug. 22, 2013) (Table); Roten v. State, 70 A.3d 206, 2011 WL 6916540, at *1 (Del. Dec. 28, 2011) (Table); Benge v. State, 945 A.2d 1099, 1101 (Del.2008); Bowers v. State, 933 A.2d 1249, 2007 WL 2359553, at *1 (Del. Aug. 20, 2007) (Table) (citing Downer v. State, 543 A.2d 309, 312–13 (Del.1988)).
NOW, THEREFORE IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.