Gary F. Traynor, Justice

ORDER

(1) In 2010, the appellant, Oscar Martinez, pleaded guilty to second-degree robbery. In accordance with the parties' plea agreement, Martinez was declared a habitual criminal and was sentenced to ten years of Level V incarceration under subsection (a) of 11 Del C. § 4214, the State's habitual criminal sentencing statute.

(2) In 2016, the General Assembly passed legislation, effective July 19, 2016, which made significant changes to § 4214. The statute, as rewritten, eliminated mandatory life sentences for habitual criminals, narrowed the list of offenses eligible for habitual criminal sentencing, and made other changes to the mandatory sentences associated with a habitual criminal designation. The new statute also included a remedial provision— § 4214(f) —which provided habitual criminals, sentenced before July 19, 2016, a one-time opportunity to petition for a modification of sentence. In 2017, when questions arose regarding the intended reach of § 4214(f), the General Assembly amended the statute to clarify that the retroactive relief available under § 4214(f) was intended to affect only habitual criminal sentences imposing the minimum-mandatory required under the statute, not discretionary sentences that exceeded the minimum-mandatory.

(3) Over the past eighteen months, Martinez has tried, repeatedly, to convince the Superior Court that he is eligible to seek a sentence modification under § 4214(f). Two such attempts—a petition for a writ of mandamus and a motion for sentence review—were denied by the Superior Court in an order issued on May 15, 2017. A third attempt—a petition for a writ of habeas corpus—was dismissed by the Superior Court in an order dated July 19, 2017. The Superior Court denied Martinez' various requests to file a petition under § 4214(f) because, among other reasons, his ten-year habitual criminal sentence for second-degree robbery exceeded the five-year minimum-mandatory sentence required for that offense under the version of § 4214(a) in effect in 2010 when Martinez pleaded guilty, and thus his sentence, under the amended statute, is considered discretionary. Martinez filed appeals from the May 15 and July 19 orders, but both appeals were dismissed as untimely filed.

(4) This appeal is from the Superior Court's March 13, 2018 denial of a motion to certify questions of law and a petition for a writ of habeas corpus, Martinez' latest attempts to obtain a sentence modification under § 4214(f). The March 13 decision also denied Martinez' fifth motion seeking a modification of sentence under Superior Court Criminal Rule 35(b). The State has filed a motion to affirm the Superior Court's judgment.

(5) Having carefully considered the parties' positions on appeal, we conclude that the Superior Court's judgment should be affirmed on the basis of, and for the reasons stated in, the court's well-reasoned decision dated March 13, 2018. The Superior Court did not err in concluding that Martinez' motion under Rule 35(b) was procedurally barred as repetitive, that Martinez had not met the requirements to request a certification of questions of law, and that he was not entitled to habeas corpus relief. To the extent Martinez used this appeal to challenge the court's orders of May 15 and July 19, 2017, his claims are outside the scope of the appeal. Martinez may not use this appeal to resurrect claims of error that could have been, but were not, raised in a timely appeal.

NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.

Attachment

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

OSCAR MARTINEZ, Petitioner,

v.

DANA METZGER, Warden, Respondent.

STATE OF DELAWARE,

v.

OSCAR MARTINEZ, Defendant.

C.A. No. N18M-02-318 PRW

ID No. 0905009708

Submitted: February 26, 2018

Decided: March 13, 2018

ORDER DENYING MARTINEZ'S MOTION UNDER RULE 35, MOTION TO CERTIFY QUESTIONS OF LAW, AND PETITION FOR A WRIT OF HABEAS CORPUS

This 13^th day of March, 2018, upon consideration of Defendant and Petitioner Oscar Martinez's Motion Under Superior Court Criminal Rule 35 (D.I. 73) , Motion To Certify Questions Of Law (D.I. 71), and Petition for Writ of Habeas Corpus (D.I. 75), and the record in this case, the Court finds the following:

(1) On September 14, 2009, Oscar Martinez, initially indicted on the charge of Robbery in the First Degree, pleaded guilty to the lesser included offense of Robbery in the Second Degree. He did so in exchange for the State's withholding of an insurmountable habitual criminal sentencing petition and joined with the State in a favorable sentencing recommendation (ten years of imprisonment under then-extant 11 Del C. § 4214(a) ). His sentencing occurred a few months later, on January 15, 2010, after a pre-sentence investigative report was prepared and the State had filed a habitual criminal petition. Martinez was sentenced to that which he and the State had agreed upon: ten years at Level V to be served under the provisions of the then-extant Habitual Criminal Act. As required by law, he also received a six-month term of probation to follow his imprisonment. Martinez's sentencing order notes that his habitual criminal sentence was effective on May 13, 2009. Martinez is now incarcerated at the James T. Vaughn Correctional Center serving that sentence.

Martinez's Rule 35 Motion (D.I. 73)

(2) Martinez has filed a motion asking the Court to correct, reduce, or modify his sentence.

(3) His request to reduce or modify is governed by this Court's Criminal Rule 35(b). When considering such an application under Rule 35(b), the Court must address any applicable procedural bars before turning to its merits.

(4) Martinez has previously filed numerous unsuccessful applications to reduce or modify his your sentence. As our Supreme Court and this Court have consistently held, Rule 35(b) prohibits consideration of repetitive requests for sentence reduction or modification. There is no exception to the repetitive motion bar. And so, the Court must DENY Martinez's request to reduce or modify his sentence under Rule 35(b).

(5) When suggesting he is due sentence "correction," Martinez cites Criminal Rule 35(a). He says he is due Rule 35(a) relief "because of the incompeten[ce] and ineffectiveness of [his trial/plea] attorney" in not arguing that Martinez had "used drugs and physically commit[ted] the crime of Robbery but [ ] did not have the mental capacity to knowingly do[ ] [his] crime."

(6) Criminal Rule 35(a) permits this Court to correct an illegal sentence "at any time." Relief under Rule 35(a) is available when, inter alia, the sentence imposed: exceeds the statutorily-authorized limits; 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. Martinez's claims and sentence meet none of those criteria. As such, there is no illegality to his sentence to be corrected and the Court must DENY Martinez's request under Rule 35(a).

Martinez's Motion to Certify Questions of Law (D.I. 71)

(7) Martinez has also asked the Court to certify questions of law to the Delaware Supreme Court on the constitutionality and application of recently-enacted 11 Del. C. § 4214(f). In sum, he says the statute "discriminates towards [a] certain class of habitual offenders."

(8) The Superior Court may, in rare instances, certify questions of law to the Delaware Supreme Court in accordance with Article IV, Section 11(8) of the Delaware Constitution and Delaware Supreme Court Rule 41.

(9) There are certain requirements for such a request to be made by this Court. First, the Court must certify that "there exist important and urgent reasons for an immediate determination by th[e Supreme] Court of the questions certified." That the Court cannot do. Even if the Court could, "[a] certification will not be accepted if facts material to the issue certified are in dispute." And here there are disputed material facts. In turn, the Court must DENY Martinez's request to certify questions of law to the Delaware Supreme Court.

Martinez's Petition for a Writ of Habeas Corpus (D.I. 75)

(10) Martinez has also filed the instant petition for a writ of habeas corpus in this Court. Martinez appears to contend that this Court should grant his petition for a writ of habeas corpus because he has continuously and unsuccessfully argued that he is due relief under 11 Del. C. § 4214(f). This is no ground for habeas corpus relief.

(11) In Delaware, the writ of habeas corpus provides relief on a very limited basis. Pursuant to § 6902(1) of Title 10, a writ of habeas corpus may not be issued to any person "committed or detained on a charge of treason or felony, the species whereof is plainly and fully set forth in the commitment." Consequently, no prisoner whose commitment is regular on its face can obtain release through a state habeas corpus petition. The record in this case reflects that, after a guilty plea, Martinez was sentenced to serve ten years of Level V incarceration followed by probation. To date, Martinez has served less than nine years of that sentence. Accordingly, as there is no evidence that this Court lacked jurisdiction to sentence Martinez or that his commitment is irregular on its face, he is not entitled to habeas corpus relief. The Court must, therefore, DENY Martinez's Petition for a Writ of Habeas Corpus.

SO ORDERED this 13th day of March, 2018.

/s/

Paul R. Wallace, Judge

Original to Prothonotary

cc: Joseph S. Grubb, Deputy Attorney General

Jason W. Staib, Deputy Attorney General

Oscar Martinez, pro se