Opinion
Case No. 70008668DI.
July 23, 2008.
Loren C. Meyers, Deputy Attorney General, Office of the Attorney General, Wilmington, DE.
Mr. Franklin C. Foraker, Delaware Correctional Center, Smyrna, DE.
Dear Ms. Meyers and Mr. Foraker,
Before the Court is a Rule 35 Motion for Correction of an Illegal Sentence and a Motion to Compel, both filed by the Defendant, Franklin Foraker. Defendant was convicted of Conspiracy and First Degree Murder in 1975. The facts — as they appear in the Supreme Court decision affirming his conviction — are that he and his then girlfriend picked up the victim (Margaret Essick), strangled her in the car while they were in Delaware, and then threw her body over a bridge into a body of water in Maryland. The facts as they appear in the above-cited case do not specify whether the victim died as a result of the strangulation or whether she died of trauma/drowning from being thrown over the bridge.
Foraker v. State, 394 A.2d 208 (Del. 1978).
Defendant now claims that an autopsy report indicates that the Defendant had water in her lungs, suggesting that she was alive when she was thrown into the river. Defendant claims that this evidence shows that the murder was committed in Maryland, not Delaware. Accordingly, he argues that his sentence is illegal because the State did not have territorial jurisdiction over the offense and the State withheld exculpatory evidence from him at trial.
Defendant raised the issue of territorial jurisdiction in his appeal to the Supreme Court, and the Court held that the contention is without merit because one of the State's witnesses stated "that the killing occurred on Delaware Route 273 outside the city limits of Newark Delaware, and within the State Boundaries."
Id. at 213.
In Defendant's Motion to Compel, he requests the Court to enter an order compelling the State to produce the autopsy report or, alternatively, to expand the record of the proceedings to include the report.
ANALYSIS
As the State correctly argues in its Response, Rule 35 is not the appropriate procedural mechanism for the claims set forth in Defendant's Motion. Although titled a Motion to Correct an Illegal Sentence, Defendant is actually challenging the underlying conviction. A motion filed under Rule 35(a) must be "limited to alleged errors within the sentence itself, i.e., the sentence exceeds the statutory limits, violates double jeopardy, is ambiguous or inconsistent, or omits a required term. A motion under Rule 35(a) is not an appropriate means to argue alleged errors in the underlying conviction."
Marvel v. State, 947 A.2d 1122 (Table) (Del. 2008).
Here, Defendant does not allege any error or illegality with the sentence itself. Therefore, Defendant's Motion for Correction of an Illegal Sentence is DENIED. By virtue of the Court's decision on Defendant's Rule 35 Motion, Defendant's Motion to Compel is rendered moot.
IT IS SO ORDERED.