Opinion
I. D. No. 0403022047.
May 18, 2007.
May 24, 2007.
On Defendant's Motion for Correction of Illegal Sentence DENIED.
Brian J. Robertson, Esquire Deputy Attorney General Department of Justice Wilmington, Delaware.
Lafayette E. Miller S.B.I. No. 345130 Delaware Correctional Center Smyrna, Delaware.
ORDER
Dear Mr. Robertson and Mr. Miller:
Before the Court is Defendant's motion for correction of illegal sentence pursuant to Superior Court Criminal Rule 35(a). Defendant was convicted of a crime in New Jersey and notes that New Jersey law does not classify the offense as violent. He states that the New Jersey definition should apply when imposing sentence under Delaware law, and that the prior conviction should not serve as an aggravating circumstance to increase his sentence. Because Defendant's reliance on New Jersey's definition of a violent offense is misplaced, the motion is DENIED.
Defendant was sentenced to six years at Level V incarceration on December 10, 2004 for multiple offenses, including two counts of Possession of a Firearm by a Person-Prohibited. The six years constituted a minimum mandatory sentence of three years on each charge because of Defendant's prior conviction for possession with intent to distribute cocaine in New Jersey. The Defendant claims the sentence is illegal and notes that drug offenses are not considered violent offenses within the State of New Jersey.
Defendant's reliance on New Jersey's definition of a violent offense is without merit. The relevant inquiry is whether the offense is considered violent for the purposes of sentencing pursuant to 11 Del. C. § 1448(e). Because the Defendant was sentenced in Delaware, and Delaware law defines possession with intent to distribute as a violent felony, an inquiry into New Jersey's definitions is unnecessary.
"For the purposes of this subsection, `violent felony' means any felony so designated by § 4201(c) of this title, or any offense set forth under the laws of the United States, any other state or any territory of the United States which is the same as or equivalent to any of the offenses designated as a violent felony by § 4201(c) of this Title."
11 Del. C. § 4201(c) (classifying possession with intent to distribute as a violent felony).
Because Defendant was convicted of the New Jersey equivalent of possession with intent to deliver, which is a violent felony in Delaware, the sentence is not illegal. Accordingly, Defendant's motion for correction of illegal sentence is DENIED.
IT IS SO ORDERED.