Opinion
No. 326, 1999.
Decided October 5, 1999.
Superior Court of the State of Delaware, in and for New Castle County, IN96-10-0764 through 0768 IN96-10-0770. Def. ID No. 9610003365.
AFFIRMED.
Unpublished Opinion is below.
ANDREW V. CHILDRESS Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 326, 1999. Supreme Court of Delaware. Submitted August 31, 1999. Decided October 5, 1999.
Superior Court of the State of Delaware, in and for New Castle County, IN96-10-0764 through 0768 IN96-10-0770. Def. ID No. 9610003365.
Before WALSH, HOLLAND and HARTNETT, Justices.
ORDER
This 5th day of October 1999, upon consideration of the appellant's opening brief and the State of Delaware's motion to affirm, it appears to the Court that:
(1) The defendant-appellant, Andrew V. Childress, has filed this appeal from an order of the Superior Court denying Childress' motion for correction of an illegal sentence. The State of Delaware has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Childress' opening brief that the appeal is without merit. We agree and affirm.
Supr. Ct. R. 25(a).
(2) After a Superior Court jury trial in September 1997, Childress was convicted of numerous drug offenses, including trafficking in cocaine and possession of a firearm during the commission of a felony. Childress was sentenced to a total of ten years at Level V imprisonment, suspended after eight years for decreasing levels of supervision. On direct appeal, Childress' conviction was affirmed.
Childress v. State, Del. Supr., 721 A.2d 929 (1998).
(3) In June 1999, Childress filed a motion for correction of sentence pursuant to Superior Court Criminal Rule 35(a) ("Rule 35(a)"). The Superior Court treated Childress' motion as one for postconviction relief under Superior Court Criminal Rule 61 ("Rule 61"). By order dated July 1, 1999, the Superior Court denied Childress' motion. This appeal followed.
(4) In his opening brief on appeal, Childress contends that the Superior Court abused its discretion when it treated his motion for correction of sentence as a motion for postconviction relief. Childress' claim is without merit.
(5) The "narrow function" of Rule 35(a) is to permit the correction of an illegal sentence. Childress' motion under Rule 35(a) did not challenge his sentence. Instead, Childress challenged his conviction for possession of a firearm during the commission of a felony. Rule 61 governs the procedure upon which a person may attack a conviction. Thus, the Superior Court correctly treated Childress' motion as a motion for postconviction relief under Rule 61.
Brittingham v. State, Del. Supr., 705 A.2d 577, 578 (1998) (quoting Hill v. United States, 368 U.S. 424 430 (1962)).
Super. Ct. Crim. R. 61(a)(1).
(6) When reviewing the Superior Court's denial of a postconviction motion pursuant to Rule 61, this Court first must consider the procedural requirements of the rule before addressing any substantive issues. Rule 61(i)(4) provides that any ground for relief that was formerly adjudicated is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice. Rule 61(i)(3) provides that any ground for relief that was not asserted in the proceedings leading to the judgment of conviction is barred unless the movant demonstrates "cause" for the failure to assert the ground and "prejudice" stemming from the alleged grievance. Rule 61(i)(5) states in pertinent part that the procedural bar in Rule 61(i)(3) shall not apply to a colorable claim that there was a miscarriage of justice because of a constitutional violation.
Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
(7) In this appeal, Childress argues that, because he did not actively employ the firearm during the drug trafficking activities, he should not have been convicted of possession of a firearm during the commission of a felony. Childress contends that his argument is supported by the United States Supreme Court decision in Bailey v. United States.
Bailey v. United States, 516 U.S. 137 (1995).
(8) We do not find that Childress' claim is supported by the Bailey decision. Bailey concerned a conviction under a federal statute which criminalized the "use" of a firearm during the commission of a drug trafficking offense. The state statute under which Childress was convicted criminalizes the "possession" of a firearm during the commission of a felony.
Id. at 138-139.
(9) Moreover, Childress' claim was considered and rejected on the merits by this Court on direct appeal. On direct appeal, Childress claimed that, because the firearm was unloaded and located under a bed in an upstairs bedroom away from the drug trafficking activities, there was insufficient evidence as a matter of law to support a conviction for possession of a firearm during the commission of a felony. In the Childress opinion, we reiterated that "a defendant can be held to possess' a firearm even if it is not found on his person." Childress has offered no reason why reconsideration of this previously adjudicated claim is warranted in the interest of justice. Consequently, the Court finds that Childress' claim is procedurally barred under Rule 61(i)(4).
Childress v. State, 721 A.2d at 931.
(10) Next, Childress claims that his conviction for possession of a firearm during the commission of a felony is in violation of the double jeopardy clause. We agree with the Superior Court that Childress' double jeopardy claim is conclusory, and it is procedurally barred under Rule 61(i)(3) and (i)(5).
(11) Childress claims that an alleged error in the Superior Court docket affected the Superior Court's decision on his motion for correction of sentence. Assuming that the docket is in error, there is no indication whatsoever that the error had any bearing on the Superior Court's decision on appeal in this Court. Childress' claim to the contrary is without merit.
According to Childress, the Superior Court docket in his case lists a motion for modification of sentence which he never filed. Indeed, the Superior Court docket in Childress' case lists a motion for modification of sentence which was purportedly filed on July 2, 1999. According to docket entry #53, the motion was "ruled as moot" on the basis that the "defendant [is] presently serving [a] sentence in [a] New Jersey prison." Neither the motion for modification of sentence nor the Superior Court's ruling on the motion appear in the Childress record.
(12) In the final pages of his brief, Childress lists several claims that he characterizes as "due process" violations. None of those claims were raised in the Superior Court, and none appear to have merit. Supreme Court Rule 8 provides that only questions which have been fairly presented to the trial court may be presented on review on appeal, unless the interests of justice require otherwise.
Childress claims that: (i) the Superior Court had a duty to inform Childress that his Rule 35(a) motion was nonconforming; (ii) Childress had a right to be heard on the motion; (iii) the Superior Court had a duty to ascertain the State's position on the motion; (iv) the Superior Court judge's signature on the July 1 decision was illegible and thus prevented Childress from filing a timely motion for reargument.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.