Opinion
No. 467, 2011
02-15-2012
TIMOTHY D. JONES, SR., Defendant-Appellant, v. STATE OF DELAWARE, Plaintiff-Appellee.
Court—Superior Court of the State of Delaware, in and for New Castle County Cr. ID 0409014719
Before STEELE, Chief Justice, JACOBS, and RIDGELY, Justices.
ORDER
This 15th day of February 2012, upon consideration of the appellant's opening brief, the State's motion to affirm, and the record below, it appears to the Court that:
(1) The defendant-appellant, Timothy Jones, filed this appeal from the Superior Court's denial of his motion for correction of sentence pursuant to Superior Court Criminal Rule 35(a). The State has moved to affirm the judgment below on the ground that it is manifest on the face of Jones' opening brief that his appeal is without merit. We agree and affirm.
(2) The record reflects that Jones pled guilty in April 2005 to first degree assault, first degree reckless endangering, and possession of a deadly weapon during the commission of a felony (PDWDCF). The Superior Court sentenced him as follows: (i) fifteen years at Level V incarceration to be suspended after serving seven years for decreasing levels of supervision on the assault charge; (ii) five years at Level V incarceration, suspended entirely for probation, on the reckless endangering charge; and (iii) five years at Level V incarceration on the PDWDCF charge.
(3) Jones did not file a direct appeal. Instead, he filed multiple unsuccessful motions seeking to modify or reduce his sentence. In July 2011, Jones filed a motion for correction of illegal sentence under Superior Court Criminal Rule 35(a) on the ground that he could not legally be sentenced for both first degree assault and PDWDCF. The Superior Court denied Jones' motion on the alternative grounds that it was untimely, repetitive, and without merit. This appeal followed.
(4) Jones argues in his opening brief on appeal that his sentences for assault and PDWDCF are illegal because, in essence, the multiple sentences violate constitutional principles against double jeopardy. Jones contends that the essential elements of the crime of assault are included in the definition of the crime of PDWDCF.
(5) We disagree with Jones' argument. It is a matter of settled Delaware law that "where the General Assembly intended, as ... it did in § 613(1) [first degree assault] and § 1447 [PDWDCF], to impose multiple punishments for two offenses not satisfying the Blockburger test," the Superior Court may impose consecutive sentences without violating double jeopardy principles. Accordingly, Jones' separate sentences for assault and PDWDCF are entirely legal. The Superior Court did not err in denying his motion for correction of sentence.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
BY THE COURT:
Henry duPont Ridgely
Justice
Hunter v. State, 430 A.2d 476, 481 (Del. 1981) (citations omitted). The "Blockburger" test provides that where the same criminal act constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each statute requires proof of a fact which the other does not. See Blockburger v. United States, 284 U.S. 299, 304 (1932).