Opinion
Cr.A. No. IN82-09-0053, (ID 82005725DI).
Date Assigned: September 15, 2000.
Decided: March 16, 2001.
Regarding the Defendant's Motion for Correction of an Illegal Sentence
Abdullah Karim, Unit S-1, Delaware Correctional Center, Smyrna, DE 19977, pro se.
Loren C. Myers, Chief of Appeals Division, State of Delaware Department of Justice, attorney for the State of Delaware.
OPINION AND ORDER
STATEMENT OF FACTS AND NATURE OF PROCEEDINGS
On January 5, 1983, Abdullah Karim (a.k.a. Edward Kelly) was convicted of three counts of Robbery First Degree and one count each of Robbery Second Degree, Possession of a Deadly Weapon During the Commission of a Felony and Possession of a Deadly Weapon by a Person Prohibited. The State sought to have Mr. Karim declared an habitual criminal pursuant to 11 Del. C. § 4214(b). At Mr. Karim's sentencing hearing, the prosecution presented, as evidence of one of his past convictions, a docket sheet showing that Mr. Karim entered a nolo contendere plea to a bank robbery charge in 1972. Based in part upon this evidence, he was found to be an habitual criminal and sentenced to life imprisonment without parole.
Mr. Karim asserts that the Court's reliance on the above mentioned docket sheet renders his sentence illegal because it does not contain the charge that was the basis of his plea. More specifically, he argues that in the absence of that information, the Court merely assumed that his plea was in response to the robbery charge. The Court was required instead to have the full text of his plea in order to use a prior felony conviction as the basis for imposing sentence pursuant to the habitual criminal statute. The Court therefore erred when it sentenced him in reliance on the information represented on the docket sheet alone as to the 1972 offense.
The State responds that Mr. Karim has previously litigated this issue in his 1987 federal habeas corpus litigation and is therefore barred from litigating it again. Kelly v. Redman, D.Del., C.A. No. 87-83, Farnan, J. (Sept. 23, 1987). Mr. Karim concedes that this issue was previously litigated, but asserts that the issue is not barred from being relitigated given the Delaware Supreme Court's holding in Morales v. State, Del.Supr., 696 A.2d 390 (1997). He contends that Morales has established a new standard which defines the sufficiency of the evidence needed in an habitual sentencing to establish the existence of a prior felony conviction. As applied to his case, he contends that Morales mandates a different result from that which was rendered in response to the habeas corpus petition that he filed in 1987, thereby lifting the bar to relitigation.
The Court must therefore decide whether Mr. Karim's claim is procedurally barred. If it is not so barred, the Court must decide whetherMorales retroactively renders the sentence imposed upon Mr. Karim in 1983 illegal.
DISCUSSION
The `law of the case' doctrine "bars relitigation, under Rule 35(a), of an `illegal sentence' where that issue has been previously decided by this Court." Brittingham v. State, Del.Supr., 705 A.2d 577, 579 (1998). However, where a change in the circumstances of the case subsequently develops, the Court may consider these changed circumstances to avoid injustice. Hughes v. State, Del.Supr., 490 A.2d 1034, 1048 (1985).
As stated above, the sufficiency of the docket sheet as proof of his conviction for the robbery charge was addressed by the Judge Farnan in response to Mr. Karim's 1987 habeas corpus proceeding. Kelly v. Redman, at 4. This issue having been previously litigated, absent a change in circumstances, must be barred by the `law of the case' doctrine. However, before the Court determines whether there has been a change in circumstances the Morales decision must be reviewed and a determination made that it is applicable to Mr. Karim's sentencing.
Mr. Karim reads the opinion issued in Morales to require that "the state must produce the full text of a prior conviction to enhance a sentence pursuarant [sic] to 11 Del. C. § 4214(b)." Karim Motion at 2. However, this language is simply not in the text of the opinion. The rule announced, and the standard that must be met, is that "the charge and the conviction of the prior predicate felony must match beyond a reasonable doubt." Morales at 395. The Morales Court does note that in cases where it is not clear as to whether the charge and the plea match, it may be appropriate to use the text of a guilty plea to establish continuity between the charge and the plea. It does not state that the court is required to have the text of the guilty plea before it.
Even were we to assume that Morales reads as Mr. Karim desires, that case is distinguishable from the instant situation. Briefly stated, the evidence of the prior convictions in Morales consisted of a combination of indictments, docket entries and the defendant's National Crime Information Center Record. The lower court in Morales was required to "cut and paste" all of these documents together to find the requisite continuity between the charge and the plea. What the defendant inMorales pled to was therefore unclear.
In contrast, the evidence of the connection about which Mr. Karim complains consists of a single docket sheet that unambiguously contains both the charge and the plea. Moreover, despite Mr. Karim's contention that nowhere on the docket sheet is there any indication of the charge to which he pled nolo contendere, the heading of the docket sheet clearly shows the violation as, "Bank Robbery by Intimidation, Title 18. Sec. 2113(d)." Karim Motion at Exhibit B. Because the charge and the plea are clearly contained in the same document, there is no doubt, reasonable or otherwise, regarding the charge and the resultant plea. Consequently, no additional information was need to establish Mr. Karim's liability for sentencing as an habitual offender.
The driving force behind the Morales decision is a recognition that the crime for which a defendant is charged and the crime to which he pleads guilty, may be quite different. This is why the standard of beyond a reasonable doubt is required, and why the text of the guilty plea may be required. However, in cases such as Mr. Karim's, where the charge and the plea match beyond a reasonable doubt, even in the absence of the text of the plea, the prior predicate felony is established and the sentencing court may rely on the evidence to impose the habitual sentence via § 4214.
Morales does not provide the assistance that Mr. Karim needs or desires. Therefore it is not necessary to consider whether there has been a change in circumstances or what that phrase means in the present context. Nor is it necessary as a result, to decide whether the rule announced in Morales may be retroactively applied.
CONCLUSION
The question presented by Abdullah Karim, i.e., whether this Court illegally sentenced him as an habitual criminal based in part upon the evidence presented concerning his 1972 conviction for robbery, having been previously addressed in 1987, cannot now be relitigated. The 1987 ruling was and continues to be the law of the case. Nor is that prior ruling affected by the holding in Morales v. State even if it were to retroactively applied to Mr. Karim's conviction. Accordingly, his motion to have the sentence imposed on him as an habitual criminal on January 5, 1983, declared illegal and corrected, must be, and hereby is denied.