Opinion
No. 496, 2011
02-21-2012
BENJAMIN A. McMILLAN, Defendant -Appellant, v. STATE OF DELAWARE, Plaintiff -Appellee.
Court—Superior Court of the State of Delaware in and for Kent County Cr. ID No. 0608002639
Before STEELE, Chief Justice, HOLLAND and BERGER, Justices
ORDER
This 21st day of February 2012, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The defendant-appellant, Benjamin A. McMillan, filed an appeal from the Superior Court's August 15, 2011 order denying his motion for correction of sentence pursuant to Superior Court Criminal Rule 35(a). The plaintiff-appellee, the State of Delaware, has moved to affirm the Superior Court's judgment on the ground that it is manifest on the face of the opening brief that the appeal is without merit. We agree and affirm.
Supr. Ct. R. 25(a).
(2) The record before us reflects that, in March 2007, McMillan, with the assistance of counsel, pleaded guilty to Trafficking in Cocaine and Tampering With Evidence. McMillan was sentenced to a total of twenty years at Level V incarceration, to be suspended after eighteen years for decreasing levels of supervision. As part of the plea agreement, the State dismissed a violation of probation pending against McMillan in connection with a separate trafficking conviction.
(3) Also as part of the plea agreement, McMillan stipulated that he was eligible for sentencing as a habitual offender on his trafficking conviction pursuant to Del. Code Ann. tit. 11, §4214(a). In lieu of a formal motion by the State, the prosecutor recited McMillan's previous criminal history and McMillan acknowledged that it was correct. The Superior Court judge then declared McMillan a habitual offender and proceeded with sentencing.
(4) In his appeal from the Superior Court's denial of his motion for correction of sentence, McMillan claims that his trafficking sentence is illegal because a) the State failed to file a motion to have him declared a habitual offender; and b) the Superior Court failed to hold a separate hearing on the motion.
(5) The purpose of Rule 35(a) is to permit correction of a sentence that a) exceeds the statutory limits; b) violates double jeopardy; c) is ambiguous or internally inconsistent; or d) omits a statutorily-required term.The record does not support, nor does McMillan even argue, that his trafficking sentence exceeds the statutory limits, violates double jeopardy, is ambiguous or omits a required term. As such, McMillan is not entitled to relief under Rule 35(a).
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
(6) Moreover, this Court previously has held that a defendant who voluntarily admits his eligibility for habitual offender status at a guilty plea hearing waives any right to a separate habitual offender hearing. The transcript of the plea hearing in this case clearly reflects that McMillan's admission of his eligibility for habitual offender status, like his admission of guilt, was knowing and voluntary. As such, there is no basis for McMillan's claim of entitlement to a separate hearing on a habitual offender motion filed by the State.
Cammile v. State, Del. Supr., No. 481, 2007, Ridgely, J. (Apr. 30, 2008); Loncki v. State, Del. Supr., No. 320, 2006, Berger, J. (Jan. 9, 2007).
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(7) It is manifest on the face of the opening brief that this appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent that judicial discretion is implicated, there was no abuse of discretion.
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:
Randy J. Holland
Justice