Opinion
Cr. A. No. IN85-10-1782, (ID No. 85006330DI).
Submitted: November 15, 2000.
Decided: January 31, 2001.
On Defendant's Motion to Correct an Alleged Illegal Sentence — DENIED.
Willard Scott, Pro Se, P.O. Box 9561, M.P.C.J.F., Wilmington, DE 19809
OPINION AND ORDER
The Defendant filed the instant motion to correct an illegal sentence with the Court pursuant to Superior Court Criminal Rule 35(a) on November 9, 2000. That which follows is the Court's response.
FACTS AND PROCEDURAL POSTURE
The Defendant, Willard M. Scott, was convicted of Rape in the Second Degree (Attempted) on May 19, 1987. He was sentenced to fifteen years imprisonment to be suspended after ten years for five years probation. Mr. Scott subsequently violated his probation five times: on December 5, 1996, on December 5, 1997, on June 12, 1998, on September 22, 1999 and finally on October 25, 2000. The sentence imposed by the Court for the October 25, 2000 violation is the sentence at issue before the Court. On that date the Court revoked Mr. Scott's probation and sentenced him to Level Five supervision for eighteen months to be served pursuant to 11 Del. C. § 4204 (k).
Section 4204(k) empowers the court to impose a sentence that precludes ". . . any form of early release, good time, furlough, work release, supervised custody or any other form of reduction or diminution of sentence. . . ."
Mr. Scott claims that the imposition of § 4204(k) on his sentence is illegal because at the time of his original sentence, § 4204(k) did not authorize the Court to make a nonmandatory sentence mandatory. In the alternative, he alleges that the Court misapplied 11 Del. C. § 4204 (k) because that statute may only be applied to sentences greater than one year or less than the maximum available sentence. He contends that his sentence fits neither of these criteria.
DISCUSSION
The Court's Authority to Impose § 4204(k) .
Mr. Scott's claim that, due to the unavailability of § 4204(k) at the time of original sentenceing, the Court was unauthorized to impose this section upon his October 25, 2000 sentence is without merit. Mr. Scott's original sentence imposed in 1987 was a mandatory sentence. He was convicted of Rape in the Second Degree, a Class B Felony. At that time, the required sentence for a defendant convicted of a Class B Felony was three to thirty years. 11 Del. C. § 763 (1974); 11 Del. C. § 4205. Stated differently, a Class B Felony required a sentence of at least three years but not more that thirty. Moreover, at least three years is synonymous with a mandatory sentence of three years. Therefore, since the original sentence was mandatory, the Court's imposition of § 4204(k) on October 25, 2000 does not operate to convert his sentence from a nonmandatory sentence into a mandatory sentence.
In addition, Mr. Scott contends that § 4204(k) was unavailable at the time of original sentencing. Contrary to this contention however, § 4204(k) was, in fact, available to the Court, and it did authorize the Court to impose that section upon any sentence. 11 Del. C. § 4204 (k) (1974). Thus, the Court was authorized to impose a sentence upon Mr. Scott that included § 4204(k).
The Court's Application of 11 Del. C. § 4204 (k) .
Mr. Scott contends that the Court misapplied 11 Del. C. § 4204 (k) because it applied this statute to an eighteen-month sentence. He argues that § 4204(k) is applicable only to sentences of less than one year or to sentences that are the statutory maximum available for the crime.
The current version of 11 Del. C. § 4204 (k)(3), as amended on July 9, 1997, provides:
The provisions of [subsection (k)] shall be applicable only to sentences of imprisonment at Level V for 1 year or less, or to sentences of imprisonment at Level V which are equal to the statutory maximum Level V sentence available for the crime or offense.
Therefore, Mr. Scott argues, because the sentence imposed by the Court exceeds one year, but is not the maximum sentence available for the offense, the imposition of § 4204(k) was improper.
The maximum available sentence for Rape in the Second degree in 1986 was thirty years at Level Five incarceration. 11 Del. C. § 4205 (1974).
Mr. Scott's reliance upon § 4204(k)(3) is in error. The version of § 4204(k) in effect when he was originally sentenced did not include subsection (3). More specifically, § 4204(k) prior to the 1997 amendment, did not include the restriction that it could be applied only to sentences of less than one year, or alternatively the statutory maximum sentence available. Indeed, prior to its 1997 amendment, § 4204(k) applied to "any sentence of imprisonment." 11 Del. C. § 4204 (k) (1974) (emphasis added).
Mr. Scott implies that the present version of § 4204(k) is applicable to his sentence. However, it is well settled that absent clear legislative intent, the Court may not apply a statute retroactively.Hubbard v. Hubbard Brown Co., Del. Supr., 633 A.2d 345 (1993); Chrysler Corp. v. State, Del. Supr., 457 A.2d 345 (1983); and Wilson v. Triangle Oil Co. Del. Super., 566 A.2d 1016 (1989). Therefore, the Court properly sentenced Mr. Scott pursuant to the pre-1997 version of § 4204(k).
Accordingly, Mr. Scott's sentence is legal and his motion for the correction of an illegal sentence must be, and hereby is, denied.
IT IS SO ORDERED.