Opinion
No. 134, 2002
Submitted: June 17, 2002
Decided: August 7, 2002
Court Below — Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. IN00-10-0257, IN99-09-1177, IN00-08-0554.
Affirmed.
Unpublished opinion is below.
CHARLES E. SMITH (a.k.a. Edward Smith), Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 134, 2002 In the Supreme Court of the State of Delaware. Submitted: June 17, 2002 Decided: August 7, 2002 Before VEASEY, Chief Justice, BERGER and STEELE, Justices.
MYRON T. STEELE, Justice.
ORDER
This 7th day of August 2002, 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, Charles E. Smith (a.k.a. Edward Smith), claims error in the Superior Court's February 20, 2002 denial of his motion for correction of an illegal sentence. The plaintiff-appellee, State of Delaware, has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Smith's opening brief that the appeal is without merit. We agree and AFFIRM.
SUPER. CT. CRIM. R. 35(a).
SUPR. CT. R. 25(a).
(2) In February 2001, Smith pleaded guilty to Possession of Heroin with Intent to Deliver, Assault in the Second Degree, and Carrying a Concealed Deadly Weapon. He was sentenced to a total of 16 years incarceration at Level V, to be suspended after 7 years for a total of 9 years at decreasing levels of probation. In August 2001, Smith filed a motion for reduction of sentence, which the Superior Court denied. In September 2001, Smith filed a motion for postconviction relief, which the Superior Court also denied. Smith's subsequent appeal to this Court was dismissed because it was untimely. In November 2001, Smith filed a petition for a writ of habeas corpus, which the Superior Court denied.
Smith v. State, Del. Supr., No. 614, 2001, Berger, J. (Jan. 7, 2002).
(3) In his appeal, Smith claims that his sentence is illegal because: a) he was never properly arrested and charged; b) his counsel provided ineffective assistance in connection with the guilty plea and sentencing; and c) his criminal history did not warrant the sentence he received.
(4) Smith's claim of an illegal sentence is unavailing. He raised essentially the same issues he raises here in his previous unsuccessful postconviction motion. Smith may not re-litigate his Rule 61 motion by merely recasting it as a motion to correct sentence under Rule 35(a).
SUPER. CT. CRIM. R. 61.
Brittingham v. State, 705 A.2d 577, 579 (Del. 1998).
(5) It is manifest on the face of Smith's 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, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the State of Delaware's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.