Opinion
Cr. ID No. 92010166.
Submitted: July 26, 2010.
Decided: August 31, 2010.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR CORRECTION OF SENTENCE PURSUANT TO RULE 35(a) SHOULD BE DENIED.
Paul Wallace, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Mr. Arthur Govan, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
OPINION
This 31th day of August 2010, upon consideration of Defendant's Motion for Correction of Sentence Pursuant to Rule 35(a), it appears to the Court that:
1. After a jury trial on June 12, 1993, Defendant Arthur Govan was found guilty of two counts of Murder First Degree, two counts of Felony Murder, five counts of Possession of a Deadly Weapon during the Commission of a Felony, one count of Conspiracy First Degree, and one count of Burglary First Degree.
2. Defendant was sentenced to two life sentences for the Murder First Degree Convictions, two life sentences for the Felony Murder convictions, five twenty-year terms for the weapons violations, ten years for the Burglary First Degree conviction, and five years for the Conspiracy conviction.
3. Defendant's convictions and sentences were affirmed on direct appeal.
Govan v. State, 1995 WL 48359 (Del.Supr. 1995).
4. Defendant's subsequent applications for state postconviction relief and federal habeas relief were denied.
See, In the Matter of the Petition of Arthur Govan for a Writ of Mandamus, 2000 WL 975063 (Del.Supr. 2000), citing, Govan v. State, 1996 WL 69821 (Del.Supr. 1996); Govan v. Snyder, et al., C.A. No. 96-156-RRM (February 4, 1997)(Order).
5. On May 28, 2002, Defendant filed a motion for correction of sentence which was denied on June 20, 2002. Defendant appealed the decision, and the decision was affirmed on August 30, 2002.
Superior Court Docket No. 115.
Govan v. State, 2002 WL 2017233 (Del.Supr. 2002).
6. On January 13, 2003, Defendant again filed a motion for modification of sentence which was denied on April 16, 2003. Defendant appealed, and the decision was affirmed on September 24, 2003.
Superior Court Docket No. 122.
Govan v. State, 2003 WL 22227548 (Del.Supr. 2003).
7. On January 5, 2005, Defendant filed another motion for postconviction relief. The motion was summarily dismissed on February 16, 2005. Defendant appealed, and the appeal was dismissed on May 19, 2005.
Superior Court Docket No. 130.
8. A fourth motion for postconviction relief was relief was filed on March 9, 2006. The motion was deemed procedurally barred and, therefore, dismissed on March 14, 2006. On appeal, on November 29, 2007, the Delaware Supreme Court remanded the case to the Superior Court to reconsider Defendant's fourth postconviction relief motion in light of the Supreme Court's recent decision in Chao v. State, 931 A.2d 1000 (Del. 2007).
Superior Court Docket No. 133.
Superior Court Docket No. 136.
9. By Order dated August 15, 2008, the Superior Court determined that the Supreme Court's recent decisions in Williams and Chao were applicable and that Defendant's convictions for two counts of first degree felony murder must be vacated. On November 25, 2009, Defendant's sentence was modified. The felony murder convictions and the associated weapons convictions were dismissed.
Williams v. State, 818 A.2d 906 (Del. 2006).
Chao v. State, 931 A.2d 1000 (Del. 2007).
Superior Court Docket No. 142.
10. As of November 25, 2009, Defendant's sentence, as modified, required Defendant to serve two life sentences for the Murder First Degree convictions, three twenty-year terms for the weapons violations, ten years for the Burglary conviction, and five years for the Conspiracy conviction. Consequently, Defendant's sentence as modified requires him to serve two life sentences without parole plus an additional 75 years imprisonment.
November 25, 2009 Modified Sentence Order; Superior Court Order dated November 25, 2009 denying Defendant's Motion for Postconviction Relief at paragraph 8 setting forth Defendant's sentence as modified.
11. On or about May 4, 2009, Defendant again filed a motion for postconviction relief, which was denied by the Superior Court on November 25, 2009. On appeal, by Order dated February 5, 2010, the denial was affirmed by the Delaware Supreme Court.
Superior Court Docket No. 146.
Govan v. State, 2010 WL 424235 (Del.Supr.).
12. On June 8, 2010, Defendant filed the subject motion for correction of illegal sentence pursuant to Superior Court Criminal Rule 35(a). In the subject motion, Defendant challenges his sentences for his weapons violations and his sentence for his burglary first degree conviction.
13. As the Delaware Supreme Court already noted in a prior motion filed by Defendant seeking a correction of his sentence, Defendant's issues regarding his sentences on the weapons offenses does not appear to be ripe for consideration in light of the fact that he is serving life sentences without parole. Defendant must first serve his life sentences before he begins serving the sentences on the weapon convictions. Because Defendant is unlikely to ever serve those sentences, he does not appear to present an "actual controversy." Delaware courts are not required to expend judicial resources to answer questions that have no significant current impact.
Govan v. State, 2003 WL 22227548, at *1 (Del.Supr.)
Id.
14. Turning to the subject motion, Defendant must first serve his two life sentences for his two Murder First Degree convictions before he begins serving his sentences on the weapons and burglary convictions. Since it is unlikely that Defendant will ever serve the sentences on the weapons and burglary convictions, the issues presented herein related solely to his weapons and burglary convictions, do not appear to be ripe for consideration at this time.
15. In any event, even if the issues raised by Defendant are considered at this time, they are without merit.
16. It is well-established that under Rule 35(a), a motion for correction of sentence is designed to address only illegal sentences — that is, sentences outside the statutory limits, sentences that violate double jeopardy, sentences that are ambiguous or internally contradictory, or sentences that omit a statutorily required term.
Ramirez v. State, 2010 WL 3027028 (Del.Supr.); Marvel v. State, 2008 WL 1813171 (Del.Supr.).
17. In his first ground, Defendant contends that his sentence is illegal because he should not have been convicted of a separate weapons offense for each of the underlying felonies committed. Defendant contends that he should have been convicted of only one weapons offense under 11 Del. C. § 1447 rather than multiple offenses under the same statute.
Defendant incorrectly contends that there remains five weapons convictions and sentences. Two of those convictions were dismissed on November 29, 2009, after the underlying felony murder convictions were dismissed. Consequently, there remains three weapons convictions and sentences.
18. It is initially noted that Defendant has already raised issues regarding his sentences on the weapons offenses in his prior motion for correction of sentence. The sentences have already been addressed and upheld.
See, Govan v. State, 2003 WL 22227548 (Del.Supr. 2003).
19. Moreover, the Delaware Supreme Court has made it clear that there can be a separate conviction for a deadly weapon offense for each felony the defendant committed while in possession of a deadly weapon. The Delaware Supreme Court determined that under 11 Del. C. § 1447, separate convictions for a deadly weapons offense, for each felony the defendant committed while in possession of a deadly weapon, is consistent with the deterrence goal of the statute and such multiple weapon convictions are supported by the statute's plain language. The multiple sentences do not subject the Defendant to double punishment for the same offense. The three separate weapons convictions for each underlying felony Defendant committed while in possession of a deadly weapon, does not subject Defendant to double punishment for the same offense. Defendant was properly convicted of the three weapons offenses.
Robertson v. State, 630 A.2d 1084, 1093 (Del.Supr. 1993) (Defendants were properly convicted of five weapons offenses for each of the five underlying offenses which included four counts of murder in the first degree and one count of robbery in the first degree); Williamson v. State, 707 A.2d 350, 363 (Del.Supr. 1998).
Id.
20. Turning to Defendant's second ground, Defendant challenges his sentence on his Burglary First Degree conviction. Defendant received a 10 year sentence but contends that his sentence is illegal and that he should have received the minimum sentence of 2 years.
21. In Delaware, there is no statutory or constitutional right to challenge a sentence solely on the basis that it exceeds SENTAC sentencing guidelines. As long as a Level V sentence is within the statutory limits, a defendant is not entitled to relief under Rule 35(a).
Dennison v. State, 2006 WL 1971789 (Del.Supr. 2006);
22. In its Sentencing Decision, the court held: "I find that the aggravating circumstances do not outweigh the mitigating circumstances and I will therefore sentence Arthur Govan to consecutive terms of life imprisonment for each of the murder counts on which he was convicted. Because he is susceptible to manipulation into criminal acts, I will also impose the maximum sentence on each of the other counts."
September 7, 1993 Sentencing Decision, at pg. 28.
23. A defendant does not have any automatic entitlement to receive the minimum sentence for an offense. The sentencing court articulated why this Defendant was to receive the maximum sentence for each of his convictions. Defendant's sentence was proper and permissible.
24. Defendant was sentenced to 10 years on the Burglary First Degree conviction. As long as a Level V sentence is within the statutory limits, a defendant is not entitled to relief under Rule 35(a). The 10 year sentence was within the statutory limits for a conviction of Burglary First Degree, 11 Del. C. § 826, a Class C Felony. Defendant is not entitled to relief under Rule 35(a).
For all of the foregoing reasons, Defendant's Motion for Correction of Sentence should be denied.
IT IS SO RECOMMENDED.