Opinion
ID#: 0010023522
Submitted: October 29, 2003
Decided: November 7, 2003
ORDER
Upon Defendant's Motions For Post conviction Relief and Reduction of Sentence
On September 13, 2001, Defendant pleaded guilty to violating 11 Del. C. § 2113, which concerns noncompliance with conditions of release. Consistent with Defendant's plea agreement and the statute's specific penalty provision, Defendant was sentenced to five years in prison, suspended for probation. Now, through motions filed under Superior Court Criminal Rules 35 and 61, Defendant contends that his sentence cannot exceed two years. The maximum sentence allowed under 11 Del. C. § 2113 has become important to Defendant because Defendant violated the original, probationary sentence and he was resentenced on February 14, 2002 to five years in prison.
DEL. CODE ANN.tit. 11, § 2113 (2001).
SUPER. CT. CRIM. R. 35.
SUPER. CT. CRIM. R. 61.
The case is a procedural quagmire. After Defendant pleaded guilty in 2001, he did not file a direct appeal. Even after he was "maxed-out" on the violation of probation in 2002, he did not file a direct appeal. Instead, on November 6, 2002, Defendant filed a pro se motion for post conviction relief. The motion did not question the five-year maximum penalty provided in 11 Del. C. § 2113(c)(1). In any event, after the court denied postconviction relief on December 2, 2002, Defendant finally filed an appeal. It appears from the court's records that after failing to respond to a notice to show cause, Defendant's appeal was dismissed by the Delaware Supreme Court on May 19, 2003. Now, through counsel and as mentioned, Defendant challenges the 2001 sentence's legality.
Rogers v. State, 825 A.2d 239 (Del. 2003).
After preliminary consideration under Superior Court Criminal Rule 61(d) it plainly appears from the motion for postconviction relief and the record of prior proceedings that Defendant is not entitled to relief. Specifically, the Rule 61 proceeding is procedurally barred under Rule 61(i)(2) and (3).
Defendant's motion under Superior Court Criminal Rule 35(a) is timely, because as the rule provides, "[t]he court may correct an illegal sentence at any time. . . ." Thus, despite the fact that Defendant agreed to the sentence, waived two opportunities to appeal and defaulted on a third opportunity, his challenge to the sentence's legality is procedurally proper.
SUPER. CT. CRIM. R. 35(a).
Defendant attempts to trump the specific penalty provided in 11 Del. C. § 2113(c)(1) by characterizing the crime created in § 2113 as an unclassified felony. Defendant fastens on the fact that the General Assembly did not explicitly classify the felony it created in 11 Del. C. § 2113. From that point, Defendant invokes the catch-all law, 11 Del. C. § 4201(b), which provides, in effect, that unclassified felonies shall be equivalent to Class G felonies. From that, Defendant argues that the punishment for Class G felonies is set at two years maximum under 11 Del. C. § 4205(b). Defendant buttresses his argument by pointing to the Delaware Sentencing Accountability Commission's guidelines, which seemingly classify violations of 11 Del. C. § 2113 as Class G felonies.
DEL. CODE ANN. tit. 11 Del. C. § 4201(b) (2001).
DEL. CODE ANN. tit. 11 Del. C. § 4205(b) (2001).
But for the General Assembly's having provided a specific maximum penalty for violating 11 Del. C. § 2113, Defendant's reliance on the Criminal Code's catch-all provisions and the SENTAC guidelines might be persuasive. The General Assembly, however, specifically provided the maximum penalty for the crime Defendant committed. And the General Assembly's specific provision controls.
See Cornish v. State, 1996 WL 280892 (Del.Super.Ct.) (specific statutes control general statutes to the extent of conflict between them).
Although it is not factually on point, Sheldon v. State is helpful. Sheldon considered whether a sentence in a rape case was controlled by a general sentencing provision, or by "a specific statute applicable only to rape cases". After holding that the specific statute controlled there, Sheldon took the opportunity to point out:
291 A.2d 273 (Del. 1972).
. . . there are numerous other criminal statutes which contain no maximum limit of sentences; it would be a great help to the administration of justice if the Legislature would provide specific maximum sentences in such statutes. The question which invariably confronts the Court is what is the Legislature's will; when that will has been expressed, there is usually no problem of interpretation.State v. Cooper, on which Defendant relies, is not helpful. As it is with the statues at issue here, Cooper found the statutes at issue there were not reasonably susceptible to different interpretations.
Id. at 275.
575 A.2d 1074 (Del. 1990).
Id. at 1078.
In 11 Del. C. § 2113, the General Assembly expressed its will. The fact that the General Assembly neglected to classify the felony there does not raise the slightest question as to the maximum penalty for that crime. Moreover, having provided a specific maximum penalty in 11 Del. C. § 2113, it is understandable why the General Assembly did not classify the offense. Meanwhile, regardless how a crime is classified, either by the General Assembly or SENTAC, the General Assembly has authority to set a specific maximum penalty, if it chooses to. This is an instance where the General Assembly provided a specific, maximum penalty for a specific crime. The specific, penalty provision controls.
For the foregoing reasons, Defendant's October 29, 2003 Motion for Postconviction Relief is summarily DISMISSED under Criminal Rule 61(d)(4). And, Defendant's Motion for Correction for Illegal Sentence under Rule 35 is DENIED.
IT IS SO ORDERED.