Opinion
I.D. No. 0603002909.
Submitted: May 24, 2010.
Decided: June 17, 2010.
On Defendant's Motion for Correction of Illegal Sentence.
DENIED.
Marsha J. White, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Hillard M. Winn, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se.
Dear Ms. White and Mr. Winn:
In September 2006, a jury found Defendant, Hillard Winn, guilty of Burglary in the First Degree, Possession of a Deadly Weapon During the Commission of a Felony ("PDWCF"), Terroristic Threatening, and a lesser included offense of Assault in the Third Degree. Defendant appealed his convictions to the Delaware Supreme Court, and the convictions were affirmed on January 28, 2008. Defendant has now filed a motion for correction of illegal sentence pursuant to Superior Court Rule of Criminal Procedure 35(a).
Winn v. State, 2008 WL 223257, at * 1 (Del. Supr.).
Id.
In his motion, Defendant asserts four grounds for relief. First, Defendant argues that the Court lacked jurisdiction to sentence him because he was sentenced for charges that were not indicted. Specifically, Defendant asserts that the indictment for Burglary First Degree stated that Defendant "intended to commit the crime of Assault Second Degree therein." Defendant argues that he should not have been punished for Burglary First Degree because he was only convicted of Assault Third Degree.
Defendant originally asserted five grounds, but withdrew ground five in his Reply Brief. Reply Br. at 3.
Op. Br. at 10.
Id. at 13.
Id.
Second, Defendant argues that he was denied a hearing before he was found to be a habitual offender. Defendant asserts that he was not provided with documentation of his prior crimes and the appropriate documents were never filed with the Court prior to sentencing. Defendant argues that the State's failure to file appropriate documentation with the Court deprived him of adequate notice to contest the habitual offender petition.
Id. at 1.
Id. at 2-3.
Third, Defendant argues that the predicate offenses cited by the State in its habitual offender petition are insufficient as a matter of law to support declaring Defendant to be a habitual offender. Defendant argues that the State's use of a Robbery First Degree conviction as a basis for its habitual offender petition was erroneous because Defendant was only ever convicted of Robbery Second Degree. Defendant also argues that a nolo contendere plea (entered on a charge of Escape After Conviction) cannot be used against him. Finally, Defendant asserts that, pursuant to Delaware Rule of Evidence 609(b), the Court cannot consider a conviction that is more than ten years old.
Id. at 4.
Id. at 5.
Id. at 6-7.
Id. at 8.
Fourth, Defendant argues that his sentence is illegal because the Court erroneously believed that that the statutory sentencing range for Burglary First Degree was 2-25 years and the Court erroneously concluded that the minimum sentence under the habitual offender statute would be 25 years.
Id. at 9.
This Court concludes that all of Defendant's contentions are without merit. Pursuant to Superior Court Criminal Rule 35(a), an illegal sentence can be corrected "at any time." However, Defendant must first establish that his sentence is, in fact, illegal.
Here, Defendant has failed to establish that his sentence is illegal. First, Defendant argues that the Court was without jurisdiction to sentence him on the charges of Burglary First Degree and Assault Third Degree. This argument is without merit. The Delaware Supreme Court has previously affirmed Defendant's convictions. Even though the indictment did not charge Assault Third Degree, Assault Third Degree is a lesser included offense of Assault Second Degree. Although Defendant argues that the Supreme Court did not address his contentions, the Supreme Court found that the jury had been presented with ample evidence to find Defendant guilty of Burglary First Degree. There was ample evidence to establish that Defendant was guilty beyond a reasonable doubt of entering or remaining unlawfully in the victim's apartment at night with the intent to assault her, and that he caused the victim physical injury. The Court appropriately sentenced Defendant on these charges.
Reply Br. at 3.
Second, Defendant argues that he was denied a prerequisite hearing before he was found to be a habitual offender. This argument is without merit. The State filed its motion to declare Defendant a habitual offender on November 9, 2006. Although Defendant appears correct in asserting that documents supporting his conviction of Escape After Conviction were not attached to the habitual offender petition, these documents were provided to Defendant sometime in December of 2006.
Ans. Br. at 2.
The State concedes this contention. See id.
Id.
At sentencing, Defendant did not contest that he had received appropriate documentation from the State. Defendant also represented to the Court that he didn't know how to respond to the State's habitual offender petition. Defendant had chosen to proceed pro se and is bound by his failure to have requested a hearing at the appropriate time. Additionally, there is nothing to indicate that Defendant was not given proper notice of the qualifying felonies that the State intended to use against Defendant.
Third, Defendant argues that his sentence is illegal because the prior convictions are insufficient as a matter of law to support a habitual offender petition. Although Defendant is correct that he was never convicted of Robbery First Degree, his conviction of Robbery Second Degree is also a predicate felony under the Habitual Offender Statute pursuant to 11 Del. C. § 4214(a). There was no error in sentencing Defendant as a habitual offender based on this robbery conviction.
Defendant also argues that the State cannot use a nolo contendere plea against him to support its habitual offender petition. This argument is without merit because there is no rule or statute that provides that a nolo contendere plea cannot be used to support a habitual offender petition.
It is not clear from the record whether Defendant entered a nolo contendere plea or a Robinson plea on the Escape After Conviction charge. The difference is immaterial because the State can use either a nolo contendere plea or a Robinson plea to support a habitual offender petition. Super. Ct. Crim. R. 11 (stating that "a judgment of conviction upon a plea of guilty or nolo contendere may be admissible in any proceeding . . ."); see also Smith v. State, 2000 WL 628346, at * 2 (Del. Supr.) (noting that the defendant's argument that a Robinson plea cannot serve as a predicate conviction under the habitual offender statute was "unavailing.").
Defendant also contends that the State cannot use convictions older than ten years pursuant to D.R.E. 609(b). Defendant's interpretation of the rule of evidence is erroneous. D.R.E. 609(b) applies to cross examination of witnesses at a trial. D.R.E. 609(b) does not apply to the Habitual Offender Statute. 11 Del. C. § 4214(a) does not impose any time limits for use of predicate offenses, and this Court will not read any time limit into the statute.
Finally, Defendant argues that his sentence is erroneous because the Court applied a statutory sentencing range of 2-25 years for Burglary First Degree and, thus, erroneously concluded that the minimum sentencing for Burglary First Degree under the habitual offender statute was 25 years. Although the State concedes that there was an error in the Court's conclusion that the minimum sentence for Burglary First Degree was 25 years, there is no error in Defendant's sentence because, under the Habitual Offender Statute, the Court had the discretion to sentence Defendant from 15 years to life in prison. The Court's 40 year sentence is well within the appropriate range. Because Defendant's sentence falls within the guidelines stated in the Habitual Offender Statute, Defendant's sentence is not illegal.
Ans. Br. at 4.
For all the forgoing reasons, Defendant's motion for correction of illegal sentence is DENIED.
IT IS SO ORDERED.