Opinion
No. 500, 2003.
Submitted: January 30, 2004.
Decided: March 25, 2004.
Superior Court of the State of Delaware, in and for New Castle County, Cr. ID Nos. 30604628DI and 30901716DI.
Before BERGER, STEELE, and JACOBS, Justices.
ORDER
This 25th day of March 2004, upon consideration of the parties' briefs and the record below, it appears to the Court that:
(1) The defendant-appellant, Benjamin Whiteman, filed this appeal from the Superior Court's denial of his motion for correction of sentence. We find no merit to the appeal. Accordingly, we affirm.
(2) The record reflects that Whiteman pled guilty in 1987 to one count of second degree burglary. The 1987 plea agreement provided that the State would not recommend a life sentence, but the defendant would admit that his three prior felony convictions qualified him as an habitual offender under 11 Del. C. § 4214(a). The Superior Court accepted the plea agreement, declared Whiteman to be an habitual offender, and sentenced him to ten years at Level V incarceration, to be suspended after serving three years for decreasing levels of supervision.
(3) In 1989, a Superior Court jury convicted Whiteman of third degree unlawful sexual penetration. The Superior Court granted the State's motion to declare Whiteman an habitual offender and sentenced him to life imprisonment in accordance with 11 Del. C. § 4214(a). Since that time, Whiteman has filed motions in each case seeking to challenge his status and life sentence as an habitual offender on various grounds. The Superior Court has denied Whiteman's repeated motions, and this Court has affirmed on appeal.
E.g., Whiteman v. State, 2003 WL 1965411 (Del. Apr. 22, 2003); Whiteman v. State, 2001 WL 1329693 (Del. Oct. 23, 2001).
(4) In this latest appeal, Whiteman asserts a new basis for challenging his habitual offender status. Whiteman argues that, in sentencing him in 1989, the Superior Court never revoked or terminated the suspended, probationary portion of his 1987 sentence. Whiteman therefore argues that the 1987 conviction was not final and could not serve as a predicate offense in the 1989 habitual offender proceedings. Whiteman did not raise this argument below. Therefore, we review his claim for plain error.
Del. Supr. Ct. R. 8.
(5) We find no merit to Whiteman's latest claim. This Court previously has held that a conviction and sentence, even if the sentence is suspended, constitute a prior conviction for purposes of imposing an enhanced penalty under 11 Del. C. § 4763. The same is true under 11 Del. C. § 4214(a). It would "simply beg logic and common sense to say that a person adjudicated guilty of an offense who is fined, ordered imprisoned, with execution `suspended' . . . has not been convicted" for purposes of forming a predicate offense under the habitual offender statute.
Lis v. State, 327 A.2d 746 (Del 1974).
Id. at 748.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.