DARRYL L. WARNICK, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: January 31, 2017
Below-Superior Court of the State of Delaware Cr. ID No.
HOLLAND, VALIHURA, and SEITZ, Justices.
L. Valihura Justice
20th day of March 2017, upon consideration of the
appellant's opening brief, the State's motion to
affirm, the appellant's response to the State's
contention that this appeal should be dismissed as untimely
filed, and the Superior Court record, it appears to the Court
January 10, 2017, the appellant, Darryl L. Warnick, filed
this appeal from the Superior Court's order dated
December 8, 2016, denying his motion for correction of
sentence. As a preliminary matter, we address the State's
contention that the appeal should be dismissed as untimely
Under Supreme Court Rule 6, a notice of appeal in any
postconviction proceeding must be filed within thirty days
after entry upon the docket of the order from which the
appeal is taken. In this case, because the December 8 order
on appeal was added to the court docket on December 27, 2016,
conclude that Warnick's notice of appeal was timely filed
on January 10, 2017.
record reflects that Warnick was indicted in May 2012 for
eighty-six offenses: two counts of child abuse; forty counts
of rape in the second degree; two counts of continuous sexual
abuse of a child; forty counts of unlawful sexual contact in
the second degree; and two counts of endangering the welfare
of a child. On May 24, 2012, Warnick pled guilty to two
counts of rape in the second degree and was sentenced to a
total of twenty-three years at Level V followed by probation.
In exchange for Warnick's guilty plea, the State entered
a nolle prosequi on the other eighty-four counts in
Warnick did not file a direct appeal from his guilty plea
conviction and sentence. He did, however, filed a motion for
postconviction relief under Superior Court Criminal Rule 61.
Warnick's postconviction motion was referred to a
Superior Court Commissioner. On October 25, 2013, the
Commissioner issued a report recommending that the motion was
without merit and should be denied. By order dated October
16, 2015, a Superior Court Judge adopted the report and
denied Warnick's motion for postconviction
November 29, 2016, Warnick filed a motion for correction of
illegal sentence under Superior Court Criminal Rule 35(a). By
order dated December 8, 2016, the Superior Court denied the
motion. This appeal followed.
is well-established that the grounds for a motion seeking a
correction of sentence under Rule 35(a) must be limited to
alleged errors within the sentence itself. In his opening
brief on appeal, Warnick claims, as he did in his motion,
that his sentence is illegal because the State had
insufficient evidence to indict him for the two counts of
second degree rape that formed the basis of his guilty plea.
Warnick's attempt to use a motion for correction of
sentence as a means to challenge his indictment is outside
the limited scope of Rule 35(a). The narrow function of Rule
35(a) is to "permit correction of an illegal sentence,
not to re-examine errors occurring at the trial or other
proceedings prior to the imposition of
sentence." Having concluded that Warnick is not
entitled to relief under Rule 35(a), the Court will affirm
the Superior Court's judgment.
THEREFORE, IT IS ORDERED that the State's motion to
affirm is GRANTED. The judgment of ...