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Warnick v. State

Supreme Court of Delaware

March 20, 2017

DARRYL L. WARNICK, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: January 31, 2017

         Court Below-Superior Court of the State of Delaware Cr. ID No. 1203011242

          Before HOLLAND, VALIHURA, and SEITZ, Justices.

          ORDER

          Karen L. Valihura Justice

         This 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 that:

         (1) On 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 filed.

         (2) 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.[1] In this case, because the December 8 order on appeal was added to the court docket on December 27, 2016, [2] we conclude that Warnick's notice of appeal was timely filed on January 10, 2017.

         (3) The 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 the indictment.

         (4) 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 relief.[3]

         (5) On 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.

         (6) It 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.[4] 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.

         (7) 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).[5] 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."[6] Having concluded that Warnick is not entitled to relief under Rule 35(a), the Court will affirm the Superior Court's judgment.

         NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of ...


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