FREDERICK S. DeJOHN, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: March 28, 2017
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
COLLINS J. SEITZ, JR. JUSTICE.
10th day of May 2017, upon consideration of the
appellant's opening brief, the State's motion to
affirm, the appellant's motion for leave to respond to
the motion to affirm, and the Superior Court record, it
appears to the Court that:
2001, the appellant, Frederick S. DeJohn, was charged with
twenty counts of child pornography. On June 24, 2002, DeJohn
pled guilty to two counts of unlawfully dealing in child
Under Delaware's sex offender registration statute, a
person convicted of certain sexual offenses, including
unlawfully dealing in child pornography, is subject to
court-ordered registration as a sexual offender upon the
person's release from a Level V or Level IV
facility. There are three risk assessment tiers,
each of which has a particular set of registration
requirements. In this case, as part of the parties'
plea agreement, DeJohn agreed to be designated as a Tier III
sex offender.In exchange for DeJohn's guilty plea,
the State agreed to dismiss the other counts in the
his convictions on two counts of unlawfully dealing in child
pornography, DeJohn was sentenced, on September 18, 2002, to
a total of 15 years of Level V incarceration suspended after
6 years (later modified to 4½ years) for 1 year at
Level IV supervision and two consecutive 4-year terms of
probation. Consistent with the parties' plea agreement,
the sentence order required that DeJohn register as a Tier
III sex offender.
record reflects that DeJohn was found guilty of violating
probation in 2010 and 2011. On the second violation of
probation, DeJohn was resentenced, on July 18, 2013, to a
total of 7½ years of unsuspended Level V incarceration
followed by 1 year of probation.
June 2, 2016, DeJohn filed a motion for correction of
sentence under Superior Court Criminal Rule 35(a). DeJohn
claimed that his designation as a Tier III sex offender was
illegal because, under the sex offender registration statute,
unlawfully dealing in child pornography is listed as a Tier
August 24, 2016, DeJohn submitted a "supplement" to
his motion for correction of sentence. In the supplement,
DeJohn asked the Superior Court to award him good time
credits and to issue an amended sentence order stating that
the sentence was due to expire in September 2017. After
soliciting the State's response to DeJohn's
submissions, the Superior Court denied the motion as
supplemented. This appeal followed.
appeal, DeJohn has filed a motion to respond to the
State's motion to affirm. Under Supreme Court Rule 25(a),
a response to a motion to affirm is not permitted unless a
response is requested by the Court. The Court has not requested
a response in this case. The motion to respond will be
his opening brief on appeal, DeJohn continues to challenge
his designation as a Tier III sex offender, and he contends
that he finished serving the sentence in September 2017. To
the extent DeJohn raised other claims in his motion for
correction of sentence and supplement, he has waived any
right to review of those claims on appeal by failing to argue
them in his opening brief.
DeJohn's challenge to his sex offender designation is
unavailing. DeJohn's agreed-upon Tier III designation was
made a part of his knowing and voluntary guilty plea. As such
the designation is ...