Submitted: October 25, 2017
Defendant's "Motion for Correction of Sentence Under
Rule 36." DENIED.
Barzilai K. Axelrod, Esquire Deputy Attorney General
Department of Justice Attorney for Plaintiffs
Hillard M. Winn Pro Se.
Richard R. Cooch, R.J.
Mr. Axelrod and Mr. Winn:
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. "At sentencing, Winn was
declared a habitual offender pursuant to title 11, section
4214(a) of the Delaware Code and was sentenced to thirty
years in prison for Burglary in the First Degree and a total
of five years in prison suspended after two years on the
remaining counts." 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 sentence pursuant to Superior Court Rule of
Criminal Procedure 36.
motion, Defendant claims that the Delaware
Truth-in-Sentencing ("TIS") designation on his
Habitual Offender sentence is "erreoneously
identifie[d]." Defendant contends that this Court
committed a "clerical mistake" by including TIS on
Court concludes that Defendant's claim is without merit.
"Criminal Rule 36 empowers the Superior Court to correct
clerical mistakes or errors in the record resulting from
'oversight or omission.'" However, this
Court will not correct Defendant's sentence because
inclusion of the TIS designation on his sentence was not in
the Court imposed his sentence after the Truth-in-Sentencing
Act ("the Act") became effective in 1990,
Defendant's sentence is subject to the Act. "The Act
applies to sentences for crimes committed after June 29, 1990
and, among other things, it eliminated
parole." The Act expressly provides that
"[a]ny person subject to the custody of the Department
at Levels IV or V shall, upon the conviction of any crime
during the term of his sentence, forfeit all good time
accumulated to the date of the criminal
act." The Act applies to convictions of
"all crimes which are committed as of 12:01 a.m., June
30, 1990 or thereafter." Because Defendant was convicted
of First Degree Burglary, PDWCF, Terroristic Threatening, and
Assault in the Third Degree his sentence is correctly
designated as a TIS sentence.
argues in both his Motion for Correction of Sentence and his
Reply to the State's Response that because the Habitual
Offender statute is not included in the Act it was not meant
to be included and thus does not apply to the
Act.Defendant misconstrues the applicability
of the Act. The Act applies to "all crimes"
committed after June 30, 1990. That the Court declared
Defendant an Habitual Offender pursuant to 11 Del. C. §
4214(a), a statute that, as Defendant notes, is omitted from
the Act, does not affect the Act's applicability to
Defendant. Defendant was convicted of various crimes after
1990 and his sentence is thus within the Act.
Defendant is an Habitual Offender pursuant to 11 Del. C.
§ 4214(a) having been convicted more than twice of a
Title 11 violent felony. As such, the accrual of "good
time" credit is not available to him pursuant to 11 Del.
C. § 4381(b), which permits sentence reductions for
"good time" credit. However, such reductions are
not available if the sentence is a life sentence, or a
sentence "imposed pursuant to § 4214 or §
4204(k) of this title or sentences imposed prior to the
enactment of this statute." As the Court imposed
Defendant's sentence pursuant to § 4214, declaring
him an Habitual Offender, "good time" credit is not
available to Defendant.
above reasons, Defendant's motion for correction of
sentence pursuant to Superior Court Rule of Criminal
Procedure 36 is DENIED.