Submitted: March 1, 2018
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
L. Valihura Justice.
consideration of the appellant's opening brief, the
State's motion to affirm, and the record below, the Court
appellant, Michael Durham, filed this appeal from a Superior
Court order denying his motion to proceed pro se and
for a certificate of eligibility to file an application for
sentence modification under 11 Del. C. §
4214(f). The Superior Court held Durham was ineligible for
relief under § 4214(f) and denied his motion to proceed
pro se. We affirm the Superior Court's judgment.
record reflects that, on December 4, 2003, a Superior Court
jury convicted Durham of attempted first degree robbery and
numerous related offenses arising from the home invasion of a
Dover residence. Given his prior convictions, the State moved
to declare Durham a habitual offender under 11 Del.
C. § 4214(a). The Superior Court granted that
motion and exercised its discretion to sentence Durham to
life imprisonment. This Court affirmed the Superior
Court's judgment on direct appeal.
May 11, 2017, Durham asked the Superior Court for permission
to proceed pro se to pursue a certificate of
eligibility and to modify his 2004 habitual offender sentence
under 11 Del. C. § 4214(f). Under Superior
Court Special Rule of Procedure 2017-1, which was enacted by
the Superior Court as directed by the General Assembly in 11
Del. C. § 4214(f), a request for certificate of
eligibility under § 4214(f) may only be filed by the
petitioner's attorney of record or the Office of Defense
Services. The Superior Court will not consider a
pro se request under § 4214(f) unless the
petitioner is granted permission to proceed pro
September 11, 2017, the Superior Court denied Durham's
request, holding that Durham was not eligible for relief
under § 4214(f) because Durham had been sentenced to
life imprisonment, which had been imposed solely within the
sentencing judge's discretion. This ruling is correct, as
we recently explained in another case touching on this same
When Durham was sentenced for attempted first degree robbery
as a habitual offender, § 4214(a) provided a habitual
offender could receive a sentence of up to life imprisonment
and would "receive a minimum sentence which shall not be
less than the statutory maximum penalty provided elsewhere in
this Title for the fourth or subsequent felony which forms
the basis of the State's petition to have the person
declared to be an habitual criminal except that this minimum
provision shall apply only when the fourth or subsequent
felony is a Title 11 violent felony, as defined in §
4201(c) of this title." The statutory maximum penalty for
attempted first degree robbery, the violent
felony forming the basis of the State's
petition to declare Durham a habitual offender, was twenty
years at Level V incarceration.Durham therefore faced a sentence
between twenty years at Level V and life imprisonment.
Because the sentencing judge exercised discretion under
§ 4214(a) to sentence Durham to life imprisonment
instead of twenty years at Level V incarceration, Durham did
not receive "a minimum sentence of not less than the
statutory maximum penalty for a violent
THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
Durham v. State, 867 A.2d 176