Submitted: April 5, 2018
Below-Superior Court of the State of Delaware Cr. ID No.
VALIHURA, VAUGHN, and SEITZ, Justices.
T. VAUGHN, JR. JUSTICE
10th day of May 2018, upon consideration of the
appellant's opening brief, the State's motion to
affirm, and the record below, it appears to the Court that:
appellant, Dale Jabbar Bowen, filed this appeal from the
Superior Court's denial of his motion for sentence
correction. The State of Delaware has filed a motion to
affirm the judgment below on the ground that it is manifest
on the face of Bowen's opening brief that his appeal is
without merit. We agree and affirm.
record reflects that, on October 13, 2005, a Superior Court
jury found Bowen guilty of multiple crimes including Robbery
in the First Degree and Possession of a Deadly Weapon During
the Commission of a Felony ("PDWDCF"). On October
24, 2005, the State filed a motion to declare Bowen a
habitual offender under 11 Del. C. § 4214(a).
The State identified the following convictions in support of
the motion: (i) Distribution of Cocaine, committed in
Virginia in August 1998; (ii) Attempted Obtaining Money by
False Pretenses, committed in Virginia in October 1999; (iii)
Receiving Stolen Property, committed in Delaware in January
2002 and two counts of Theft, committed in Delaware in April
2002; (iv) Robbery in the Second Degree, committed in
Delaware in August 2002. At the habitual offender hearing on
December 2, 2005, Bowen's counsel stated that there was
no good faith basis to challenge the motion. The Superior
Court declared Bowen a habitual offender and sentenced him to
fifty-six years of Level V incarceration (which included
fifty years as a habitual offender), suspended after
fifty-four years for two years of Level II probation. This
Court affirmed the Superior Court's judgment on direct
June 21, 2017, Bowen filed a motion for sentence correction.
Bowen argued that the State's motion to declare him a
habitual offender was incorrect because the conduct
underlying his Virginia felony conviction for Obtaining Money
by False Pretense did not constitute a felony under Delaware
law and therefore his habitual offender sentences for Robbery
in the First Degree and PDWDCF should be vacated. The State
opposed the motion. The Superior Court denied the motion,
concluding that the State had proven the existence of three
predicate convictions and that the inclusion of a
non-qualifying conviction did not invalidate the Superior
Court's approval of the motion to declare Bowen a
habitual offender. This appeal followed.
review the Superior Court's denial of a motion for
correction of sentence for abuse of discretion. To the extent the
claim involves a question of law, we review the claim de
novo. As he did below, Bowen argues that the
State's motion to declare him a habitual offender was
erroneous because it included his Virginia conviction for
Obtaining Money by False Pretense, which did not qualify as a
predicate offense under § 4214(a). Bowen also argues
that the non-suspended fifty-four year Level V sentence for
his crimes, including the two convictions for which he was
sentenced as a habitual offender, exceeds the forty-five year
term for a life sentence under § 4214(a). Bowen did not
raise this claim below and we will not consider it for the
first time on appeal.
Bowen's argument that the State's habitual offender
motion was erroneous is a claim that his sentence was imposed
in an illegal manner. Absent extraordinary circumstances or an
application by the Department of Correction under 11 Del.
C. § 4217, the Superior Court will not consider a
motion for correction of a sentence imposed in an illegal
manner filed more than ninety days after imposition of the
sentence. Bowen filed his motion for sentence
correction more than ninety days after the imposition of his
sentence. The Department of Correction has not filed an
application under 11 Del. C. § 4217.
Bowen has not shown any extraordinary circumstances
warranting consideration of his untimely motion for sentence
correction. Bowen did not oppose the State's habitual
offender petition in 2005 and he does not dispute that he was
convicted of three predicate offenses under § 4214(a).
We affirm the Superior Court's denial of Bowen's
motion for sentence correction on the independent and
alternative ground that it was time-barred under Superior
Court Criminal Rule 35(b).
THEREFORE, IT IS ORDERED that motion to affirm is GRANTED and
the judgment of the Superior Court is AFFIRMED.