HILLARD M. WINN, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: April 5, 2018
Superior Court of the State of Delaware ID. No. 0603002909
VALIHURA, VAUGHN, and SEITZ, Justices.
T. Vaughn, Jr. Justice.
29th day of May 2018, upon consideration of the
appellant's opening brief, the appellee's motion to
affirm, and the record below, it appears to the Court that:
appellant, Hillard M. Winn, filed this appeal from the
Superior Court's November 8, 2017 order denying his
motion for correction of sentence under Superior Court
Criminal Rule 36. The State of Delaware has moved to affirm
the Superior Court's judgment on the ground that it is
manifest on the face of Winn's opening brief that the
appeal is without merit. We agree and affirm.
record reflects that, in 2006, a Superior Court jury found
Winn guilty of Burglary in the First Degree, Possession of a
Deadly Weapon During the Commission of a Felony
("PDWCF"), Terroristic Threatening, and Assault in
the Third Degree as a lesser included offense of Assault in
the Second Degree. The Superior Court granted the State's
motion to declare Winn an habitual offender under 11 Del.
C. § 4214(a). Winn was sentenced to thirty-four
years of Level V incarceration (including thirty years as an
habitual offender for Burglary in the First Degree),
suspended after thirty-two years for decreasing levels of
supervision. This Court affirmed the Superior Court's
judgment on direct appeal.
June 14, 2017, Winn filed a Motion for Correction of Sentence
under Superior Court Criminal Rule 36. Rule 36 provides that
the Superior Court may correct clerical mistakes or errors
arising from oversight or omission at any time. Winn argued
that his Burglary in the First Degree sentence should not
have been designated a Truth in Sentencing ("TIS")
Act sentence because it was an habitual offender sentence
that did not fall under the TIS Act. According to Winn, the
incorrect TIS designation meant he could not earn statutory
good time at the pre-TIS rate (five days a month in the first
year, seven days a month in the second year, etc.). The State
opposed the motion, arguing that the TIS designation was not
a clerical error and Winn could not earn statutory good time
on his habitual offender sentence.
November 8, 2017, the Superior Court denied Winn's
motion. The Superior Court found that the TIS reference in
Winn's sentence was not an error and that, as an habitual
offender under § 4214(a), he was not entitled to good
time credit under 11 Del. C. § 4381(b) for his
Burglary in the First Degree conviction. This appeal
his opening brief, Winn argues, as he did below, that his
habitual offender sentence for Burglary in the First Degree
should not have been designated a TIS sentence and that he is
entitled to good time credit for his Burglary in the First
Degree conviction. Winn claims that his habitual offender
sentence for Burglary in the First Degree is not subject to
the TIS Act because the TIS Act does not include § 4214.
Winn misconstrues the applicability of the TIS Act. The TIS
Act of 1989 applies to all crimes committed after June 29,
1990. Winn committed Burglary in the First
Degree in 2006 so that conviction and sentence are subject to
the TIS Act. Winn also ignores that § 4214 was amended
in connection with the TIS Act "to provide clarification
and consistent application of the intent of the Truth in
Sentencing Act of 1989." Winn's sentencing as an
habitual offender under § 4214 for Burglary in the First
Degree does not make that sentence a pre-TIS Act sentence.
Although Winn is not entitled to good time credit at the
pre-TIS Act rate, the State concedes that, contrary to the
arguments it made below and the Superior Court's ruling,
Winn is entitled to good time credit on his habitual offender
sentence for Burglary in the First Degree. The State notes
that the offender status sheet Winn included in the appendix
to his opening brief shows that he has earned good time of 1,
140 days. We accept the State's concession that Winn is
entitled to good time under the TIS Act and that his offender
status sheet appears to reflect that he is earning good time
at the appropriate rate. We affirm the Superior Court's
denial of Winn's motion for correction of sentence on the
ground that Winn's Burglary in the First Degree sentence
was correctly designated a TIS sentence.
THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED
and the judgment of the Superior Court is AFFIRMED in part.