JOSHUA D. BENSON Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: September 25, 2018
Below-Superior Court of the State of Delaware ID. No.
VALIHURA, VAUGHN, and SEITZ, Justices.
T. Vaughn, Jr. Justice.
careful consideration of the appellant's opening brief,
the appellee's motion to affirm, and the record on
appeal, it appears to the Court that:
appellant, Joshua D. Benson, filed this appeal from the
Superior Court's denial of his motion for correction of
an illegal sentence. The State of Delaware has filed a motion
to affirm the Superior Court's judgment on the ground
that it is clear on the face of Benson's opening brief
that his appeal is without merit. We agree and affirm.
August 1, 2017, Benson pled guilty to Possession of a Firearm
by a Person Prohibited ("PFBPP") and Resisting
Arrest. As part of his plea agreement, the parties agreed
that Benson was a habitual offender and to be sentenced under
11 Del. C. §4214(d) due to his convictions for
Assault in the Second Degree in 2003, Reckless Endangering in
the First Degree in 2005, and Carrying a Concealed Deadly
Weapon (Firearm) in 2012. They also agreed to recommend a
fifteen-year Level V sentence for the PFBPP offense and one
year of suspended Level V time for the Resisting Arrest
offense. On August 1, 2017, the Superior Court accepted
Benson's guilty plea, declared him a habitual offender,
and sentenced him as the parties recommended in the plea
agreement. Benson did not appeal the Superior Court's
October 4, 2017, Benson filed a motion for correction of
illegal sentence under Superior Court Criminal Rule 35(a). He
argued that his sentence under § 4214(d) was illegal
because a first conviction for Carrying a Concealed Deadly
Weapon is a non-violent felony. The State opposed the motion.
On April 17, 2018, the Superior Court denied Benson's
motion because the sentence was imposed pursuant to a plea
agreement, the motion was time-barred, the sentence imposed
was mandatory and could not be reduced, and the sentence was
appropriate for all of the reasons stated at sentencing. This
appeal followed. The Superior Court denied Benson's
motion for transcripts at State expense.
his opening brief, Benson argues that: (i) the Superior Court
erred in denying his motion for transcripts at State expense;
(ii) the Superior Court erred in finding his motion
time-barred; and (iii) he could not be sentenced as a
habitual offender under § 4214(d) because Carrying a
Concealed Deadly Weapon is not a violent felony under 11
Del. C. § 4201(c). As to the denial of
Benson's motion for transcripts at State expense, the
transcript of Benson's guilty plea and sentencing is
attached to the State's motion to affirm and does not
support Benson's claims.
to Benson's other claims, we review the Superior
Court's denial of a motion for correction of sentence for
abuse of discretion. Questions of law are reviewed de
novo. Even though Benson's motion for
correction of illegal sentence was not time-barred,
motion was without merit. Benson agreed in his plea agreement
that he was subject to habitual offender sentencing under
§ 4214(d) due to his convictions for Assault in the
Second Degree in 2003, Reckless Endangering in the First
Degree in 2005 and Carrying a Concealed Deadly Weapon
(Firearm) in 2012.
Under § 4214(d), a person who has been convicted of two
or more Title 11 violent felonies as defined in §
4201(d) and who is convicted of a third or subsequent Title
11 violent felony must receive a minimum sentence of the
statutory maximum penalty for his latest Title 11 violent
felony. Benson does not dispute that Assault in the Second
Degree and Reckless Endangering in the First Degree are
violent felonies. Carrying a Concealed Deadly Weapon
(Firearm) is also, contrary to Benson's contention,
designated as a violent felony under § 4201(c). The
statutory maximum penalty for PFBPP, which is a Class C
felony for someone like Benson who is eligible for sentencing
under § 1448(e) due to a previous violent felony
conviction, is fifteen years. To the extent Benson claims he
could not be sentenced to more than ten years of Level V
incarceration under § 1448(e)(1)(c), he ignores that
this section defines the minimum sentence for PFBPP, not the
THEREFORE, IT IS ORDERED that the motion to affirm is granted
and the judgment of the Superior Court is AFFIRMED.