Submitted: May 3, 2019
Below-Superior Court of the State of Delaware Cr. ID Nos.
0609021733, 0610025087, 0506024010 (S)
STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
STRINE, JR. CHIEF JUSTICE
consideration of the appellant's opening brief, the
State's motion to affirm, and the record below, it
appears to the Court that:
appellant, Patrick Henry, filed this appeal from the Superior
Court's denial of his motion to change his sentence. The
State has filed a motion to affirm the judgment below on the
ground that it is manifest on the face of Henry's opening
brief that his appeal is without merit. We agree and affirm.
record reflects that, on March 19, 2007, a Superior Court
jury found Henry guilty of Trafficking Cocaine, Possession
with Intent to Deliver Cocaine, and four counts of Possession
of Drug Paraphernalia in Criminal ID No. 0609021733. These
charges arose from the discovery of Henry with cocaine on
September 29, 2006. On March 28, 2007, a Superior Court jury
found Henry guilty of Possession with Intent to Deliver
Cocaine and Possession of Drug Paraphernalia in Criminal ID
No. 0610025087. These charges arose from the discovery of
Henry with cocaine on October 25, 2006. On May 11, 2007, the
Superior Court sentenced Henry in both cases to a total of
thirty-nine years of Level V incarceration, suspended after
twenty-seven years for eighteen months of Level III
probation. On a consolidated appeal in both cases, the Court
affirmed the Superior Court's judgment.
February 4, 2019, Henry filed a document titled "Motion
Amend § 3901 Fixing Term of Imprisonment." The
Superior Court denied the motion, holding 11 Del C.
§ 3901 is not retroactive. This appeal followed.
Henry argues, as he did below, that the Superior Court
imposed too many consecutive sentences, the sentences did not
include any step-down provisions to ensure his successful
reintegration into society, and his trial counsel and
postconviction counsel were ineffective. Henry does not raise
the § 3901 claims he made in the Superior Court and has
therefore waived those claims. His remaining claims are without
construe Henry's motion in the Superior Court as a motion
for correction of illegal sentence under Superior Court
Criminal Rule 35(a). A sentence is illegal under Rule 35(a)
if it exceeds the statutory limits, violates double jeopardy,
is ambiguous or internally contradictory, or is not
authorized by the judgment of conviction. At the time Henry
was sentenced in 2007, his Level V sentences had to run
consecutively. His convictions arose from two separate
incidents in which he was found with drugs. Henry's
consecutive sentences are not illegal.
Contrary to Henry's contentions, his sentences include
the statutorily required time (at least six months of Level
IV, III, or II supervision) to facilitate his transition back
into society. Finally, the proper procedural vehicle for
Henry's ineffective assistance of counsel claim was a
motion for postconviction relief under Rule 61, not a motion
for correction of sentence under Rule 35.
THEREFORE, IT IS ORDERED that motion to affirm is GRANTED and
the judgment of the Superior Court is AFFIRMED.