Submitted: September 6, 2019
Below-Superior Court of the State of Delaware Cr. ID No.
SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
F. Traynor Justice.
consideration of the appellant's opening brief, the
appellee's motion to affirm, and the record below, it
appears to the Court that:
appellant, Ivorie Kelley, filed this appeal from the Superior
Court's denial of his motion for sentence reduction. The
State of Delaware has filed a motion to affirm the judgment
below on the ground that it is manifest on the face of
Kelley's opening brief that his appeal is without merit.
We agree and affirm.
July 2017, a grand jury indicted Kelley for multiple weapon
charges. On November 7, 2017, Kelley pleaded guilty to
Possession of a Firearm by a Person Prohibited
("PFBPP") in exchange for dismissal of the
remaining charges. The plea agreement reflected that the
parties agreed to immediate sentencing and that the State
would recommend a sentence of fifteen years of Level V
incarceration suspended after the five-year
minimum/mandatory. Under 16 Del. C. §
1448(e)(1)(b), a person who is convicted of PFBPP and has a
violent felony conviction within the previous ten years must
be sentenced to a minimum of five years at Level V. The
Superior Court sentenced Kelley to fifteen years of Level V
incarceration, suspended after five years for one year of
Level III probation.
February 9, 2018, Kelley filed a motion for sentence
modification. He sought to reduce the non-suspended Level V
portion of his sentence from five years to two years. The
Superior Court denied the motion because it could not reduce
or suspend the mandatory portion of a substantive minimum
sentence. Kelley did not appeal.
November 30, 2018, Kelley filed a motion for correction of
illegal sentence under Superior Court Criminal Rule 35(a). He
argued that § 1448(e)(1)(b) did not apply to his PFBPP
sentence because his 2013 conviction for drug dealing was a
Class D felony under 16 Del. C. § 4754(3) and
was not defined as a violent felony under 16 Del. C.
§ 4201(c). After reviewing Kelley's criminal
history, the Superior Court found that Kelley was charged
with, and pleaded guilty to, drug dealing under 16 Del.
C. § 4753(2), a Class C felony and a violent felony
under 11 Del. C. § 4201(c). Kelley was
therefore subject to a five-year minimum mandatory sentence
for PFBPP under § 1448(e)(1)(b). Kelley did not appeal.
February 28, 2019, Kelley filed a motion for reduction of
sentence. He again challenged his drug dealing conviction and
argued that § 1448(e)(1)(b) should not have applied to
his PFBPP sentence. The Superior Court denied the motion,
finding that it raised issues more appropriate to a direct
appeal and was untimely and repetitive. This appeal followed.
appeal, Kelley continues to argue that § 1448(e)(1)(b)
did not apply to his PFBPP sentence. We review the denial of
a motion for reduction of sentence for abuse of
discretion. To the extent a claim involves a question
of law, we review the claim de novo.
Kelley's PFBPP sentence is not illegal. He was subject to
a five-year minimum sentence under § 1448(e)(1)(b)
because he was convicted of a violent felony-drug dealing
under 16 Del. C. § 4753(2)-within ten years of
his PFBPP conviction. In arguing that the drug dealing plea
paperwork showed a sentencing range for a Class D rather than
Class C felony, Kelley ignores that the paperwork identified
the charge he was pleading guilty to as "Drug
Dealing-Marijuana-No Tier Weight-1 Aggravating Factor (in
vehicle) (Felony C) (16 Del. C. 4753(2))."The sentencing
transcript provided by Kelley also reflects that he admitted
he was guilty of possession with intent to deliver a
controlled substance in a car, the elements of drug dealing
under § 4753(2).
Kelley's ineffective assistance of counsel claims are
outside the scope of a Rule 35(a) motion. To the extent
Kelley seeks reduction of his PFBPP sentence under Rule
35(b), the Superior Court cannot reduce the mandatory portion
of Kelley's sentence. Kelley's motion was also repetitive
THEREFORE, IT IS ORDERED that the Motion to Affirm is GRANTED
and the judgment ...