No. 480, 2003.Supreme Court of Delaware.Submitted: January 29, 2004.
Decided: March 2, 2004.
Superior Court of the State of Delaware, in and for New Castle County, Cr. A. Nos. IN02-11-0697; 0700.
Before BERGER, STEELE and JACOBS, Justices.
ORDER
Myron T. Steele, Justice.
This 2nd day of March 2004, upon consideration of the appellant’s opening brief and the appellee’s motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The defendant-appellant, Damon Jones, filed an appeal from the Superior Court’s September 3, 2003 order denying his motion for correction of sentence pursuant to Superior Court Criminal Rule 35(a). The plaintiff-appellee, the State of Delaware, has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Jones’ opening brief that the appeal is without merit.[1] We agree and AFFIRM.
(2) In November 2002, Jones was charged with various drug and motor vehicle offenses. In July 2003, on the day of his trial, Jones pleaded guilty to Trafficking in Cocaine and Maintaining a Vehicle for the Distribution of Controlled Substances. He was sentenced to a total of 6 years incarceration at Level V, to be suspended after 5 years for probation.
(3) In August 2003, Jones filed a motion in the Superior Court to correct his sentence. The basis for the motion was that the medical examiner’s report allegedly failed to establish that the weight of the drugs met the statutory minimum for a charge of trafficking. The Superior Court denied the motion on the ground that Jones’ motion did not allege facts supporting the correction of an illegal sentence under Rule 35(a).
(4) In this appeal, Jones abandons the claim he presented to the Superior Court and instead bases his appeal on the claim that his sentence should be corrected to reflect guidelines allegedly adopted by the Delaware House of Representatives that changed the minimum weight for a charge of trafficking.
(5) This Court generally will not consider claims that were not presented to the trial court in the first instance.[2] In the interests of justice, the Court may consider and determine any question not so presented.[3] We do not find that the interests of justice require our consideration of Jones’ claim in this case, however, since Jones has presented no evidence that his sentence was illegal under Rule 35(a).[4]
(6) It is manifest on the face of Jones’ opening brief that this appeal is without merit because the issues presented on appeal are controlled by settled Delaware law and, to the extent that judicial discretion is implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the State of Delaware’s motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.