No. 383, 2001Supreme Court of Delaware.
Decided: February 13, 2002
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. VN94-07-1327-01 VN94-07-1328-01 VN94-09-0168-01
Affirmed.
Unpublished opinion is below.
RONNIE WILMER, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 383, 2001 In the Supreme Court of the State of Delaware. Submitted: December 21, 2001 Decided: February 13, 2002
Before HOLLAND, BERGER and STEELE, Justices
Carolyn Berger, Justice:
ORDER
This 13th day of February 2002, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, Ronnie Wilmer, filed an appeal from the Superior Court’s July 31, 2001 order denying his motion for correction of sentence pursuant to Superior Court Criminal Rule 35(a). We find no merit to the appeal. Accordingly, we AFFIRM.
(2) In this appeal, Wilmer claims that the Superior Court erred and abused its discretion in sentencing him for a violation of probation (“VOP”) because: a) the period of time between his arrest and the VOP hearing was impermissibly long; b) there was no competent evidence to support a VOP;
c) his due process rights were violated pursuant to Superior Court Criminal Rule 32.1; d) his acceptance of the plea agreement offered by the State was involuntary; and e) his attorney provided ineffective assistance by failing to inform him of scheduled VOP hearings and failing to investigate the charges against him.
(3) In October 1994, Wilmer pleaded guilty to Trafficking in Cocaine and Maintaining a Vehicle for Distributing Controlled Substances. On the conviction for maintaining a vehicle, he was sentenced to 3 years incarceration at Level V, to be suspended for 3 years at Level III probation. Also in October 1994, Wilmer pleaded guilty to Conspiracy in the Second Degree.
He was sentenced to 2 years incarceration at Level V, to be suspended for 2 years at Level II probation. In August 2000, in addition to pleading guilty to Possession of Cocaine and Maintaining a Dwelling for Keeping Controlled Substances, Wilmer was also found to have violated his probation in connection with his October 1994 convictions for maintaining a vehicle and conspiracy. Wilmer’s probation on the conviction for maintaining a vehicle was revoked and a 2-year sentence at Level V was imposed. His probation on the conspiracy conviction was also revoked and a 2-year sentence at Level V was imposed.
(4) Rule 35(a) permits the Superior Court to correct an illegal sentence “at any time.” “The `narrow function of Rule 35 is to permit correction of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence.'”[1]
“Relief under Rule 35(a) is available `when the sentence imposed exceeds the statutorily-imposed limits, [or] violates the Double Jeopardy Clause . . .'”[2] “A sentence is also illegal if it `is ambiguous with respect to the time and manner in which it is to be served, is internally contradictory, omits a term required to be imposed by statute, is uncertain as to the substance of the sentence, or is a sentence which the judgment of conviction did not authorize.'”[3]
(5) There is no evidence to support a claim that Wilmer’s sentences for the VOP exceeded the statutory authorization or exceeded the sentences originally imposed.[4] Wilmer does not claim that his sentences constituted double jeopardy or were ambiguous or contradictory. Moreover, all of Wilmer’s claims would require an examination of the proceedings leading up to the imposition of sentence. As such, no relief is available to Wilmer under Rule 35(a).[5]
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.