               IN THE SUPREME COURT OF THE STATE OF DELAWARE

    HILLARD M. WINN,                          §
                                              §
          Defendant Below,                    §   No. 520, 2017
          Appellant,                          §
                                              §   Court Below—Superior Court
          v.                                  §   of the State of Delaware
                                              §
    STATE OF DELAWARE,                        §   ID. No. 0603002909 (N)
                                              §
          Plaintiff Below,                    §
          Appellee.                           §

                              Submitted: April 5, 2018
                              Decided: May 29, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                          ORDER

         This 29th day of May 2018, upon consideration of the appellant’s opening

brief, the appellee’s motion to affirm, and the record below, it appears to the Court

that:

         (1)     The appellant, Hillard M. Winn, filed this appeal from the Superior

Court’s November 8, 2017 order denying his motion for correction of sentence under

Superior Court Criminal Rule 36.1 The State of Delaware has moved to affirm the

Superior Court’s judgment on the ground that it is manifest on the face of Winn’s

opening brief that the appeal is without merit. We agree and affirm.



1
    State v. Winn, 2017 WL 5624309 (Del. Nov. 8, 2017).
         (2)    The record reflects that, in 2006, a Superior Court jury found Winn

guilty of Burglary in the First Degree, Possession of a Deadly Weapon During the

Commission of a Felony (“PDWCF”), Terroristic Threatening, and Assault in the

Third Degree as a lesser included offense of Assault in the Second Degree. The

Superior Court granted the State’s motion to declare Winn an habitual offender

under 11 Del. C. § 4214(a). Winn was sentenced to thirty-four years of Level V

incarceration (including thirty years as an habitual offender for Burglary in the First

Degree), suspended after thirty-two years for decreasing levels of supervision. This

Court affirmed the Superior Court’s judgment on direct appeal.2

         (3)    On June 14, 2017, Winn filed a Motion for Correction of Sentence

under Superior Court Criminal Rule 36. Rule 36 provides that the Superior Court

may correct clerical mistakes or errors arising from oversight or omission at any

time. Winn argued that his Burglary in the First Degree sentence should not have

been designated a Truth in Sentencing (“TIS”) Act sentence because it was an

habitual offender sentence that did not fall under the TIS Act. According to Winn,

the incorrect TIS designation meant he could not earn statutory good time at the pre-

TIS rate (five days a month in the first year, seven days a month in the second year,

etc.). The State opposed the motion, arguing that the TIS designation was not a




2
    Winn v. State, 2008 WL 223257 (Del. Jan. 28, 2008).
                                                2
clerical error and Winn could not earn statutory good time on his habitual offender

sentence.

         (4)     On November 8, 2017, the Superior Court denied Winn’s motion. The

Superior Court found that the TIS reference in Winn’s sentence was not an error and

that, as an habitual offender under § 4214(a), he was not entitled to good time credit

under 11 Del. C. § 4381(b) for his Burglary in the First Degree conviction.3 This

appeal followed.

         (5)     In his opening brief, Winn argues, as he did below, that his habitual

offender sentence for Burglary in the First Degree should not have been designated

a TIS sentence and that he is entitled to good time credit for his Burglary in the First

Degree conviction. Winn claims that his habitual offender sentence for Burglary in

the First Degree is not subject to the TIS Act because the TIS Act does not include

§ 4214. Winn misconstrues the applicability of the TIS Act. The TIS Act of 1989

applies to all crimes committed after June 29, 1990.4 Winn committed Burglary in

the First Degree in 2006 so that conviction and sentence are subject to the TIS Act.

Winn also ignores that § 4214 was amended in connection with the TIS Act “to

provide clarification and consistent application of the intent of the Truth in




3
    Winn, 2017 WL 5624309, at *1-2.
4
    67 Del. Laws, ch. 130, § 3; Snyder v. Andrews, 708 A.2d 237, 238 (Del. 1998).
                                                 3
Sentencing Act of 1989.”5 Winn’s sentencing as an habitual offender under § 4214

for Burglary in the First Degree does not make that sentence a pre-TIS Act sentence.

      (6)    Although Winn is not entitled to good time credit at the pre-TIS Act

rate, the State concedes that, contrary to the arguments it made below and the

Superior Court’s ruling, Winn is entitled to good time credit on his habitual offender

sentence for Burglary in the First Degree. The State notes that the offender status

sheet Winn included in the appendix to his opening brief shows that he has earned

good time of 1,140 days. We accept the State’s concession that Winn is entitled to

good time under the TIS Act and that his offender status sheet appears to reflect that

he is earning good time at the appropriate rate. We affirm the Superior Court’s

denial of Winn’s motion for correction of sentence on the ground that Winn’s

Burglary in the First Degree sentence was correctly designated a TIS sentence.

      NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED in part.



                                         BY THE COURT:

                                         /s/ James T. Vaughn, Jr.
                                               Justice



5
 67 Del. Laws, ch. 350. See also Crosby v. State, 824 A.2d 894, 900 (Del. 2003) (discussing
amendments to § 4214 that were made as part of the TIS Act).

                                            4
