           IN THE SUPREME COURT OF THE STATE OF DELAWARE

BERNARD ELLERBE,                       §
                                       §     No. 510, 2016
      Defendant Below,                 §
      Appellant,                       §     Court Below—Superior Court of the
                                       §     State of Delaware
      v.                               §
                                       §     Cr. ID No. 1406020386
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                             Submitted: November 18, 2016
                             Decided:   February 2, 2017

Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices.

                                     ORDER

      This 2nd day of February 2017 upon consideration of the appellant’s

opening brief, the appellee’s motion to affirm, and the Superior Court record, it

appears to the Court that:

      (1)    In July 2014, Ellerbe was indicted on eleven charges, including two

class B drug felonies: Tier 2 Drug Dealing, for having possessed with intent to

deliver two grams or more of heroin1 and Tier 3 Aggravated Possession, for having

possessed three grams or more of heroin.2 In January 2015, a Superior Court jury


1
  16 Del. C. § 4752(2) (criminalizing drug dealing of a controlled substance in a
tier 2 quantity).
2
  Id. § 4752(4) (criminalizing aggravated possession of a controlled substance in a
tier 3 quantity).
found Ellerbe guilty of Tier 2 Drug Dealing, Tier 3 Aggravated Possession, and

five other charges in the indictment.

      (2)      Following trial, the parties agreed, and the Superior Court found, that

Ellerbe’s Aggravated Possession conviction should merge with his Drug Dealing

conviction for sentencing purposes. The record does not indicate, and the State

does not explain on appeal, why the State was willing to merge the two offenses

for sentencing, but we assume it is because the offenses are so fundamentally

similar.

      (3)      At sentencing in May 2015, the Superior Court imposed a sentence for

Drug Dealing and did not impose a sentence for Aggravated Possession. For Drug

Dealing, the court sentenced Ellerbe to twenty-five years of Level V incarceration

suspended after fifteen years (two years mandatory) for decreasing levels of

supervision.

      (4)      In September 2016, Ellerbe filed a motion for correction of illegal

sentence under Superior Court Criminal Rule 35(a). Ellerbe claimed, first, that his

prosecution and conviction for both Drug Dealing and Aggravated Possession

violated double jeopardy principles because the two offenses arose from the same

cache of heroin, and second, that the prosecution and conviction for both offenses

allowed the Superior Court to impose an illegal sentence.            By order dated




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September 27, 2016, the Superior Court denied Ellerbe’s motion as without merit.

This appeal followed.

      (5)    We review the denial of a motion for correction of sentence for abuse

of discretion and consider questions of law de novo.3 In this case, having carefully

considered the parties’ positions on appeal, we affirm the denial of the motion for

correction of sentence.

      (6)    As a procedural matter, Ellerbe’s challenge to his prosecution and

conviction is unavailing in a motion for correction of sentence.          The narrow

function of Rule 35(a) is to correct an illegal sentence, “not to re-examine errors

occurring at the trial or other proceedings prior to the imposition of sentence.”4

      (7)    Substantively, Ellerbe’s claim of a double jeopardy violation is

without merit under our 2014 decision in Ayers v. State.5 In Ellerbe’s case, as in

Ayers, Drug Dealing and Aggravated Possession were charged as alternative

theories of criminal liability, not as lesser and greater offenses of each other.6

Because both offenses required proof of an element that the other did not, we held

in Ayers that prosecution and conviction for both Drug Dealing and Aggravated



3
  Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
4
   Brittingham v. State, 705 A.2d 577, 578 (Del. 1998) (quoting Hill v. United
States, 368 U.S. 424, 430 (1962)).
5
  Ayers v. State, 97 A.3d 1037, 1041 (Del. 2014).
6
  Id.

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Possession did not offend principles of double jeopardy. 7 The same holds true for

Ellerbe.8

       (8)   Ellerbe has not demonstrated, and the record does not reflect, any

illegality in his sentence as a result of his prosecution and conviction for both Drug

Dealing and Aggravated Possession. The Superior Court properly merged the two

convictions for sentencing and imposed a statutorily authorized sentence for one.9




7
  Id. See supra notes 1, 2. Compare 16 Del. C. § 4752(2) (governing delivery or
possession with intent to deliver of a controlled substance in a Tier 2 quantity),
with § 4752(4) (governing possession of a controlled substance in a Tier 3
quantity).
8
  Nonetheless, we are not insensitive to the concerns Ellerbe has raised. The very
fact that the State offered to merge the offenses for purposes of sentencing is
suggestive of how much overlap there is between them. In recent years “merging”
has become more and more common because of the salumi-thin difference in some
charged crimes. In this case, Ellerbe was convicted of both offenses. But in other
cases juries have acquitted on a crime that is virtually indistinguishable (except for
an element that might be different, but does not in fact materially distinguish it)
from an offense on which the jury has acquitted. This raises the specter of
compromise verdicts where juries do not resolve cases on the basis of whether
there is reasonable doubt, but by resolving any differences within the jury by
convicting on one charge and acquitting on another, when the rational basis for
doing so seems tenuous. In this case, however, the jury found Ellerbe guilty of
both Drug Dealing and Aggravated Possession, and the offenses were then merged
for sentencing in accordance with Ayers.
9
  11 Del. C. § 4205(b)(2) (providing that for a class B felony the Superior Court
shall impose Level V incarceration of not less than 2 years and up to 25 years).

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

GRANTED. The judgment of the Superior Court is AFFIRMED.

                                BY THE COURT:
                                /s/ Leo E. Strine, Jr.
                                Chief Justice




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