         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 HASSAN MUHAMMAD,                       §
                                        §
       Defendant Below,                 §   No. 592, 2014
       Appellant,                       §
                                        §
       v.                               §   Court Below—Superior Court
                                        §   of the State of Delaware,
 STATE OF DELAWARE,                     §   in and for New Castle County
       Plaintiff Below,                 §   Cr. ID No. 1308014183
       Appellee.                        §
                                        §

                           Submitted: March 27, 2015
                           Decided:   April 27, 2015

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                       ORDER

      This 27th day of April 2015, upon consideration of the appellant’s opening

brief, the appellee’s motion to dismiss, the appellant’s response, and the appellee’s

reply, it appears to the Court that:

      (1)    The appellant, Hassan Muhammad, filed this appeal from his

convictions for Possession of a Firearm by a Person Prohibited (“PFBPP”),

Possession of Ammunition by a Person Prohibited (“PABPP”), Carrying a

Concealed Deadly Weapon (“CCDW”), Resisting Arrest, and two counts of

Criminal Mischief. The State of Delaware has filed a motion to dismiss the appeal

as moot. After consideration of the parties’ respective positions, we conclude that
the Superior Court’s sentencing order must be vacated and this matter must be

remanded for further proceedings consistent with this order.

      (2)   The record reflects that, after a two day jury trial, Muhammad was

convicted of PFBPP, PABPP, CCDW, Resisting Arrest, and two counts of

Criminal Mischief.    Muhammad was sentenced as follows: (i) for PFBPP, a

minimum mandatory sentence of ten years of Level V incarceration; (ii) for

PABPP, eight years of Level V incarceration suspended after one year of Level V

incarceration for decreasing levels of supervision; (iii) for CCDW, eight years of

Level V incarceration suspended for one year of Level III probation; (iv) for

Resisting Arrest, two years of Level V incarceration suspended for one year of

Level III supervision; and (v) for each count of Criminal Mischief, six months of

Level V incarceration suspended for three months of Level III probation. This

appeal followed.

      (3)   In his opening brief on appeal, Muhammad, through counsel, raised

one issue for this Court’s consideration. Muhammad argued that his convictions

and sentences for two counts of Criminal Mischief violated the multiplicity

doctrine because only one entity (the Wilmington Housing Authority) suffered

damage and that same entity was the only entity to suffer the pecuniary loss

element of Criminal Mischief under 11 Del. C. § 811. Based on these contentions,




                                         2
Muhammad argued that one of his Criminal Mischief convictions and sentences

must be vacated.

      (4)   The State filed a motion to dismiss Muhammad’s appeal under

Supreme Court Rule 29(b). In the motion, the State indicated that it had entered a

nolle prosequi on one of the two Criminal Mischief charges on January 16, 2015.

Based on this entry of nolle prosequi, the State argued that the controversy on

appeal was moot and that the appeal should be dismissed.

      (5)    In response to the State’s motion to dismiss, Muhammad stated that

the issue was technically not moot because he was still sentenced for two counts of

Criminal Mischief. Muhammad also stated, however, that the issue would be

mooted if this Court ordered the Superior Court to vacate the multiplicitous

Criminal Mischief conviction and to re-sentence Muhammad. Depending on the

Court’s wishes, Muhammad’s counsel expressed a willingness to draft the opening

brief as a non-merit brief under Supreme Court Rule 26(c).

      (6)   In a footnote, Muhammad noted that there was another sentencing

issue because the ten year minimum mandatory sentence for his PFBPP conviction

was based on a material misapprehension of fact.             Under 11 Del. C. §

1448(e)(1)(c), a person convicted on two or more occasions of any violent felony

must be sentenced to a minimum mandatory sentence of ten years Level V

incarceration for PFBPP. Muhammad was sentenced to ten years of Level V



                                        3
incarceration based on his previous convictions for Delivery of Cocaine and

Possession of a Controlled Substance Within 300 Feet of a Park. Due to statutory

revisions before Muhammad’s arrest, Possession of a Controlled Substance Within

300 Feet of a Park is no longer a separate drug offense and is no longer classified

as a violent felony under 11 Del. C. § 4201(c). Muhammad further noted that it

appeared from the Prothonotary record that he had actually pled guilty to

Possession of a Controlled Substance, a lesser included offense of Possession of a

Controlled Substance Within 300 Feet of a Park, which was not a violent felony.

With one previous violent felony conviction, Muhammad could be subject to a

minimum mandatory Level V sentence of three years or five years.1                         These

contentions were not raised in the Superior Court proceedings.

       (7)    We asked the State to respond to the contentions concerning

Muhammad’s PFBPP sentence.                The State agreed that Muhammad had one

previous violent felony conviction, not two, and was therefore not subject to a ten

year minimum Level V sentence for PFBPP. According to the State, Muhammad

was subject to a minimum mandatory Level V sentence of three years under 11

Del. C. § 1448(e)(1)(a). To remedy the error, the State suggested that this Court

1
  11 Del. C. § 1448(e)(1)(a) (providing that prohibited person who knowingly possesses firearm
shall receive minimum sentence of three years if previously convicted of violent felony); 11 Del.
C. § 1448(e)(1)(b) (providing that prohibited person who knowingly possesses firearm shall
receive minimum sentence of five years if possession occurs within ten years of previous violent
felony conviction or date of termination of all periods of incarceration or confinement imposed
for violent felony conviction, whichever is later date).



                                               4
could dismiss the appeal with directions to the Superior Court to correct

Muhammad’s sentence or Muhammad could voluntarily dismiss this appeal and

move for a correction of sentence in the Superior Court, which the State would not

oppose.

       (8)     Having carefully considered the positions of the parties, we conclude

that the sole issue raised in the opening brief is moot in light of the State’s entry of

a nolle prosequi on one of the two Criminal Mischief charges against Muhammad.

We further conclude, however, that Muhammad’s sentence must be vacated in

light of the dismissal of one of the Criminal Mischief charges and the parties’

agreement that Muhammad was not subject to a ten year minimum mandatory

Level V sentence for PFBPP. This matter will be remanded to the Superior Court

for a new sentencing hearing. In addition to the PFBPP sentencing error, we note

that it appears Muhammad was sentenced for Resisting Arrest as a felony, rather

than as a misdemeanor as set forth in the indictment,2 and that the maximum




2
  Under 11 Del. C. § 1257, resisting arrest with force or violence is a Class G felony and resisting
arrest without force or violence is a Class A misdemeanor. The maximum sentence for a Class G
felony is up to two years of Level V incarceration. 11 Del. C. § 4205(b)(7). The maximum
sentence for a Class A misdemeanor is up to one year of Level V incarceration. 11 Del. C. §
4206(a). For Resisting Arrest, Muhammad was sentenced to two years of Level V incarceration
suspended for one year of Level III probation.



                                                 5
penalty for an unclassified misdemeanor (the Criminal Mischief conviction) is up

to thirty days of Level V incarceration.3

       NOW, THEREFORE, IT IS ORDERED that the Superior Court’s sentence

is VACATED and this matter is REMANDED to the Superior Court for a new

sentencing hearing. Jurisdiction is not retained.


                                             BY THE COURT:


                                             /s/ Karen L. Valihura
                                                    Justice




3
  11 Del. C. § 811(b)(3) (providing that criminal mischief resulting in less than $1,000 pecuniary
loss is unclassified misdemeanor); 11 Del. C. § 4206(c) (providing that sentence for unclassified
misdemeanor may include up to thirty days of Level V incarceration if no sentence is specified in
law defining offense).



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