         IN THE SUPREME COURT OF THE STATE OF DELAWARE

FRANK DIGNAN,                            §
                                         §
       Defendant Below,                  § No. 77, 2019
       Appellant,                        §
                                         § Court Below–Superior Court
       v.                                § of the State of Delaware
                                         §
STATE OF DELAWARE,                       § Cr. ID No. 1104022622 (N)
                                         §
       Plaintiff Below,                  §
       Appellees.                        §
                                         §

                          Submitted: March 11, 2019
                          Decided:   April 12, 2019


Before VAUGHN, SEITZ, and TRAYNOR, Justices.

                                   ORDER

      Upon consideration of the appellant’s opening brief, the State’s motion to

affirm, and the record below, it appears to the Court that:

      (1)    The appellant, Frank Dignan, appeals a sentence the Superior Court

imposed upon him for second degree burglary. The State has moved to affirm the

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

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

      (2)    The record reflects that Dignan pleaded guilty to nine charges in order

to resolve five pending cases on March 1, 2012. Specifically, Dignan pleaded guilty

to three counts of second degree burglary, one count of second degree forgery, three
counts of second degree conspiracy, and two counts of misdemeanor theft. In

exchange for his plea, the State entered a nolle prosequi on numerous other charges.

Following a presentence investigation, the Superior Court sentenced Dignan as

follows: on the first burglary charge, eight years at Level V incarceration (“Level

V”); on the second burglary charge, one year at Level V, to be served consecutively;

and, on the third burglary charge, three years at Level V, suspended after one year

for decreasing levels of supervision, to be served consecutively. On each of

remaining charges, the Superior Court sentenced Dignan to one year at Level V,

suspended for Level II probation.

      (3)   On April 22, 2015, Dignan filed a motion for modification of his

sentence.   The Superior Court denied the motion, finding it time-barred and

concluding the sentence was appropriate for the reasons stated at sentencing. On

April 13, 2018, Dignan moved the Superior Court to modify his sentence order to

ensure he was given the opportunity to participate in a substance abuse program.

After seeking input from the Department of Corrections (DOC), the Superior Court

declined to amend the order. On October 30, 2018, Dignan yet again moved for the

modification of his sentence to accommodate his physical ailments. The Superior

Court denied the motion, noting DOC was able to address any medical issues Dignan

may have.




                                         2
         (4)    On January 18, 2019, Dignan filed a motion to correct an illegal

sentence. The Superior Court denied the motion, finding the sentence was imposed

pursuant to a plea agreement whereby Dignan acknowledged in open court that he

was aware of the possible penalties he faced; the motion was time-barred because it

was filed more than 90 days after the imposition of the sentence; no new information

had been provided to the sentencing court that would warrant a reduction or

modification of the sentence; and Dignan’s sentence for second degree burglary was

authorized by law. This appeal followed.

         (5)    Dignan argues his sentence to eight years at Level V for second degree

burglary is illegal because it exceeds the maximum penalty that may be imposed

under section 11 Del. C. § 825. Section 825 provides, in relevant part:

      Notwithstanding any provision of this section or Code to the contrary, any
      person convicted of burglary in the second degree shall receive a minimum
      sentence of:

         (1) One year at Level V; or

         (2) Three years at Level V, if the conviction is for an offense that was
             committed within 5 years of the date of a previous conviction for
             burglary first or second degree or if the conviction is for an offense
             that was committed within 5 years as of the date of termination of
             all periods of incarceration or confinement imposed pursuant to a
             previous conviction for burglary first or second degree conviction.1




1
    11 Del. C. § 825(b) (emphasis added).



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Dignan believes this language limits the sentence he can receive on a second degree

burglary conviction to a maximum of three years. But, this section sets out the

minimum sentence to which one can be sentenced. Section 4205 of Title 11 sets out

the maximum sentence one can receive for each felony class. Burglary second is a

class D felony,2 for which a person can be sentenced up to eight years at Level V.3

Accordingly, we find no merit to Dignan’s argument that the Superior Court

imposed an illegal sentence for his conviction of second degree burglary.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.



                                               BY THE COURT:


                                               /s/ Collins J. Seitz, Jr.
                                                      Justice




2
  Id. (“Burglary in the second degree is a class D felony, except where the person who suffers
physical injury is a person 62 years of age or older in which case any violation of this section shall
be a class C felony.).
3
  11 Del. C. § 4205(b)(4).


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