            IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHRISTOPHER WEHDE,                           §
                                             §
       Defendant Below,                      §   No. 217, 2015
       Appellant,                            §
                                             §
       v.                                    §   Court Below—Superior Court
                                             §   of the State of Delaware,
STATE OF DELAWARE,                           §   in and for New Castle County
                                             §   Cr. ID No. 0804024505
       Plaintiff Below,                      §
       Appellee.                             §

                             Submitted: July 10, 2015
                             Decided:   September 9, 2015

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

                                         ORDER

       This 9th day of September 2015, upon consideration of the appellant’s

opening brief, the State’s motion to affirm, 1 and the record below, it appears to the

Court that:

       (1)    The appellant, Christopher Wehde, filed this appeal from a Superior

Court order denying his motion for correction of sentence. The State of Delaware

has filed a motion to affirm the judgment below on the ground that it is manifest on




1
  The appellant’s motion for leave to respond to the motion to affirm and his amended motion for
leave to respond to the motion to affirm are denied. Under Supreme Court Rule 25(a), no
response to a motion to affirm is permitted unless requested by the Court. The Court did not
request a response to the motion to affirm and finds no good cause to permit a response in this
appeal.
the face of Wehde’s opening brief that his appeal is without merit. We agree and

affirm.

       (2)    The record reflects that, in January 2009, Wehde pled guilty to Sexual

Solicitation of a Child, Rape in the Fourth Degree, and Conspiracy in the Second

Degree. These convictions arose from Wehde’s facilitation of sexual intercourse

between his wife and his minor son. Wehde was declared a habitual offender

under 11 Del. C. § 4214(a) on the Rape in the Fourth Degree charge. Wehde was

sentenced to thirty-two years of Level V incarceration, suspended after nineteen

years for decreasing levels of supervision.

       (3)    On appeal from this sentence, Wehde argued that the Superior Court

erroneously declared him a habitual offender and imposed a disproportionately

unfair sentence.2 Wehde claimed that his earlier convictions, for which he received

suspended sentences, could not be predicate offenses under Section 4214(a)

because, without incarceration, he did not receive an opportunity for

rehabilitation.3 This Court rejected that argument and found that the Superior

Court did not err in declaring Wehde a habitual offender. 4        This Court also

affirmed Wehde’s sentence. 5 After the mandate was stayed and the matter was

remanded for the Superior Court to address whether the State filed a motion to

2
  Wehde v. State, 983 A.2d 82, 83 (Del. 2009).
3
  Id. at 85.
4
  Id. at 86.
5
  Id. at 86-87.


                                                 2
declare Wehde a habitual offender before sentencing, the Superior Court reported

that even if the motion was not properly docketed before sentencing, the Superior

Court and Wehde’s counsel had received and reviewed the motion before

sentencing. We agreed with the Superior Court that Wehde was not prejudiced by

the untimely docketing of the State’s habitual offender motion and ordered

issuance of the mandate on our earlier opinion.

         (4)    On December 28, 2009, Wehde filed a motion for reduction of

sentence, which was denied by the Superior Court.                  This Court affirmed the

Superior Court’s judgment.6           Wehde filed, and then withdrew, a motion for

postconviction relief under Superior Court Criminal Rule 61. 7

         (5)    On October 3, 2014, Wehde filed a motion for correction of sentence.

Wehde subsequently filed a motion to amend. In an order dated April 10, 2015,

the Superior Court denied the motions, finding that Wehde acknowledged the

range of sentences when he pled guilty, the motions were untimely under Superior

Court Criminal Rule 35(b), there were no extraordinary circumstances supporting

review of the motions, the provisions of 11 Del. C. § 4217 were inapplicable, and

the sentence was appropriate for all the reasons stated at sentencing. This appeal

followed.



6
    Wehde v. State, 2011 WL 181461 (Del. Jan. 14, 2011).
7
    State v. Wehde, 2012 WL 1415631 (Del. Super. Ct. Feb. 15, 2012).


                                                3
       (6)    We review the Superior Court’s denial of a motion for correction of

sentence for abuse of discretion.8 To the extent the claim involves a question of

law, we review the claim de novo.9 A motion to correct an illegal sentence under

Rule 35(a) may be filed at any time. 10 A sentence is illegal if it exceeds statutory

limits, violates double jeopardy, 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

that the judgment of conviction did not authorize. 11 A motion to correct a sentence

imposed in an illegal manner or a motion for reduction of sentence filed more than

ninety days after imposition of the sentence will be considered only in

extraordinary circumstances or if the Department of Correction files an application

under 11 Del. C. § 4217.12

       (7)    As he did in the Superior Court, Wehde argues that his sentence as a

habitual offender is illegal because: (i) the predicate felony convictions were

overlapping; (ii) some of the violation of probation (“VOP”) sentences he received

on the predicate convictions were illegal; (iii) two of the predicate convictions

constituted only one predicate conviction because he received VOP sentences for

both of those convictions on the same day; (iv) the VOP sentences had to expire
8
  Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
9
  Id.
10
   Super. Ct. R. 35(a).
11
   Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
12
   Super. Ct. Crim. R. 35(a), (b).


                                              4
before he was eligible for sentencing as a habitual offender; (v) the crimes

underlying two of his predicate convictions are now classified as misdemeanors;

(vi) he was not guilty of Rape in the Fourth Degree; and (vii) he should have been

sentenced by the same judge who accepted his guilty plea. Wehde contends that

the Superior Court erred by addressing his motions under Rule 35(a) instead of

Rule 35(b) and by failing to address his claims.

         (8)     Wehde’s attacks on his habitual offender sentence are without merit.

To declare someone a habitual offender under Section 4214(a), “three separate

convictions are required, each successive to the other, with some chance for

rehabilitation after each sentencing….” 13 In 2009, this Court affirmed the Superior

Court’s finding that Wehde was a habitual offender based on previous felony

convictions that included: (i) two counts of Second Degree Forgery and one count

of Theft (over $500) for offenses that occurred between June 22, 1995 and

December 5, 1997, with a sentencing date of April 30, 1998; (2) Theft (over

$1000) for an offense that occurred on November 15, 2001, with a sentencing date

of February 6, 2002; and (3) Theft (over $1000) for an offense that occurred on

September 15, 2003, with a sentencing date of May 28, 2004.14

         (9)     Wehde cites no authority in support of his contention that a conviction

overlaps with a later conviction when the later conviction results from a crime

13
     Buckingham v. State, 482 A.2d 327, 330 (Del. 2010).
14
     Wehde v. State, 983 A.2d at 86.


                                                5
committed while the defendant was on probation for the earlier conviction. Wehde

also fails to cite any authority to support his claims that he was ineligible for

habitual offender status until his VOP sentences expired and that receiving VOP

sentences on the same day for different convictions transformed those convictions

into one predicate conviction under Section 4214. As to Wehde’s attacks on the

legality of some of the VOP sentences he received on the predicate convictions,

those claims are outside the scope of this proceeding.                  If Wehde wished to

challenge any of the VOP sentences he received, he needed to file an appeal from

those sentences or file a motion for sentence correction in those cases. Wehde also

fails to explain how an allegedly illegal VOP sentence makes the underlying

conviction invalid for purposes of Section 4214.

         (10) The later reclassification of some of the crimes underlying Wehde’s

predicate felony convictions as misdemeanors does not make those convictions

non-predicate convictions under Section 4214. 15 The status of the crime at the

time of the conviction is controlling. 16 Wehde does not contend that any of the

crimes underlying his habitual offender status were misdemeanors at the time he

was convicted of those crimes.

          (11) As to Wehde’s claim that he was not guilty of Rape in the Fourth

Degree, this claim is outside the scope of Rule 35. A proceeding under Rule 35

15
     11 Del. C. § 4215A; Watson v. State, 892 A.2d 366, 369-70 (Del. 2005).
16
     Id.


                                                 6
presumes a valid conviction. 17 Rule 35 is not a means for Wehde to attack the

legality of his convictions or to raise allegations of error in the proceedings before

the imposition of sentence.18

          (12) Wehde’s claim that he should have been sentenced by the same judge

who accepted his guilty plea constitutes a claim that his sentence was imposed in

an illegal manner. Absent extraordinary circumstances or an application by the

Department of Correction under 11 Del. C. § 4217, the Superior Court will not

consider a motion for correction of a sentence imposed in an illegal manner filed

more than ninety days after imposition of the sentence. Wehde filed his motion for

correction of sentence more than ninety days after the imposition of his sentence.

Wehde has not shown that his sentencing by a judge who did not accept his guilty

plea constitutes extraordinary circumstances under Rule 35(b).          Nor has the

Department of Correction filed an application under Section 4217.

          (13) In addition to the claims he raised in the Superior Court, Wehde also

argues on appeal that the Superior Court should have held a separate hearing on the

State’s habitual offender petition after the untimely docketing of the State’s

habitual offender petition, habitual offender status is reserved for those repeatedly

incarcerated and not those on probation, his counsel was suspended from the

practice of law, and the Superior Court has demonstrated a closed mind in denying

17
     Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
18
     Id.


                                                  7
his motions. These claims will not be considered on appeal in the absence of plain

error.19 There is no plain error here.

        (14) Wehde’s claim that the Superior Court should have held a separate

hearing on the State’s habitual offender petition fails for the same reasons as his

claim regarding the identity of the judge who sentenced him. In addition, the

untimely docketing of the State’s habitual offender petition was previously

addressed by this Court.20      This Court has also previously rejected Wehde’s

argument that habitual offender status is limited to those who are incarcerated.21

As to the suspension of Wehde’s counsel, the order submitted by Wehde reflects

that his counsel was permitted to provide legal services under the supervision of

the Superior Court Criminal Conflicts Program while Wehde’s 2009 appeal was

pending. Wehde also fails to identify any errors by his counsel. Having carefully

reviewed the parties’ submissions and the record, we conclude that the Superior

Court did not err in denying Wehde’s motions for correction of sentence and did

not display a closed mind in denying those motions.




19
   Supr. Ct. R. 8.
20
   See supra ¶ 3.
21
   See id.


                                         8
     NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED

and the judgment of the Superior Court is AFFIRMED.

                                   BY THE COURT:

                                   /s/ Collins J. Seitz, Jr.
                                   Justice




                                     9
