          IN THE SUPREME COURT OF THE STATE OF DELAWARE

JERRY LONGFORD-MYERS,              §
                                   §     No. 494, 2018
     Defendant Below,              §
     Appellant,                    §     Court Below: Superior Court
                                   §     of the State of Delaware
     v.                            §
                                   §     Cr. IDs: 1008015710
STATE OF DELAWARE,                 §              1104021979
                                   §              1205003223
     Plaintiff Below,              §
     Appellee.                     §

                        Submitted: April 10, 2019
                        Decided:   June 27, 2019

Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.

Upon appeal from the Superior Court. VACATED in part and REMANDED.


Benjamin S. Gifford IV, Esquire, Wilmington, Delaware for Appellant Jerry
Longford-Myers.

Martin B. O’Connor, Esquire, Department of Justice, Wilmington, Delaware for
Appellee State of Delaware.




TRAYNOR, Justice:
       This case has a complicated history but presents a relatively simple issue:

When a Superior Court sentence order contains sentences for multiple convictions,

one of which is subject to modification under Superior Court Rule 35(a) because it

is illegal, may the court also modify other lawful sentences within the order when it

corrects the illegal sentence?   We conclude that the Superior Court may not.

Accordingly, we reverse the judgment of the Superior Court and remand with

instructions.

                               I. BACKGROUND

       Jerry Longford-Myers has had his share of encounters with the law. The

portions of those encounters relevant to this case begin on August 10, 2011. On that

date, Longford-Myers pleaded guilty to one count of maintaining a dwelling for

keeping controlled substances, 1 and the Superior Court sentenced him to two years’

imprisonment suspended for one year of probation. The remainder of this opinion

refers to this case as the “2011 Maintaining Case.”

       Next, in a case unrelated to the 2011 Maintaining Case just mentioned,

Longford-Myers pleaded guilty on November 7, 2012 to possession of a firearm

during the commission of a felony 2 (“PFDCF”) and drug dealing. 3 The Superior

Court sentenced Longford-Myers to eight years’ imprisonment suspended after three


1
  16 Del. C. § 4760 (2011).
2
  11 Del. C. § 1447A (2012).
3
  16 Del. C. § 4754 (2012).

                                         2
years for 18 months’ probation for the PFDCF charge and 8 years’ imprisonment

suspended for 18 months’ probation for the drug dealing charge. The remainder of

this opinion refers to this case as the “2012 Firearm/Drug Dealing Case.”

      Then, on January 30, 2018, Longford-Myers pleaded guilty to second-degree

assault. The conviction that resulted from this plea was a violation of the terms of

Longford-Myers’ probation sentences in the 2011 Maintaining Case and the 2012

Firearm/Drug Dealing Case.

      Because of those probation violations, the Superior Court resentenced

Longford-Myers on February 6, 2018. In the 2011 Maintaining Case, the Superior

Court resentenced Longford-Myers to two years’ imprisonment suspended after one

year. In the 2012 Firearm/Drug Dealing case, the Superior Court resentenced

Longford-Myers to four years’ imprisonment suspended after one year for the

PFDCF charge and five years’ imprisonment suspended after one year for the drug

dealing charge. In all, Longford-Myers received three years of non-suspended prison

time at his resentencing.

      On April 19, 2018, Longford-Myers moved under Superior Court Criminal

Rule 35 to correct a portion of that resentencing. In particular, Longford-Myers

alleged that his resentencing in the 2011 Maintaining Case was illegal because he

had served all of the prison time for that conviction.




                                          3
       The State filed a response on June 1, 2018, agreeing with Longford-Myers

that the resentencing in the 2011 Maintaining Case was illegal. The State separately

asserted that Longford-Myers’ original PFDCF sentence imposed on November 7,

2012 in the 2012 Firearm/Drug Dealing Case was also illegal because it included a

suspended portion in violation of 11 Del. C. § 1447A(d), which provides that

sentences for PFDCF convictions are not subject to suspension.

       The State did not contend, however, that the violation-of-probation resentence

imposed for the drug dealing charge in the 2012 Firearm/Drug Dealing Case was

illegal. Nevertheless, the State asked the Superior Court to modify Longford-

Myers’s drug dealing resentencing to three years of unsuspended incarceration rather

than the one year that the Superior Court had previously imposed as to that count.

This appeared to be an effort to ensure that Longford-Myers remained in prison for

the same amount of unsuspended time that he had received at the February 6, 2018

resentencing.

       Finally, the State sought a slight upward modification4 of the November 7,

2012 original sentence for the drug dealing charge even though, by virtue of the

February 6, 2018 resentencing, that sentence was no longer operative.



4
  Specifically, the modification was from eight years’ imprisonment at Level V suspended for 18
months of Level III probation to eight years’ imprisonment at Level V suspended for six months
at Level IV (DOC discretion) and one year of Level III probation.



                                              4
       In two orders issued in June and August 2018,5 the Superior Court granted

Longford-Myers’ original motion to correct and, without giving Longford-Myers an

opportunity to address the State’s requests, granted the State’s requested

modifications as well.

       Longford-Myers appeals to us, arguing that the Superior Court erred when it

increased his drug dealing sentence.

                            II. STANDARD OF REVIEW

       This Court reviews sentence modifications for abuse of discretion. 6 Abuse of

discretion occurs when, among other things, the trial judge has “ignored recognized

rules of law or practice so as to produce injustice.” 7

                                     III. ANALYSIS

       On appeal, Longford-Myers argues that, because the sentence imposed at his

February 2018 resentencing for the drug dealing conviction in the 2012

Firearm/Drug Dealing Case was legal, it is outside the ambit of Rule 35(a) and thus

beyond the Superior Court’s power to modify. Longford-Myers also argues that the

Superior Court erred in its interpretation of § 1447A and that his original sentence

as to the PDFCF charge was not unlawful. In opposition, the State argues that, if



5
  The August 2018 order vacated and essentially restated the June 2018 order to facilitate a timely
appeal.
6
  Bell Sports, Inc. v. Yarusso, 759 A.2d 582, 587 (Del. 2000).
7
  Edwards v. State, 925 A.2d 1281, 1284 (Del. 2007); Lilly v. State, 649 A.2d 1055, 1059 (Del.
1994); Firestone Tire & Rubber Co. v. Adams, 541 A.2d 567, 570 (Del. 1988).

                                                5
one sentence within a multi-sentence sentencing order is illegal and therefore subject

to modification, then the Superior Court may also modify other sentences, including

legal sentences, within that order.

       The parties cite conflicting federal cases in support of their arguments.

Although their decisions are not binding upon us, the federal circuit courts are split

on the interpretation of the pre-1984 version of the federal Rule 35, to which our

Rule 35 is an analogue. 8 For example, in United States v. Henry,9 the Fifth Circuit

held that it was error for the sentencing court to increase the legal portion of a

defendant’s sentence after vacating the illegal portion of the sentence. 10 On the other

hand, in United States v. Bentley,11 the Seventh Circuit held that “if illegal sentences

in the original package foil the district court’s original plans, the court may start

anew and arrive at a punishment no more severe in aggregate than the first.” 12




8
   This version was amended by Pub. L. 98-473 § 215(b). It remains in effect for offenses
committed prior to November 1, 1987. In 2002, the Advisory Committee on the Rules of Criminal
Procedure deleted the amended version of federal Rule 35(a)—which has since been replaced by
something analogous to Delaware’s Rule 35(c)—because the Advisory Committee concluded that
18 U.S.C. § 3742 adequately covered the matter of illegal sentences. Appeals under § 3742 must
generally be filed within 14 days of sentencing. See Manrique v. United States, 137 S. Ct. 1266,
1271 (2017).
9
  709 F.2d 298 (5th Cir. 1983).
10
   Id. at 317; accord United States v. Contreras-Subias, 13 F.3d 1341, 1344 (9th Cir. 1994).
11
   850 F.2d 327, 328 (7th Cir. 1988).
12
   Id.; accord United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir. 1994).



                                               6
Because the relevant portion of the federal rule has been superseded, 13 these differing

approaches will not likely be reconciled.

        We also note that the precedents in our sister states are split on whether a court

may modify the legal portion of a sentence when another portion is modified for

illegality. 14

        Having reviewed the varying approaches to this issue, we conclude that the

answer lies in the plain language of Rule 35(a), which says: “The court may correct

an illegal sentence at any time and may correct a sentence imposed in an illegal

manner within the time provided herein for the reduction of sentence.”15 As it plainly

states, Rule 35(a) allows the Superior Court to correct illegal sentences. If Rule

35(a) was intended to allow the Superior Court to modify legal sentences, it would

have said so. It does not and, therefore, the Superior Court may not use it to modify

legal sentences.




13
   Supra note 8.
14
   Compare Loola v. State, 608 P.2d 36, 37 (Alaska 1980); Hinton v. State, 446 So. 2d 712, 713
n.1 (Fla. Dist. Ct. App. 1984); and Smith v. State, 356 A.2d 320, 326 (Md. App. 1976) to State v.
Martin, 360 N.W.2d 43, 50 (Wis. 1985) and People v. Savala, 195 Cal. Rptr. 193, 196–97 (Cal.
Ct. App. 1983).
15
   Super. Ct. R. Crim. P. 35(a). We note that this case concerns what powers the Superior Court
may exercise pursuant to Rule 35; Longford-Myers did not raise a double jeopardy claim.
Cf. White v. State, 576 A.2d 1322, 1324–29 (Del. 1990) (after appellate review vacates convictions
on one charge in a case, the Superior Court may increase sentence for remaining charges without
running afoul of the Double Jeopardy Clause); Dabney v. State, 12 A.3d 1101, 1102 (Del. 2009).



                                                7
        As the United States Supreme Court wrote in United States v. Pridegeon over

100 years ago, “the sound rule is that a sentence is legal so far as it is within the

provisions of law and the jurisdiction of the court over the person and offense, and

only void as to the excess, when such excess is separable, and may be dealt with

without disturbing the valid portion of the sentence.” 16 We agree that this is still the

sound rule.17

        Because it is undisputed that the sentence imposed for the drug dealing charge

at resentencing after Longford-Myers’ violation of probation was legal and because

the State has not alleged any other source of power for the Superior Court’s orders

from June and August 2018 other than Rule 35(a), 18 we find that the Superior Court

abused its discretion by modifying that sentence. It is therefore unnecessary for us

to decide whether 11 Del. C. § 1447A(d) prohibits suspended sentences.



16
   United States v. Pridegeon, 153 U.S. 48, 62 (1894).
17
   We recognize that our straightforward application of Rule 35(a) in this case results in an
aggregate sentence for Longford-Myers that is more favorable to him than the aggregate sentence
apparently contemplated by the sentencing judge at the February 6, 2018 resentencing. Any
approach to this issue will have a cost. But we think that it is critical that the parties and sentencing
judges, whether in the context of a contested sentencing or one where the State and defendant have
agreed to a sentencing recommendation, take care on the front end to fashion sentences that are
within the bounds of the law and that reflect a reasoned exercise of discretion within those bounds.
Permitting a do-over of every component of a sentence that involves multiple convictions because
the parties and the sentencing judge have misapplied the law as to one of those convictions
decreases the incentive to design sentencing orders carefully in the first instance and encourages
parties to think that mistakes, if and when discovered, can easily be fixed later on.
18
   The State argues that Rule 35(c) allows the Superior Court to “correct a sentence as a whole.”
Answering Br. 19 n.37 and accompanying text. But as the State also argues, Rule 35(c) is not
applicable to Longford-Myers’ case. Answering Br. 21 n.42 and accompanying text. We agree
with the State’s latter contention and do not address its former contention.

                                                   8
                            IV. CONCLUSION

      We conclude that the Superior Court’s August 23, 2018 Corrected Violation-

of-Probation Sentence Order exceeded the court’s powers under Rule 35(a), and,

therefore, was in error. That order is accordingly VACATED in part with respect to

the portion pertaining to VN12-05-1017-01 (drug dealing) and the matter

REMANDED with instructions to the Superior Court to reinstate the February 6,

2018 sentence order pertaining to VN12-05-1017-01 (drug dealing).




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