         IN THE SUPREME COURT OF THE STATE OF DELAWARE

  DALE JABBAR BOWEN,                      §
                                          §
        Defendant Below,                  §   No. 81, 2018
        Appellant,                        §
                                          §   Court Below—Superior Court
        v.                                §   of the State of Delaware
                                          §
  STATE OF DELAWARE,                      §   Cr. ID No. 0410015936 (N)
        Plaintiff Below,                  §
        Appellee.                         §

                           Submitted: April 5, 2018
                            Decided: May 10, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                     ORDER

      This 10th day of May 2018, 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, Dale Jabbar Bowen, filed this appeal from the Superior

Court’s denial of his motion for sentence correction. The State of Delaware has filed

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

of Bowen’s opening brief that his appeal is without merit. We agree and affirm.

      (2)    The record reflects that, on October 13, 2005, a Superior Court jury

found Bowen guilty of multiple crimes including Robbery in the First Degree and

Possession of a Deadly Weapon During the Commission of a Felony (“PDWDCF”).

On October 24, 2005, the State filed a motion to declare Bowen a habitual offender
under 11 Del. C. § 4214(a). The State identified the following convictions in support

of the motion: (i) Distribution of Cocaine, committed in Virginia in August 1998;

(ii) Attempted Obtaining Money by False Pretenses, committed in Virginia in

October 1999; (iii) Receiving Stolen Property, committed in Delaware in January

2002 and two counts of Theft, committed in Delaware in April 2002; (iv) Robbery

in the Second Degree, committed in Delaware in August 2002. At the habitual

offender hearing on December 2, 2005, Bowen’s counsel stated that there was no

good faith basis to challenge the motion. The Superior Court declared Bowen a

habitual offender and sentenced him to fifty-six years of Level V incarceration

(which included fifty years as a habitual offender), suspended after fifty-four years

for two years of Level II probation. This Court affirmed the Superior Court’s

judgment on direct appeal.1

         (3)    On June 21, 2017, Bowen filed a motion for sentence correction.

Bowen argued that the State’s motion to declare him a habitual offender was

incorrect because the conduct underlying his Virginia felony conviction for

Obtaining Money by False Pretense did not constitute a felony under Delaware law

and therefore his habitual offender sentences for Robbery in the First Degree and

PDWDCF should be vacated. The State opposed the motion. The Superior Court

denied the motion, concluding that the State had proven the existence of three


1
    Bowen v. State, 2006 WL 2073058 (Del. July 24, 2006).


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predicate convictions and that the inclusion of a non-qualifying conviction did not

invalidate the Superior Court’s approval of the motion to declare Bowen a habitual

offender. This appeal followed.

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

sentence for abuse of discretion.2 To the extent the claim involves a question of law,

we review the claim de novo.3 As he did below, Bowen argues that the State’s

motion to declare him a habitual offender was erroneous because it included his

Virginia conviction for Obtaining Money by False Pretense, which did not qualify

as a predicate offense under § 4214(a). Bowen also argues that the non-suspended

fifty-four year Level V sentence for his crimes, including the two convictions for

which he was sentenced as a habitual offender, exceeds the forty-five year term for

a life sentence under § 4214(a). Bowen did not raise this claim below and we will

not consider it for the first time on appeal.4

       (5)     Bowen’s argument that the State’s habitual offender motion was

erroneous is a claim that his sentence was imposed in an illegal manner. 5 Absent

extraordinary circumstances or an application by the Department of Correction



2
  Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
3
  Id.
4
  Supr. Ct. R. 8. We note that this claim depends upon a misinterpretation of Crosby v. State, 824
A.2d 894 (Del. 2003) and Evans v. State, 872 A.2d 539 (Del. 2005).
5
  See, e.g., Marvel v. State, 2009 WL 2158107, at *1 (Del. July 21, 2009) (appellant’s claim that
State’s habitual offender motion was insufficient to identify the predicate felonies or identify
appellant was a claim that the sentence was imposed in an illegal manner).


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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.6 Bowen filed his motion for sentence correction more

than ninety days after the imposition of his sentence. The Department of Correction

has not filed an application under 11 Del. C. § 4217.

       (6)    Bowen has not shown any extraordinary circumstances warranting

consideration of his untimely motion for sentence correction. Bowen did not oppose

the State’s habitual offender petition in 2005 and he does not dispute that he was

convicted of three predicate offenses under § 4214(a). We affirm the Superior

Court’s denial of Bowen’s motion for sentence correction on the independent and

alternative ground that it was time-barred under Superior Court Criminal Rule

35(b).7

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

and the judgment of the Superior Court is AFFIRMED.


                                            BY THE COURT:

                                            /s/ James T. Vaughn, Jr.
                                                  Justice



6
  Super. Ct. Crim. R. 35(a), (b).
7
  Unitrin, Inc. v. American Gen. Corp., 651 A.2d 1361, 1390 (Del. 1995) (noting that the Delaware
Supreme Court may affirm a trial court's judgment for reasons different than those articulated by
the trial court).


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