IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
) ID No. 1410004172
) Cr. A. Nos. IN14-10-0750, etc.
)
HOWARD A. WALSH, )
)
Defendant. )

Submitted: September 13, 2016
Decided: December 12, 2016

ORDER DENYING MOTION TO
REDUCE AND CORRECT SENTENCE

This 12th day of December, 2016, upon consideration of the Defendant
Howard A. Walsh’s pro se “Motion for Sentence Reduction and Correction”
(D.I. 28), his supporting supplemental filing (D.I. 52), the State’s response
thereto (D.I. 54), and the record in this matter, it appears to the Court that:

(l) On May 13, 2015, HoWard A. Walsh Was convicted of three
separate counts of possession of a firearm by a person prohibited (“PFBPP”)

] . .
and other offenses. H1s sentencing occurred several months later, on

 

l See Verdict Form, State v. Walsh, I.D. No. 1410004172 (Del. Super. Ct. May 13,
2015) (D.I. 13).

November 6, 2015, after a pre-sentence investigative report Was prepared.
Walsh was sentenced to serve a cumulative 30-year term of imprisonment2

(2) Walsh docketed a timely direct appeal from his convictions and
sentence.3 While his appeal Was pending, Walsh timely filed this pro se
motion under Superior Court Criminal Rule 35 requesting “reduction and
correction” of the Level V terms of his sentence.4 The Court stayed and
deferred decision on Walsh’s motion While his appeal Was pending.5
Walsh’s convictions and sentence Were affirmed on direct appeal.6

(3) Walsh now seeks a reduction or “correction” of his sentence to
“three (3) years at Level Five, and possible [Sic] suspending two (2) years on

7

probation for each PFBPP charges.” Walsh posits three reasons for

 

2 See Sentencing Order, State v. Walsh, I.D. No. 1410004172 (Del. Super. Ct. Nov.
6, 2015). Walsh’s previous convictions for violent felonies subjected him to a ten-year
minimum mandatory sentence for each of his three PFBPP convictions. See DEL. CODE
ANN. tit. 11, § 1448(e)(l)(c) (2014).

3 see Not. of Appeai, Walsh v. s¢a¢e, NO. 612 (Del. filed Nov. 19, 2015).

4 Def.’s Mot. for Sent. Red. at 2-4.

5 See Order Staying & Deferring Decision on Rule 35(b) Mot., State v. Walsh, I.D.
No. 1410004172 (Del. Super. Ct. Dec. l7, 2015) (order staying Walsh’s Rule 35 motion
during pendency of appeal); Walsh v. State, 2016 WL 1165899 (Mar. l6, 2016)
(dismissing Walsh’s appeal of this Court’s election to defer consideration
of Walsh’s motion for reduction and correction of sentence until supreme court
decided Walsh’s direct appeal).

6 See Walsh v. State, 2016 WL 3751911 (Del. June 29, 2016).

7 Def.’s Mot. for Sent. Red. at 3.

reducing or correcting his term of imprisonment: (a) illegality, in that over
ten years have passed Since his last prior felony conviction and thus he does
not think he qualifies for ll Del. C. § l448(e)(l)(c)’s enhanced mandatory
minimum sentence; (b) an ex post facto argument, in that his prior
convictions occurred before the 1994 amendment of Delaware’s person
prohibited statute; and (c) ineffective assistance of counsel, in that he
believes his trial counsel improperly allowed his New York burglary
conviction to be used to enhance his sentence.8

(4) The Court considers Walsh’s first two arguments under
Superior Court Criminal Rule 35(a).9 Rule 35(a) permits the Court to
correct an illegal sentence, but does not permit the Court to “re-examine
errors occurring at the trial or other proceedings prior to the imposition of

nl()

sentence. In fact, “Rule 35(a) presupposes a valid conviction.”]] Thus,

relief under Rule 35(a) is available only when a sentence exceeds statutorily

 

8 See ia'. at 3-4; Def.’s Status Rpt. at 2 (D.I. 52).
9 Dei. super Ct. Crim. R. 35(3).

10 Brittingham v. State, 705 A.2d 577, 578 (1998) (quoting Hill v. Um'ted States, 368
U.S. 424, 430 (1962)).

“ Buchanan v_ smie, 2013 WL 5918802, ar *i (Del. Nov. i, 2013) (citing
Bri'ttingham, 705 A.2d at 578).

_3_

authorized limits, violates the Double Jeopardy clause, is ambiguous, or is
internally contradictory.12

(5) Walsh first argues his sentence is illegal because the two
felonies that enhanced his mandatory minimum term occurred more than ten
years prior to his current crimes.13 Under Delaware law, “any person who is
a prohibited person . . . and who knowingly possesses, purchases, owns or
controls a firearm . . . while so prohibited shall receive a minimum sentence
of . . . [t]en years at Level V, if the person has been convicted on 2 or more
separate occasions of any violent felony.”]4 Nowhere in § 1448(€)(1)(c)
does it specify that the two prior aggravating convictions must be within ten
years of the current charge.15

(6) On Walsh’s direct appeal, the Delaware Supreme Court, relying
on § 1448(e)(1)(c)’s unambiguous language, specifically held that that

sentencing enhancer “does not require that the previous violent felony

 

‘2 See Brimngham, 705 A.2d at 578.
13 Def.’s Mot. for Sent. Red. at 2.

14 DEL. CODE ANN. tit ii, § 1448(@)(1)(¢) (2014).
15 Compare id., with id. at § 1448(e)(1)(b) (providing that a person prohibited with a
firearm “shall receive a minimum sentence of . . . [f]ive years at Level V”, but only “if
the person does so within 10 years of the date of conviction for any violent felony or the
date of termination of all periods of incarceration or confinement imposed pursuant to
said conviction, whichever is the later date”).

_4_

convictions occur within ten years of the PFBPP conviction.”16 As such,
Walsh’s first argument that his sentence is “illegal” and must be corrected
on this basis is meritless

(7) Walsh’s second claim _ that use of his two prior convictions to
enhance his PFBPP sentences violates the Ex Post Facto clause because
those prior convictions were incurred before 1994 - was also specifically
rejected on Walsh’s direct appeal.17 He sentence needs no “correction” on
this basis either.

(8) But Walsh argues anew that even if the passage of time did not
matter, his prior burglary felony from New York was not “violent,” and so
he is not subject to § 1448(€)(1)(c)’s enhanced sentencing provision. Walsh
was convicted of assault in the second degree and burglary in the second
degree in New York. He does not contend that the assault conviction is not
a violent felony under 11 Del. C. § 1448(e)(1)(c). But he does argue that his
burglary in the second degree conviction did not constitute a “violent
felony.”

(9) As our supreme court noted on direct appeal, Walsh’s attorney

agreed that his New York burglary conviction constituted a violent felony.

 

‘6 Walsh v. Smre, 2016 WL 3751911, at *3.

17 See id. (holding that Walsh’s “sentences do not violate the Ex Post Facto

clause.”).

_5_

Counsel agreed for good reason. The extant New York burglary statute18
and Delaware’s burglary statute19 are materially identical. Walsh’s second
degree burglary conviction under New York law was for “an offense . . .
which is the same as, or equivalent to” Delaware’s second degree burglary

and was, therefore, properly considered a “violent felony” for calculating his

 

The 1988 New York burglary second degree statute read;

“A person is guilty of burglary in the second degree when he knowingly enters or
remains unlawfully in a building with intent to commit a crime therein, and when:
1. ln effecting entry or while in the building or in immediate flight
therefrom, he or another participant in the crime:
(a) ls armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a participant in
the crime; or
(c) Uses or threatens the immediate use of a dangerous instrument;
or
(d) Displays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm; or
2. The building is a dwelling.”

N.Y. PENAL LAW § 140.25 (McKinney 1981).
Delaware’s burglary second degree statute reads:

“(a) A person is guilty of burglary in the second degree when the person
knowingly enters or remains unlawfully:
(l) In a dwelling with intent to commit a crime therein; or
(2) ln a building and when, in effecting entry or while in the building or in
immediate flight therefrom, the person or another participant in the crime:
a. ls armed with explosives or a deadly weapon; or
b. Causes physical injury to any person who is not a participant in
the crime.”

DEL. CoDE ANN. tit. 11, § 825 (2014).

_6_

sentence under § 1448(e)(1)(c).20 Walsh’s argument that the New York
burglary conviction should not be counted towards the enhanced PFBPP
minimum mandatory is without merit.

(10) To the extent that Walsh’s third claim is an allegation of
ineffective assistance of counsel - i.e., that the integrity of his sentence
might now be questioned due to events at trial or sentencing - it is not
cognizable under Rule 35(a).21 And just as a sentence correction application
does, a motion to reduce a sentence under Rule 35(b) presupposes a valid

conviction and sentence proceedings22 lt is not a vehicle to attack the

 

20 See DEL. CODE ANN. tit 11, § 4201(e) (2014) (lisdng burglary in the seeend
degree as a “violent felony”); see also ia'. at 4215A(a) (providing that “if a previous
conviction for a specified offense would make the defendant liable to a punishment
greater than that which may be imposed upon a person not so convicted, that previous
conviction shall make the defendant liable to the greater punishment if that previous
conviction was . . . [f]or an offense specified in the laws of any other state . . . which is
the same as, or equivalent to, an offense specified in the laws of this State.”).

2‘ See Childress v. Sm¢e, 1999 WL 971087, at *1 (Del. oei. 5, 1999) (“The ‘nerrew
function’ of Rule 35(a) is to permit the correction of an illegal sentence [or a sentence
imposed in an illegal manner] . . . . Rule 61 governs the procedure upon which a person
may attack a conviction.”).

22 See stare v. Lewis, 797 A.2d 1198, 1200 (Del. 2002) (“Ruie 61 addresses pest-
conviction relief, which requires a legal challenge to the conviction, whereas Rule 35(b)
allows a reduction of sentence, without regard to the legality of the conviction.”). See
also Poole v. Unitea' States, 250 F.2d 396, 401 (D.C. Cir. 1957) (under the federal
analogue, a Rule 35 motion for reduction of sentence “is essentially a plea for leniency
and presupposes a valid conviction . . . . lt is wholly inappropriate to test [via Rule 35]
the propriety of” the underlying proceedings).

_7_

validity of the conviction or related proceedings23 lf relief for such a claim
is even available to Walsh, it would only be so via postconviction
proceedings which provide a procedure for a criminal defendant to seek to
set aside his conviction, or, in certain limited circumstances, his sentence.24
Walsh has motion for postconviction relief pending before this Court.25

(11) Lastly, the Court has no discretion to otherwise reduce Walsh’s
sentence under Rule 35(b). The intent of Superior Court Criminal Rule
35(b) has historically been to provide a reasonable period for the Court to
consider alteration of its sentencing judgments26 Where a motion for

reduction of sentence is filed within 90 days of sentencing, the Court has

 

23 see, e.g., Sm¢e v. Rivem, 2014 WL 3894274, at *2 (Del. super. Ct. Aug. 11,
2014); State v. Hofmann, 2014 WL 3955714, at *2 (Del. Super. Ct. Aug. 12, 2014).

24 See Wilson v. State, 2006 WL 1291369, at *l n.3 (Del. May 9, 2006) (explaining
that this Court should “consider the true substance of [an inmate’s] claim” to discern
whether it is relief either under Rule 61 or under Rule 35 that is cognizable). See also
Brawley v. State, 1992 WL 353838, at *1 (Del. Oct. 7, 1992) (challenge of an attorney’s
effectiveness at sentencing done via postconviction proceedings at which inmate has the
burden of showing “there is a reasonable probability that, but for the counsel’s error, the
result of [his] sentencing would have been different.”) (internal citations omitted);
Franklin v. State, 2006 WL 1374675, at *2 (Del. May 17, 2006) (same); State v. Torres,
2015 WL 5969686, at *ll (Del. Super. Ct. Oct. 2, 2015) (same); State v. Colburn, 2016
WL 3248222, at *2 (Del. Super. Ct. June 1, 2016), aff’a', 2016 WL 5845778 (Del. Oct. 5,
2016) (same).

25 Def.’s Mot. for Postconviction Relief, State v. Walsh, l.D. No. 1410004172 (Del.
Super. Ct. Aug. 1, 2016) (D.l. 51). Del. Super. Ct. Crim. R. 61 (rule governing Court’s

postconviction relief procedures).

26 see Jehnsen v. smie, 234 A.2d 447, 448 (Del. 1967) (per curiam).

_8_

broad discretion to decide if it should alter its judgment.27 “The reason for
such a rule is to give a sentencing judge a second chance to consider whether
the initial sentence is appropriate.”28 But, while the Court has wide
discretion to reduce a sentence upon a timely Rule 35 application, the Court
has no authority to reduce or suspend the mandatory portion of any
substantive statutory minimum sentence.29

(12) The Court was constrained to impose at least the ten-year
mandatory prison term for each PFBPP charge and was, and is, statutorily
prohibited from ordering any of those prison terms to run concurrently.30
And so, Walsh’s 30-year term of unsuspended imprisonment is comprised

wholly of minimum terms that must be imposed, cannot be suspended, must

 

27 See Hewelt v. State, 2014 WL 5020251, at *1 (Del. Oct. 7, 2014) (“When, as here,
a motion for reduction of sentence is filed within ninety days of sentencing, the Superior
Court has broad discretion to decide whether to alter its judgment.”).

28 stare v. Reed, 2014 wL 7148921, at *2 (Del. snper. Ct. Dee. 16, 2014).

29 stare v. sturgis 947 A.2d 1087, 1092 (Del. 2008) (“snpener Ceun Rule er
Criminal Procedure 35(b) provides no authority for a reduction or suspension of the
mandatory portion of a substantive statutory minimum sentence.”) (emphasis in original).

30 see DEL. CODE ANN. tit 11, § 3901(d) (snpp. 2014) (“[N]e sentence er
confinement . . . shall be made to run concurrently with any other sentence of
confinement imposed . . . for any sentence for possession of a firearm by a person
prohibited where the criminal defendant was previously convicted of a Title 11 violent
felony.”); ia'. at § 3901(e) (under § 3901, “‘Title 11 violent felony’ means . . . any offense
set forth under the laws of . . . any other state . . . which is the same as or equivalent to
any of the offenses designated as a Title 11 offense identified in § 4201(c) . . . .”).

_9_

run consecutively, and which the Court has no authority to reduce under
Rule 35.3‘

(13) Accordingly, the Court must DENY Walsh’s request to reduce
or “correct” his term of imprisonment

SO ORDERED this 12th day of December, 2016.

%l..“,)

Paul R. Wallace, Judge

Original to Prothonotary

cc: Zachary Rosen, Deputy Attomey General
Mr. Howard Walsh, pro se
lnvestigative Services Office

 

21 see srurgis, 947 A.2d et 1092; Richmond v. smie, 2016 WL 6092472, at *2 (Del.
oet. 16, 2016).

_1()_

