          IN THE SUPREME COURT OF THE STATE OF DELAWARE

    HARRY W. ANDERSON,                       §
                                             §
        Defendant Below,                     §   No. 479, 2015
        Appellant,                           §
                                             §
        v.                                   §   Court Below—Superior Court
                                             §   of the State of Delaware,
    STATE OF DELAWARE,                       §   in and for New Castle County
        Plaintiff Below,                     §   Cr. ID No. 1206018361
        Appellee.                            §
                                             §

                             Submitted: October 23, 2015
                             Decided:   December 18, 2015

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                         ORDER

       This 18th day of December 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, Harry W. Anderson, filed this appeal from the Superior

Court’s denial of his motion for correction of illegal sentence under Superior Court

Criminal Rule 35 (“Rule 35”). The State of Delaware has filed a motion to affirm




1
  Anderson’s request for leave to respond to the motion to affirm is 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 case.
the judgment below on the ground that it is manifest on the face of Anderson’s

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

         (2)    The record reflects that, in January 2013, Anderson pled guilty to two

counts of Burglary in the Third Degree. In exchange for the plea, the State

dismissed several other criminal charges. The State also agreed to seek habitual

offender sentencing for only one of Anderson’s convictions and to recommend a

sentence of no more than six years of Level V incarceration on that conviction. On

March 5, 2013, the State filed a motion to declare Anderson a habitual offender

under 11 Del. C. § 4214(a), which the Superior Court granted. On September 20,

2013, the Superior Court sentenced Anderson as a habitual offender on the first

count of burglary to six years of Level V incarceration. On the second count of

burglary, the Superior Court sentenced Anderson to three years of Level V

incarceration suspended for eighteen months of Level III probation. This Court

affirmed the Superior Court’s judgment on direct appeal.2

         (3)    On December 19, 2013, while his direct appeal was still pending,

Anderson filed a motion for reduction of sentence. On August 8, 2014, Anderson

filed a motion for correction of sentence. The Superior Court denied both motions

in an order dated August 15, 2014. Anderson did not appeal.




2
    Anderson v. State, 2014 WL 3511717 (Del. July 14, 2014).


                                                2
         (4)    On August 19, 2014, Anderson filed his second motion for correction

of sentence, which the Superior Court denied on September 8, 2014. Again,

Anderson did not appeal. On September 22, 2014, Anderson filed another motion

for correction or modification of his sentence. The Superior Court denied the

motion in an order dated December 23, 2014. This Court affirmed the Superior

Court’s judgment on appeal.3

         (5)    On July 17, 2015, Anderson filed a motion for correction of illegal

sentence under Superior Court Criminal Rule 35(a). Anderson claimed that his

sentence was illegal because 11 Del. C. § 4214 is unconstitutional. On August 4,

2015, the Superior Court denied Anderson’s motion for correction of illegal

sentence. This appeal followed.

         (6)    In his opening brief, Anderson argues that Section 4214 is

unconstitutionally vague in violation of the Due Process Clause and Equal

Protection Clause because it: (i) encourages arbitrary and discriminatory

enforcement by giving a sentencing court the discretion to impose a sentence of up

to life imprisonment; (ii) does not follow the established rules of the Sentencing

Reform Act of 1984; and (iii) does not give defendants with three previous felony

convictions notice that they are eligible for sentencing under Section 4214(a).

These claims are without merit.


3
    Anderson v. State, 2015 WL 1396360 (Del. Mar. 24, 2015).


                                               3
       (7)     Because Anderson does not raise a First Amendment claim, he must

show that Section 4214 is unconstitutionally vague as applied to him.4 He cannot

do so. This Court has previously upheld the constitutionality of the habitual

offender statute.5 Anderson cites no relevant authority to support his contention

that Section 4214 is unconstitutionally vague because it encourages arbitrary and

discriminatory enforcement by giving a sentencing court the discretion to impose a

sentence of up to life imprisonment. Although Anderson identifies a few cases in

which he claims defendants convicted of Burglary in the Third Degree received

shorter sentences under Section 4214(a) than he did, he does not allege or offer any

evidence that these sentencing differences were predicated on an unjustifiable

standard such as race, religion, or other arbitrary classification.6

       (8)     As to Anderson’s claim that Section 4214 is unconstitutional because

it does not comply with the Sentencing Reform Act of 1984, that is a federal

statute that applies to defendants convicted of federal crimes.                  Anderson was


4
  In re Hanks, 553 A.2d 1171, 1176 (Del. 1989).
5
  See, e.g., Johnson v. State, 2008 WL 5191835, at *1 (Del. Dec. 11, 2008) (rejecting claim that
habitual offender statute was unconstitutional because it did not require submission of predicate
felony convictions to jury); Williams v. State, 539 A.2d 164, 180 (Del. 1988) (holding
defendant’s life sentence under Section 4214(b) was not unconstitutionally disproportionate
sentence in violation of Eighth Amendment).
6
  Oyler v. Boles, 368 U.S. 448, 456 (1962) (holding failure to prosecute a large percentage of
habitual offenders under West Virginia habitual offender statute did not violate equal protection,
where selection was not “deliberately based upon an unjustifiable standard such as race, religion
or other arbitrary classification”); Ward v. State, 414 A.2d 499, 500 (Del. 1980) (rejecting
defendant’s claim that habitual offender statute was arbitrarily and capriciously applied to him in
absence of showing that selection of defendant was based on impermissible classification rather
than prosecutorial discretion).


                                                4
convicted under state law, not federal law. Anderson’s reliance on the United

States Supreme Court’s decision in Johnson v. United States7 is also misplaced. In

Johnson, the United States Supreme Court held that language in the Armed Career

Criminal Act, which does not appear in Section 4214 and is not at issue in this

case, violated the Due Process Clause because it was unconstitutionally vague.8

       (9)     Finally, Anderson did receive notice that he was eligible for

sentencing under Section 4214(a). Anderson signed a plea agreement reflecting

that he agreed he was eligible for sentencing under Section 4214(a) and that the

State intended to seek sentencing under Section 4214(a). As required by Section

4215(b), the State filed a motion to declare Anderson a habitual offender before

sentencing. To the extent Anderson claims this notice is insufficient, such a claim

is without merit.9 The Superior Court did not err in denying Anderson’s motion

for correction of illegal sentence.




7
  135 S. Ct. 2551 (2015)
8
  Id. at 2563.
9
  See, e.g., Oyler, 368 U.S. at 452-54 (rejecting claim that West Virginia habitual offender statute
violated due process because it did not require notice of habitual offender accusation before
trial); Eaddy v. State, 1996 WL 313499, at *1 (Del. May 30, 1996) (rejecting defendant’s claim
that he should have been informed of provisions of habitual offender statute before he was
eligible for habitual offender sentencing).


                                                 5
     NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED

and the judgment of the Superior Court is AFFIRMED.

                                   BY THE COURT:

                                   /s/ Karen L. Valihura
                                          Justice




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