           IN THE SUPREME COURT OF THE STATE OF DELAWARE

DARRYL L. WARNICK,                      §
                                        §     No. 17, 2017
      Defendant Below,                  §
      Appellant,                        §     Court Below—Superior Court of the
                                        §     State of Delaware
      v.                                §
                                        §     Cr. ID No. 1203011242
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                          Submitted: January 31, 2017
                          Decided:   March 20, 2017

Before HOLLAND, VALIHURA, and SEITZ, Justices.

                                     ORDER

      This 20th day of March 2017, upon consideration of the appellant’s opening

brief, the State’s motion to affirm, the appellant’s response to the State’s

contention that this appeal should be dismissed as untimely filed, and the Superior

Court record, it appears to the Court that:

      (1)    On January 10, 2017, the appellant, Darryl L. Warnick, filed this

appeal from the Superior Court’s order dated December 8, 2016, denying his

motion for correction of sentence. As a preliminary matter, we address the State’s

contention that the appeal should be dismissed as untimely filed.
         (2)     Under Supreme Court Rule 6, a notice of appeal in any postconviction

proceeding must be filed within thirty days after entry upon the docket of the order

from which the appeal is taken.1 In this case, because the December 8 order on

appeal was added to the court docket on December 27, 2016,2 we conclude that

Warnick’s notice of appeal was timely filed on January 10, 2017.

         (3)     The record reflects that Warnick was indicted in May 2012 for eighty-

six offenses: two counts of child abuse; forty counts of rape in the second degree;

two counts of continuous sexual abuse of a child; forty counts of unlawful sexual

contact in the second degree; and two counts of endangering the welfare of a child.

On May 24, 2012, Warnick pled guilty to two counts of rape in the second degree

and was sentenced to a total of twenty-three years at Level V followed by

probation.       In exchange for Warnick’s guilty plea, the State entered a nolle

prosequi on the other eighty-four counts in the indictment.

         (4)     Warnick did not file a direct appeal from his guilty plea conviction

and sentence. He did, however, filed a motion for postconviction relief under

Superior Court Criminal Rule 61. Warnick’s postconviction motion was referred

to a Superior Court Commissioner. On October 25, 2013, the Commissioner

issued a report recommending that the motion was without merit and should be


1
    Del. Supr. Ct. R. 6(a)(iv).
2
    See docket at 53, State v. Warnick, Del. Super, Cr. ID No. 1203011242 (Dec. 27, 2016) (order).

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denied. By order dated October 16, 2015, a Superior Court Judge adopted the

report and denied Warnick’s motion for postconviction relief.3

       (5)     On November 29, 2016, Warnick filed a motion for correction of

illegal sentence under Superior Court Criminal Rule 35(a).                   By order dated

December 8, 2016, the Superior Court denied the motion. This appeal followed.

       (6)     It is well-established that the grounds for a motion seeking a

correction of sentence under Rule 35(a) must be limited to alleged errors within the

sentence itself.4 In his opening brief on appeal, Warnick claims, as he did in his

motion, that his sentence is illegal because the State had insufficient evidence to

indict him for the two counts of second degree rape that formed the basis of his

guilty plea.

       (7)     Warnick’s attempt to use a motion for correction of sentence as a

means to challenge his indictment is outside the limited scope of Rule 35(a).5 The

narrow function of Rule 35(a) is to “permit correction of an illegal sentence, not to


3
  State v. Warnick, 2015 WL 6324576 (Del. Super. Oct. 16, 2015). The record reflects that in the
two-year period between the Commissioner’s report and the Superior Court’s order denying
Warnick’s postconviction motion, Warnick was appointed counsel to represent him on appeal
from the Commissioner’s report. After reviewing the case, Warnick’s counsel filed a motion to
withdraw and supporting memorandum, and Warnick filed a response. By order dated October
7, 2015, the Superior Court granted counsel’s motion to withdraw.
4
  Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
5
  Accord Miller v. State, 2017 WL 747758 (Del. Feb. 24, 2017) (determining that the defendant’s
“claims of innocence, improper charging, and illegal seizure of evidence were not properly
raised in a motion for correction of sentence and were simply [his] attempt to avoid the
procedural bars of Superior Court Criminal Rule 61”).

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re-examine errors occurring at the trial or other proceedings prior to the imposition

of sentence.”6 Having concluded that Warnick is not entitled to relief under Rule

35(a), the Court will affirm the Superior Court’s judgment.

       NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is

GRANTED. The judgment of the Superior Court is AFFIRMED.

                                          BY THE COURT:

                                          /s/ Karen L. Valihura
                                          Justice




6
 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998) (quoting Hill v. United States, 368 U.S.
424, 430 (1962)).

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