          IN THE SUPREME COURT OF THE STATE OF DELAWARE

 DAVID C. DAVIS,                        §
                                        §
        Defendant Below,                §    No. 578, 2015
        Appellant,                      §
                                        §    Court Below—Superior Court
        v.                              §    of the State of Delaware
                                        §
 STATE OF DELAWARE,                     §    Cr. ID No. 1212002650
        Plaintiff Below,                §
        Appellee.                       §

                           Submitted: December 14, 2015
                           Decided:   January 28, 2016

Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

                                     ORDER

        This 28th day of January 2016, 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, David C. Davis, filed this appeal from the Superior

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

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

face of Davis’ opening brief that his appeal is without merit. We agree and affirm.

        (2)   The record reflects that, on March 20, 2014, Davis pled guilty to

Terroristic Threatening in the First Degree and Arson in the Third Degree. As part

of the plea agreement, Davis agreed that he was eligible for habitual offender
sentencing under 11 Del. C. § 4214(a). The State indicated that it would seek

habitual offender sentencing for the Terroristic Threatening in the First Degree

charge.

      (3)    On March 25, 2014, the State filed a motion to declare Davis an

habitual offender under 11 Del. C. § 4214(a). The Superior Court declared Davis

an habitual offender on June 6, 2014. Davis was sentenced as follows: (i) for

Reckless Endangering in the First Degree, as an habitual offender, ten years of

Level V incarceration; (ii) for Arson in the Third Degree, one year of Level V

incarceration, suspended for 1 one year of Level IV at the Department of

Correction’s discretion, suspended after six months for six months of Level III

probation. Davis did not appeal the Superior Courts judgment. Instead, Davis

filed unsuccessful motions for reduction of sentence, postconviction relief under

Superior Court Criminal Rule 61, and sentencing transcripts, discovery, and police

reports.

      (4)    On September 21, 2015, Davis filed a motion for correction of

sentence. The Superior Court denied the motion, concluding that the sentence was

imposed under a plea agreement, the motion was untimely and there were no

extraordinary circumstances supporting consideration of the motion, the motion

was repetitive, the sentence was appropriate for all of the reasons stated at the time

of sentencing, and Davis had an extensive criminal history. This appeal followed.



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On appeal, Davis requested the indictment, discovery, and sentencing transcript at

State expense. The Superior Court denied Davis’ request.

       (5)    In his opening brief, Davis contends that: (i) the Superior Court erred

in treating his motion for correction of sentence like a motion under Rule 35(b)

instead of Rule 35(a); (ii) his sentence is illegal because it includes probation and

no probation can be imposed under 11 Del. C. § 4214; (iii) there are double

jeopardy violations; (iv) he did not receive a proper habitual offender hearing

under 11 Del. C. § 4214; (v) the Superior Court failed to state its reasons for

deviating from the guidelines in the Delaware Sentencing Accountability

Commission Benchbook (“SENTAC Guidelines”); (vi) he should have been

provided with treatment; and (vii) the Superior Court erred in denying his request

for his indictment, discovery, and sentencing transcript.

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

sentence for abuse of discretion.1 To the extent the claim involves a question of

law, we review the claim de novo.2 A motion to correct an illegal sentence under

Rule 35(a) may be filed at any time. 3 A sentence is illegal if it exceeds statutory

limits, violates double jeopardy, is ambiguous with respect to the time and manner

in which it is to be served, is internally contradictory, omits a term required to be


1
  Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
2
  Id.
3
  Super. Ct. R. 35(a).


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imposed by statute, is uncertain as to the substance of the sentence, or is a sentence

that the judgment of conviction did not authorize. 4 A motion to correct a sentence

imposed in an illegal manner or a motion for reduction of sentence filed more than

ninety days after imposition of the sentence will be considered only in

extraordinary circumstances or if the Department of Correction files an application

under 11 Del. C. § 4217.5

       (7)    Only two of Davis’ claims—that his sentence is illegal because it

includes probation in violation of 11 Del. C. § 4214 and because it violates double

jeopardy—implicate Rule 35(a) and did not have to be filed within ninety days of

the imposition of Davis’ sentence. Both of these claims are without merit. First,

Davis was not sentenced as an habitual offender for Arson in the Third Degree,

which is the sentence that included probation.            Second, Davis’ knowing and

voluntary guilty plea waives any claim of a double jeopardy violation. 6

       (8)    Davis’ claims regarding his habitual offender hearing and the

Superior Court’s deviation from SENTAC Guidelines relate to the manner in

which his sentence was imposed.            Absent extraordinary circumstances or an

application by the Department of Correction under 11 Del. C. § 4217, the Superior

Court will not consider a motion for correction of a sentence imposed in an illegal

4
  Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
5
  Super. Ct. Crim. R. 35(a), (b).
6
  Lanzo v. State, 2015 WL 5120872, at *1 (Del. Aug. 22, 2013); Bowers v. State, 2007 WL
2359553, at *1 (Del. Aug. 20, 2007).


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manner filed more than ninety days after imposition of the sentence. 7 Davis filed

his motion for correction of sentence more than ninety days after the imposition of

his sentence. Davis has not shown any extraordinary circumstances warranting

consideration of his untimely motion for correction of sentence.         The record

reflects that Davis agreed he was eligible for habitual offender sentencing as part

of his guilty plea and that the sentencing judge was concerned by Davis’ lengthy

criminal history and limited remorse. No application was filed by the Department

of Correction under 11 Del. C. § 4217.

          (9)    As to Davis’ claim that he should have received treatment as part of

his sentence, this claim is contrary to the terms of his sentence. As part of his

sentence, Davis must complete an anger management treatment program, receive a

mental health evaluation and follow any recommendations for counseling and

treatment, and receive a substance abuse evaluation and follow any

recommendations for treatment, counseling, and screening. To the extent Davis is

claiming he should have received treatment as part of his sentences in different

criminal proceedings, that claim is outside the scope of this appeal.

          (10) Finally, the Superior Court did not err in denying Davis’ request for

his indictment, sentencing transcript, and discovery at State expense. Davis claims

that he needs these documents in order to raise claims of ineffective assistance of


7
    See supra ¶ 6.


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counsel, determine whether there was a proper habitual offender hearing, and

review whether his charges were legal. This claim is without merit.

       (11) The proper procedural vehicle for an ineffective assistance of counsel

claim is Rule 61, not Rule 35.8 Davis filed a motion for correction of sentence

under Rule 35, not a motion for postconviction relief under Rule 61. Davis’

attacks on his charges are also outside the scope of Rule 35(a). 9 As previously

discussed, Davis’ claim regarding the habitual offender hearing was untimely. 10

Thus, none of the documents sought by Davis were necessary for his motion for

correction of sentence and the Superior Court did not err in denying Davis’ motion

for these documents.

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

and the judgment of the Superior Court is AFFIRMED.


                                          BY THE COURT:

                                          /s/ Collins J. Seitz, Jr.
                                                 Justice




8
  Cochran v. State, 2007 WL 28182870, *2 (Del. Sept. 28, 2007); Glenn v. State, 2003 WL
21714083, at *1 (Del. July 21, 2003).
9
  Brittingham v. State, 705 A.2d at 578.
10
   See supra ¶ 10.


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