         IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHARLES DUFFY,                           §
                                         §
       Defendant Below–                  §   No. 194, 2019
       Appellant,                        §
                                         §   Court Below–Superior Court
       v.                                §   of the State of Delaware
                                         §
STATE OF DELAWARE,                       §   Cr. No. 1709009959 (S)
                                         §
       Plaintiff Below–                  §
       Appellee.                         §
                                         §

                          Submitted: June 4, 2019
                          Decided:   July 31, 2019


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

                                   ORDER

      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, Charles Duffy, appeals the Superior Court’s denial of his

motion for correction of sentence. The State has moved to affirm the Superior

Court’s judgment on the ground that it is manifest on the face of Duffy’s opening

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

      (2)    The record reflects that Duffy pleaded guilty to one count of violation

of privacy on January 12, 2018. As part of the plea agreement, Duffy agreed that he

was a habitual offender based in part on prior rape convictions and the State agreed
to cap its sentencing recommendation to seven years of Level V incarceration. The

Superior Court granted the State’s motion to declare Duffy a habitual offender under

11 Del. C. § 4214(a) and ordered a presentence investigation. On April 13, 2018,

the Superior Court sentenced Duffy to six years of Level V incarceration with credit

for time served. Duffy filed a notice of appeal with this Court but withdrew his

appeal before a briefing schedule was issued. Duffy then filed a motion for

modification of sentence, which the Superior Court denied. On July 12, 2018, Duffy

filed a motion for postconviction relief. The Superior Court denied the motion1 and

we affirmed on appeal.2

          (3)   On March 8, 2019, Duffy filed a motion for correction of sentence. The

Superior Court denied the motion and this appeal followed.

          (4)   We review the denial of a motion for correction of sentence for abuse

of discretion.3 To the extent a claim involves a question of law, we review the claim

de novo.4 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




1
    State v. Duffy, 2018 WL 4002244 (Del. Super. Ct. Aug. 15, 2018).
2
    Duffy v. State, 2019 WL 459982 (Del. Feb. 5, 2019).
3
    Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
4
    Id.


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internally contradictory, omits a term required to be imposed by statute, is uncertain

as to its substance, or is a sentence that the judgment of conviction did not authorize.5

         (5)     On appeal, Duffy argues that (i) because violation of privacy is not a

violent felony, he was improperly sentenced under the habitual offender statute; and

(ii) his sentence constitutes cruel and unusual punishment in violation of the Eighth

Amendment. Duffy also complains that the Superior Court did not address his

motion on its merits. We find no merit to Duffy’s claims and affirm the Superior

Court’s decision to deny his motion for correction of an illegal sentence.

         (6)     Duffy pleaded guilty to violation of privacy under 11 Del. C.

§ 1335(a)(7), a Class G felony. Normally, a conviction for a Class G felony carries

a maximum sentence of two years of Level V incarceration.6 However, the Superior

Court sentenced Duffy as a habitual offender under § 4214(a). Section 4214(a)

provides, in relevant part:

         Any person . . . who has been 3 times convicted of any felony under the
         laws of this State, and/or any other state, United States or any territory
         of the United States, and who shall thereafter be convicted of a
         subsequent felony is declared to be an habitual offender. The court,
         upon the State’s petition, shall impose the applicable minimum
         sentence pursuant to subsection (b), (c), or (d) of this section and may,
         in its discretion, impose a sentence of up to life imprisonment . . . .
         Under no circumstances may the sentence imposed pursuant to this



5
    Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
6
    11 Del. C. § 4205(b)(7).


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         section be less than the minimum sentence provided for by the felony
         prompting the person’s designation as a habitual offender.7

         Duffy argues that § 4214 requires a sentence to be imposed under subsection

(b), (c), or (d), and, because those subsections do not apply to him, he was

improperly sentenced as a habitual offender. But—and as emphasized above—

subsections (b), (c), and (d) establish the minimum sentence that must be imposed

when the felony prompting the defendant’s habitual offender status is a violent one.

Because Duffy’s conviction is for a nonviolent felony, his sentence is governed by

subsection (a). Under § 4214(a), the Superior Court was authorized by statute to

impose anywhere from the minimum sentence for violation of privacy—no Level V

time—up to life imprisonment. Accordingly, the Superior Court’s six-year sentence

fell within the range of sentences permitted under § 4214(a) and was not illegal.

         (7)     Duffy next argues his sentence constitutes cruel and unusual

punishment as prohibited by the Eighth Amendment to the United States

Constitution. Because this argument was not raised below, we will not ordinarily

entertain it.8      In any event, Duffy’s argument is unavailing.              A sentence is

unconstitutional if it is “grossly disproportionate” to the conduct being punished.9


7
    11 Del. C. § 4214(a) (emphasis added).
8
  Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for
review; provided, however, that when the interests of justice so require, the Court may consider
and determine any question not so presented.”).
9
    Crosby v. State, 824 A.2d 894, 908 (Del. 2003).


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In the habitual offender context, the defendant’s criminal history is taken into

account.10 Habitual offender statutes allow courts to punish more severely those

who have demonstrated, by repeated criminal acts, that they are incapable of

conforming to the norms of society as established by its criminal law. 11 Here,

Duffy’s criminal history included convictions for burglary, aggravated robbery,

forcible rape, attempted rape, and first degree rape. At the time Duffy committed

the offense that triggered the State’s motion to declare him a habitual offender, he

was on parole for a rape conviction. Under the circumstances, Duffy’s six-year was

not grossly disproportionate to the criminal conduct being punished.12

         (8)     As a final matter, Duffy complains that the Superior Court denied his

motion for correction of illegal sentence without specifically addressing the merits

of his motion. In denying Duffy’s motion, the Superior Court noted that Duffy

pleaded guilty to violation of privacy and, during the plea colloquy, admitted that he

was a habitual offender. While the Superior Court could have elaborated on the




10
    Id. (identifying three helpful factors for the Court to consider when comparing sentences
imposed in habitual offender cases: (i) the length of the prison term in real time; (ii) the sentence-
triggering criminal conduct; and (iii) the defendant’s criminal history).
11
     McCleaf v. State, 2004 WL 344423, at *1 (Del. Feb. 5, 2004).
12
   See id. (concluding the defendant’s ten-year sentence imposed under § 4214(a) for a nonviolent
felony did not violate the Eighth Amendment ban on cruel and unusual punishment).


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reasons why Duffy’s sentence was legal, the order adequately sets forth the trial

court’s reasons for denying the motion and allows for appellate review.13

         NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.



                                             BY THE COURT:


                                             /s/ Karen L. Valihura
                                                    Justice




13
     See Crawford v. State, 2003 WL 1572124, at *1 (Del. Mar. 25, 2003).


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