          IN THE SUPREME COURT OF THE STATE OF DELAWARE

    DEVON P. CLARK,                             §
                                                §
        Defendant Below,                        §   No. 214, 2017
        Appellant,                              §
                                                §   Court Below—Superior Court
        v.                                      §   of the State of Delaware
                                                §
    STATE OF DELAWARE,                          §   Cr. ID No. 0806025325 (N)
                                                §
        Plaintiff Below,                        §
        Appellee.                               §

                               Submitted: February 23, 2018
                               Decided:   April 24, 2018

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

                                           ORDER

       After consideration of the parties’ briefs1 and the record below, the Court

concludes that:

       (1)     The appellant, Devon P. Clark, filed this appeal from a Superior Court

order denying his motion to appoint conflict counsel to file an application for

sentence modification under 11 Del. C. § 4214(f).2 The Superior Court held Clark




1
  We have not considered the appellant’s untimely reply brief, which was filed more than thirty
days after the answering brief. See Supr. Ct. R. 15(a)(iii) (providing that reply brief must be filed
not later than fifteen days after service of the answering brief).
2
  A notice to show cause directing Clark to show why this appeal should not be dismissed based
on this Court’s lack of jurisdiction to hear a criminal interlocutory appeal was discharged after
Clark and the State argued that the Superior Court order on appeal was a final order. The Superior
Court order on appeal left Clark without any further avenue to pursue relief under § 4214(f).
was ineligible for relief under § 4214(f) and denied his motion to appoint conflict

counsel. We affirm the Superior Court’s judgment.

         (2)    The record reflects that, on April 9, 2009, Clark pled guilty to Robbery

in the Second Degree and Criminal Impersonation. The State filed a motion to

declare Clark a habitual offender under § 4214(a). The motion was based on the

following felony convictions: (i) Possession Within 1000 Feet of School committed

in January 2004; (ii) Possession with Intent to Deliver committed in March 1999;

(iii) Robbery in the First Degree committed in February 1990; (iv) Assault in the

Second Degree and Possession of a Deadly Weapon During the Commission of a

Felony committed in March 1989; and (v) Robbery in the Second Degree committed

in March 1985.

         (3)    The Superior Court granted the State’s motion to declare Clark a

habitual offender under § 4214(a). Clark was sentenced as follows: (i) for Robbery

in the Second Degree, as a habitual offender under 11 Del. C. 4214(a), fifteen years

of Level V incarceration with credit for 148 days previously served; and (ii) for

Criminal Impersonation, one year of Level V incarceration, suspended for one year

of Level III probation. On direct appeal, this Court affirmed the Superior Court’s

judgment.3




3
    Clark v. State, 2009 WL 4688938 (Del. Dec. 9, 2009).
                                                2
          (4)    On March 23, 2017, Clark asked the Superior Court for permission to

proceed pro se with a request to modify his habitual offender sentence under 11 Del.

C. § 4214(f). Under Superior Court Special Rule of Procedure 2017-1, which was

enacted by the Superior Court as directed by the General Assembly in 11 Del. C.

§ 4214(f), a request for certificate of eligibility under § 4214(f) may only be filed by

the petitioner’s attorney of record or the Office of Defense Services.4 The Superior

Court will not consider a pro se request under 4214(f) unless the petitioner is granted

permission to proceed pro se.5 The Superior Court denied Clark’s March 23, 2017

request without prejudice and forwarded Clark’s filing to his counsel at the time of

sentencing.

          (5)    The Office of Defense Services subsequently informed Clark he was

not eligible for relief under § 4214(f). On April 26, 2017, Clark filed a motion for

appointment of conflict counsel to represent him in his request for sentence

modification under § 4214(f). The Superior Court found Clark was not eligible for

relief under § 4214(f) and denied his motion to appoint conflict counsel. The

Superior Court did not grant Clark permission to proceed pro se. This appeal

followed.




4
    Del. Super. Ct. Spec. R. 2017-1(c)(2).
5
    Id.
                                             3
       (6)    On appeal, Clark argues that the Superior Court erred in finding he was

not eligible for relief under § 4214(f) and in denying his motion for appointment of

conflict counsel to file a certificate of eligibility under Superior Court Special Rule

of Procedure 2017-1(c)(2). Clark contends he was eligible for relief under § 4214(f)

and appointment of counsel because: (i) he was sentenced before July 19, 2016 for

a violent felony under § 4214(a); (ii) the sentence was not subject to suspension and

constituted a minimum mandatory sentence because the terms minimum, mandatory,

minimum mandatory, and mandatory minimum are synonymous under § 234; and

(iii) he has served the required minimum sentence. The State argues Clark was not

eligible for relief under § 4214(f) because the Superior Court exercised its discretion

to sentence Clark to more than the statutory maximum for Robbery in the Second

Degree and he was not entitled to appointment of counsel.

       (7)    We review questions of statutory interpretation de novo.6 “The goal of

statutory construction is to determine and give effect to legislative intent.” 7 If the

statute is determined to be unambiguous, “there is no need for judicial interpretation,

and the plain meaning of the statutory language controls.”8 “A statute is ambiguous

‘if it is reasonably susceptible of different constructions or interpretations’ or ‘if a

literal reading of the statute would lead to an unreasonable or absurd result not


6
  Smith v. Guest, 16 A.3d 920, 935 (Del. 2011).
7
  Eliason v. Englehart, 733 A.2d 944, 946 (Del. 1999).
8
  Id.
                                               4
contemplated by the legislature.’”9 When a statute is ambiguous, a court may refer

to the legislative history to interpret the statute.10

       (8)    Effective July 19, 2016, the relevant provisions of § 4214(f) provided:

       Notwithstanding any statute, court rule or regulation to the contrary,
       beginning January 1, 2017, any person sentenced as an habitual
       criminal prior to July 19, 2016, shall be eligible to petition the Superior
       Court for sentence modification after the person has served a sentence
       of incarceration equal to any applicable mandatory sentence otherwise
       required by this section or the statutes describing said offense or
       offenses, whichever is greater. Absent extraordinary circumstances,
       the petitioner may only file 1 application for sentence modification
       under this section. A Superior Court Judge upon consideration of a
       petition filed pursuant to this subsection may modify, reduce or suspend
       such petitioner’s sentence, excepting any minimum or mandatory
       sentence required by this section or the statutes describing said offense
       or offenses. If a Superior Court Judge modifies such petitioner’s
       sentence, the Judge may impose a suspended sentence that includes a
       probationary term. Nothing in this section, however, shall require the
       Court to grant such a petitioner a sentence modification pursuant to this
       section. For the purposes of this subsection, the “applicable mandatory
       sentence” shall be calculated by reference to the penalties prescribed
       for the relevant offense or offenses by this Code as of July 19, 2016,
       unless said offense has been repealed, in which case the penalties
       prescribed by this Code at the time of the act repealing said offense
       shall be controlling.

       (9)    On April 13, 2017, these provisions were amended as reflected in bold

below:

       Notwithstanding any statute, court rule or regulation to the contrary,
       beginning January 1, 2017, any person sentenced as an habitual
       criminal to a minimum sentence of not less than the statutory

9
  LeVan v. Independence Mall, Inc., 940 A.2d 929, 933 (Del. 2007) (quoting Newtowne Vill. Serv.
Corp. v. Newtowne Rd. Dev. Co., 772 A.2d 172, 175 (Del. 2001)).
10
   Arnold v. Soc’y for Sav. Bancorp, Inc., 650 A.2d 1270, 1287 (Del. 1994).
                                              5
          maximum penalty for a violent felony pursuant to 4214(a) of this
          title, or a life sentence pursuant to 4214(b) of this title prior to July
          19, 2016, shall be eligible to petition the Superior Court for sentence
          modification after the person has served a sentence of incarceration
          equal to any applicable mandatory sentence otherwise required by this
          section or the statutes describing said offense or offenses, whichever is
          greater. Absent extraordinary circumstances, the petitioner may only
          file 1 application for sentence modification under this section. A
          Superior Court Judge upon consideration of a petition filed pursuant to
          this subsection may modify, reduce or suspend such petitioner's
          sentence, excepting any minimum or mandatory sentence required by
          this section or the statutes describing said offense or offenses. If a
          Superior Court Judge modifies such petitioner’s sentence, the Judge
          may impose a suspended sentence that includes a probationary term.
          Nothing in this section, however, shall require the Court to grant such
          a petitioner a sentence modification pursuant to this section. For the
          purposes of this subsection, the “applicable mandatory sentence” shall
          be calculated by reference to the penalties prescribed for the relevant
          offense or offenses by this Code as of July 19, 2016, unless said offense
          has been repealed, in which case the penalties prescribed by this Code
          at the time of the act repealing said offense shall be controlling.

          (10) When Clark was sentenced for Robbery in the Second Degree as a

habitual offender, § 4214(a) provided a habitual offender could receive a sentence

of up to life imprisonment and would “receive a minimum sentence which shall not

be less than the statutory maximum penalty provided elsewhere in this title for the

4th or subsequent felony which forms the basis of the State’s petition to have the

person declared to be an habitual criminal except that this minimum provision shall

apply only when the 4th or subsequent felony is a Title 11 violent felony, as defined

in § 4201(c) of this title.”11 The statutory maximum penalty for Robbery in the


11
     11 Del. C.§ 4214(a) (2008).
                                             6
Second Degree, the violent felony12 forming the basis of the State’s petition to

declare Clark an habitual offender, was five years of Level V incarceration.13 Clark

therefore faced a sentence between five years of Level V incarceration and life

imprisonment. The sentencing judge exercised his discretion to sentence Clark to

fifteen years of Level V incarceration, which exceeded the five-year maximum

statutory penalty for Robbery in the Second Degree under § 4214(a). Because the

sentencing judge exercised his discretion under § 4214(a) to sentence Clark to fifteen

years of Level V incarceration instead of five years of Level V incarceration, Clark

did not receive “a minimum sentence of not less than the statutory maximum penalty

for a violent felony.”14

       (11) Even if we accepted Clark’s interpretation of “a minimum sentence of

not less than the statutory maximum penalty for a violent felony” to include his

fifteen-year sentence as reasonable and deemed § 4214(f) ambiguous, the legislative

history does not support this interpretation.          The General Assembly amended

§ 4214(f) in 2017 to clarify that the 2016 amendments were intended “to focus upon

the minimum mandatory sentences imposed by the habitual offender statute, as

opposed to those sentences where sentencing judges have complete discretion with



12
   11 Del. C.§ 4201(c) (2008) (classifying Robbery in the Second Degree as a violent felony).
13
   11 Del. C. § 831 (2008) (defining Robbery in the Second Degree as a Class E felony); 11 Del.
C. 4205(b)(5) (2008) (providing punishment for Class E felony is up to five years of Level V
incarceration).
14
   11 Del. C. § 4214(f) (2017).
                                              7
respect to sentencing.”15 The Superior Court exercised discretion in sentencing

Clark to fifteen years of Level V incarceration for Robbery in the Second Degree,

instead of the five-year minimum mandatory under § 4214. The Superior Court did

not err in holding Clark was not eligible for relief under 11 Del. C. § 4214(f). In

light of this holding, the Superior Court also did not err in denying Clark’s motion

for appointment of conflict counsel to file a certificate of eligibility under § 4214(f).

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

Court is AFFIRMED.

                                               BY THE COURT:
                                               /s/ Leo E. Strine, Jr.
                                               Chief Justice




15
     81 Del. Laws ch. 6 (2017).

                                           8
