IN THE SUPREME COURT OF THE STATE OF DELAWARE

GEORGE PARHAM, §
§ No. 45 6, 201 5
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware in and
v. § for New Castle County
§
STATE OF DELAWARE, § Cr. ID No. 1407016217
§
Plaintiff Below, §
Appellee. §

Submitted: September 1, 2015
Decided: November 16, 2015

Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.
O R D E R

This 16th day of November 2015, upon consideration of the appellant’s
opening brief and the appellee’s motion to afﬁrm under Supreme Court Rule 25(a),
it appears to the Court that:

(1) The appellant, George Parham, ﬁled this appeal from the Superior
Court’s denial of his motion for correction of illegal sentence. The State has ﬁled a
motion to afﬁrm the Superior Court judgment on the ground that it is manifest on
the face of Parham’s opening brief that the appeal is without merit. We agree and
afﬁrm.

(2) On September 2, 2014, Parham was indicted for Driving under the

Inﬂuence of Alcohol (“DUI”) in violation of title 21, section 4177(a) of the Delaware

Code.1 In conjunction with the indictment, the Attorney General ﬁled a “Notice of
DUI Felony Prosecution” stating that, upon Parham’s conviction of DUI, the State
would seek enhanced sentencing of Parham as a repeat offender under section
4177(d)(3) — (7).2 After a one-day jury trial on January 27, 2015, Parham was
convicted of DUI Fifth Offense and was sentenced under section 4177(d)(5) to ﬁve
years at Level V suspended after eighteen months for three months at Level IV
followed by decreasing levels of probation.3 Parham did not appeal the conviction
or sentence.

(3) On June 24, 2015, Parham ﬁled a motion for correction of illegal
sentence under Superior Court Criminal Rule 35(a), claiming that the Superior Court
relied upon “incorrect information” when determining that he was eligible for
sentencing as a ﬁve-time DUI offender. Parham claimed that he was only a three-
time offender, which carried a lesser sentence.4 Parham contended that although his

driving record included two previous convictions for Reckless Driving, alcohol

1 21 Del. C. §4177(a).

2 See 21 Del. C. § 4177(d)(3) — (7) (providing penalties for felony-level DUI third through seventh
offense).

3 See 21 Del. C. § 4177(d)(5) (“For a ﬁfth offense occurring any time after 4 prior offenses, be

guilty of a class E felony, be ﬁned not more than $10,000 and imprisoned not less than 3 years nor
more than 5 years”)

4 See 21 Del. C. § 4177£d)(3) (“For a third offense occurring at any time after 2 prior offenses, be

guilty of a class G felony, be ﬁned not more than $5,000 and be imprisoned not less than 1 year
nor more than 2 years”).

related, in 1997 and 1999, only his two previous convictions for DUI in 2001 and
2004 should have counted as previous convictions for sentencing purposes under
section 4177(d). By order dated July 29, 2015, the Superior Court denied the motion
for correction of illegal sentence as time—barred and as without merit.5 This appeal
followed.

(4) Although the issue is not raised on appeal, the Court notes that
Parham’s motion for correction of illegal sentence was properly denied as time-
barred. The Superior Court may correct an illegal sentence “at any time,” but a
sentence “imposed in an illegal manner” may be corrected only within ninety days
of sentencing, unless the court determines there are extraordinary circumstances.6
In this case, Parham did not claim that the sentence imposed was illegal for a ﬁve-
time offender, and he conceded that it was not. Rather, Parham claimed that the
Superior Court erroneously concluded, based on “incorrect information,” that he was
a ﬁve-time offender and sentenced him in an illegal manner accordingly. As a result,
Parham was required to ﬁle the motion for correction of illegal sentence within

ninety days of the date the sentence was imposed.7 When denying Parham’s motion

5 The Court notes that the Superior Court mistakenly construed the motion for correction of illegal
sentence as a motion for reduction or modiﬁcation of sentence.

6 Del. Super. Ct. Crim. R. 35(a), (b).

7 See Wilson v. State, 2006 WL 1291369, at * 3 (Del. May 9, 2006) (concluding that a Rule 35(a)
motion for correction of illegal sentence alleging that a sentence was based on disputed facts must
be ﬁled within ninety days of the imposition of sentence, absent extraordinary circumstances).

3

for correction of illegal sentence, the Superior Court found a lack of extraordinary
circumstances and properly concluded that the motion was time-barred.

(5) Without the necessary transcript, which was not ordered for the appeal
and is not otherwise included in the record, the Court is unable to review Parham’s
claim that the Superior Court was given incorrect information at sentencing. Parham
was required to order any transcript “relevant to the challenged ﬁnding or
conclusion” “to give this Court a fair and accurate account of the context in which
the claim of error occurred.”8 Parham’s failure to order the sentencing transcript
precludes appellate review of the claim.9

(6) For the reasons we have explained, Parham’s claim that he was
sentenced based on incorrect information is not properly before us. But, even if it
were, the claim that he was illegally sentenced is without merit. Reckless Driving,
alcohol related, is a violation of 21 Del. C. § 4175(b).10 A conviction under section
4175(b) constitutes a previous conviction for purposes of imposing sentence under

section 4177(d).11 Parham’s two convictions for Reckless Driving, alcohol related,

8 Del. Supr. Ct. R. 14(e).

9 Seramone-Isaacs v. Mells, 873 A.2d 301, 304 (Del. 2005) (citing T ricoche v. State, 525 A.2d
151, 154 (Del. 1987)).

10 21 Del. C. §4175(b).

11 See 21 Del. C. § 4177B(e)(1)a (deﬁning a “previous or prior conviction or offense” as “[a]

conviction or other adjudication of guilty or delinquency pursuant to § 4175(b) or § 4177 of this
title”).

in 1997 and 1999 and his two convictions for DUI in 2001 and 2004 qualiﬁed him

for sentencing as a ﬁve-time offender.

(7) Parham raises a claim on appeal that he did not raise in his motion for
correction of illegal sentence. According to Parham, the Superior Court did not
conduct a statutorily-required hearing to determine whether, and to what extent, he
was subject to sentencing as a repeat offender. Because Parham did not raise the

claim in his motion for correction of illegal sentence, we have reviewed the claim

for plain error.12

(8) The hearing Parham refers to is found in section 4177(11), which

provides:

A person who has been convicted of prior or previous
offenses of this section, as deﬁned in § 4177B(e) of this
title, need not be charged as a subsequent offender in the
complaint, information or indictment against the person in
order to render the person liable for the punishment
imposed by this section on a person with prior or previous
offenses under this section. However, if at any time after
conviction and before sentence, it shall appear to the
Attorney General or to the sentencing court that by reason
of such conviction and prior or previous convictions, a
person should be subjected to paragraph (d)(3), (d)(4),
(d)(S), (d)(6) or (d)(7) of this section, the Attorney General
shall ﬁle a motion to have the defendant sentenced
pursuant to those provisions. If it shall appear to the
satisfaction of the court at a hearing on the motion that the
defendant falls within paragraph (d)(3), (d)(4), (d)(S),

12 Del. Supr. Ct. R. 8. Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (providing that plain

error is error that is “so clearly prejudicial to substantial rights as to jeopardize the fairness and
integrity of the trial process”).

(d)(6) or (d)(7) of this section, the court shall enter an order
declaring the offense for which the defendant is being
sentenced to be a felony and shall impose a sentence
accordingly.13
(9) Under plain error review, the Court concludes that Parham has not
demonstrated that he was entitled to, or prejudiced by the lack of, a separate hearing
under section 4177(11) to determine whether, and to what extent, he was subject to
sentencing as a repeat offender. In addition to the Attorney General’s Notice of DUI
Felony Prosecution that was ﬁled in conjunction with the indictment, the record
reﬂects that Parham had ample notice that the State intended to seek a conviction of
and sentence for DUI Fifth Offense.
NOW, THEREFORE, IT IS ORDERED that the motion to afﬁrm is
GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Randy 1 Holland
Justice

13 21 Del. C. §4177(11).

