   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                  IN AND FOR NEW CASTLE COUNTY

                                       )
STATE OF DELAWARE                      )
                                       )      I.D. No. 9903009487
      v.                               )
                                       )
BRIGADIER RIDLEY                       )
                                       )
                    Defendant          )


                          Submitted: July 17, 2014
                        Decided: September 19, 2014

           On Defendant’s Motion for Relief from “Illegal Sentence”
                                DENIED.


                                  ORDER
Christina M. Showalter, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.

Natalie S. Woloshin, Esquire, Woloshin, Lynch, Natalie, & Gagne, P.A.,
Wilmington, Delaware, Attorney for the Defendant

COOCH, R.J.

      This 19th day of September, 2014, upon consideration of Defendant’s
“Motion for Postconviction Relief” (so captioned by him when pro se), it
appears to the Court that:

      1.      Defendant Brigadier Ridley pled guilty to Rape Second Degree
              and was sentenced on January 7, 2000 to twenty years at Level
              V, suspended after ten years for ten years at Level IV,
              suspended after six months for nine and a half years at Level
              III, suspended after one year for the remaining eight and a half
                  years at Level II. 1 Defendant has served the Level V portion of
                  that sentence.

         2.       Defendant filed on February 4, 2014 a pro se “Motion for
                  Postconviction Relief” attacking his original sentence.2 Natalie
                  Woloshin, Esquire was appointed as counsel on February 16. 3

         3.       Defendant has been found in violation of his probation several
                  times since completing the Level V portion of his original
                  sentence. Most recently, on March 12, 2014 Defendant was
                  found in violation of probation and was sentenced to seven
                  years and eight months at Level V, suspended after eight
                  months for six months at Level IV, followed by one year at
                  Level III. 4 Defendant is currently serving that sentence.

         4.       Defendant filed a Motion for Modification or Correction of
                  Sentence pursuant to Superior Court Criminal Rule 35 on
                  March 24 that was denied for “all the reasons stated at the time
                  of sentencing” by another Judge of this Court on April 29.5

         5.       The Motion currently under consideration by this Court is
                  Defendant’s “Motion for Postconviction Relief” filed February
                  4, 2014 made pursuant to Superior Court Criminal Rule 61.
                  Defendant’s sole claim however, in this motion, is that his
                  original sentence of January 7, 2000 constituted an “Illegal
                  Sentence.” In essence, Defendant argues that the addition of
                  probation following the Level V portion of his constitutes an
                  illegal sentence. 6

         6.       A claim of illegal sentence cannot be challenged under Rule 61
                  and instead must be challenged under Rule 35(a). 7 This Court



1
  Docket #14 (Jan. 7, 2000).
2
  Docket #54 (Feb. 4, 2014). Notably, Defendant has not filed any motion attacking his most recent
sentence imposed by another judge of this Court on March 12, 2014.
3
  Docket #55 (Feb. 16, 2014).
4
  Docket #58 (Mar. 12, 2014).
5
  Docket #59 (Mar. 24, 2014); Docket #63 (Apr. 29, 2014). No action was taken on Defendant’s instant
Motion for Postconviction Relief on April 29.
6
  Def.’s Mot. for Postconviction Relief at 4.
7
  See Wilson v. State, 900 A.2d 102 (Del. 2006)(concluding that defendant’s “illegal sentence” claim is not
cognizable under Rule 61.”).

                                                     2
                  will treat Defendant’s Motion as a Rule 35 Motion for
                  Modification or Correction of Sentence.8

         7.       It is the position of Defendant’s appointed counsel as set forth
                  in her July 17 letter to the Court that Defendant’s Motion for
                  Postconviction Relief is, as this Court had earlier suggested,
                  more accurately described as a Motion for Correction or
                  Reduction of Sentence. 9 Defendant’s appointed counsel points
                  out that another judge of this Court has denied Defendant’s
                  previous Motion for Modification or Correction of Sentence of
                  March 24. 10” Defendant’s appointed counsel takes no position
                  on the merits of Defendant’s motion.

         8.       Defendant has failed to demonstrate that the sentence imposed
                  in this criminal action is an illegal sentence subject to
                  modification or correction under Rule 35. As a result, this
                  Court finds that the sentence imposed on January 7, 2000 was
                  appropriate for all the reasons stated on the record at that time.


Therefore, Defendant’s Motion for Relief from “Illegal Sentence” is
DENIED.

         IT IS SO ORDERED.

                                                                      ______________________
                                                                        Richard R. Cooch, R.J.

cc:      Prothonotary
         Investigative Services




8
  Super. Ct. Crim. R. 35(a) (providing that “an illegal sentence” may be corrected by the Court at any time).
9
  See Letter from Natalie Woloshin at 1, Docket #70 (Jul. 17, 2014). Defendant’s appointed counsel opines
that in the alternative, if the motion was properly captioned as a Motion of Postconviction Relief, it was
counsel’s position that a Rule 61 claim would be time barred pursuant to Superior Court Criminal Rule
61(i). See id. at 2.
10
   Id. Defendant’s appointed counsel further notes with regard to any motion made pursuant to Rule 35(a),
“no rule or statute requires the appointment of counsel.” Id.

                                                     3
