             IN THE SUPREME COURT OF THE STATE OF DELAWARE

JAMES E. KNOX,                           §
                                         §
        Defendant Below,                 §   No. 250, 2015
        Appellant,                       §
                                         §
        v.                               §   Court Below—Superior Court
                                         §   of the State of Delaware,
STATE OF DELAWARE,                       §   in and for Kent County
                                         §   Cr. ID No. 0008001802
        Plaintiff Below,                 §
        Appellee.                        §

                           Submitted: June 16, 2015
                            Decided: August 17, 2015

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

                                     ORDER

        This 17th day of August 2015, 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, James E. Knox, filed this appeal from a Superior Court

order denying 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 Knox’s opening brief that his appeal is without merit. We agree and affirm.

        (2)    The record reflects that, in February 2001, Knox pled guilty to

Unlawful Sexual Intercourse in the Second Degree. This conviction arose from

Knox’s sexual abuse of his minor stepdaughter. Knox was sentenced to twenty
years of Level V incarceration, suspended after ten years for decreasing levels of

supervision. Knox did not file an appeal from the Superior Court’s judgment. In

2003, this Court affirmed the Superior Court’s denial of Knox’s first motion for

postconviction relief. 1

         (3)    On October 29, 2010, the Superior Court found that Knox had

committed his first violation of probation (“VOP”). Knox was sentenced to ten

years of Level V incarceration, suspended after fifteen days for decreasing levels

of supervision. On April 1, 2013, an administrative warrant was filed for Knox’s

second VOP.         On April 12, 2013, the Superior Court found that Knox had

committed his second VOP. Knox was sentenced to fourteen years of Level V

incarceration, suspended immediately for one year of Level III probation.

         (4)    On April 25, 2014, the Superior Court found that Knox had

committed his third VOP.             Knox was sentenced to ten years of Level V

incarceration, suspended upon successful completion of the Family Problems

Program for one year of Level III probation. Knox did not appeal any of the

VOPs, but did file multiple motions for modification or correction of sentence.

         (5)    On April 20, 2015, Knox filed a motion for correction of sentence

containing eighteen grounds for correction of his April 25, 2014 VOP sentence.



1
    Knox v. State, 2003 WL 21456287 (Del. June 17, 2003).



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The Superior Court denied the motion on April 23, 2015. The Superior Court’s

April 23, 2015 order is on appeal in Knox v. State, No. 242, 2015.

         (6)     On May 4, 2015, Knox filed another motion for correction of

sentence. In this motion, Knox claimed that the April 12, 2013 VOP sentence must

be vacated due to errors in the April 12, 2013 VOP proceedings. Knox argued that

he was forced to represent himself without receiving a copy of the VOP report and,

despite his admission that he violated his probation, he was actually innocent of the

VOP. In an order dated May 5, 2015, the Superior Court denied the motion as

untimely and repetitive and found that the sentence was appropriate for the reasons

stated at sentencing. This appeal followed.

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

sentence for abuse of discretion.2 To the extent the claim involves a question of

law, we review the claim de novo.3                  Knox’s arguments on appeal may be

summarized as follows: (i) the Superior Court erred in finding his motion untimely

because there is no time limit for a motion to correct an illegal sentence under

Superior Court Criminal Rule 35(a); (ii) the fourteen years of Level V time

imposed in the April 12, 2013 sentence was illegal because it exceeded the ten

years of Level V time remaining on his sentence; (iii) he was innocent of the

second VOP; (iv) he was forced to represent himself without a copy of the VOP

2
    Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
3
    Id.


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report at the April 12, 2013 VOP hearing; and (v) his motion for correction of

sentence was not repetitive as it was the first motion he filed in connection with the

VOP sentence imposed on April 12, 2013.

       (8)    Under Superior Court Criminal Rule 35 (“Rule 35”), a defendant may

file a motion for correction of an illegal sentence or a motion for reduction of

sentence. A proceeding under Rule 35 presumes a valid conviction. 4 Rule 35 is

not a means for a defendant to attack the legality of his convictions or to raise

allegations of error in the proceedings before the imposition of sentence. 5 A

defendant may not use an appeal from the denial of a Rule 35 motion “to

collaterally attack the merits of his VOP conviction.” 6          Only one of Knox’s

claims—that the fourteen years of Level V time imposed on April 12, 2013 time

exceeded the ten years of Level V time previously suspended—challenges his VOP

sentence and is cognizable under Rule 35. We will therefore only consider that

claim. Knox’s other claims challenging the legality of the VOP finding or alleging

errors in the VOP proceedings are outside the scope of Rule 35 and will not be

considered.

       (9)    As to Knox’s claim regarding the legality of his second VOP

sentence, Knox did not raise this claim in the Superior Court and it will not be


4
  Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
5
  Id.
6
  Pipkin v. State, 2004 WL 2419087, at *1 (Del. Oct. 26, 2004).


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considered on appeal absent plain error. 7 There is no plain error here because

although the Superior Court made a mistake at one point in the proceedings, that

error did not prejudice Knox. Knox is correct that the Superior Court erred by

imposing a fourteen year Level V sentence on April 12, 2013, because that

sentence exceeded the ten years of Level V time previously suspended on his

sentence.8 But there is no harm to Knox for us to correct from this error because

the April 12, 2013 Level V sentence was immediately suspended for Level III

probation and, more generally, is no longer in effect. On April 25, 2014, Knox

was sentenced for his third VOP to ten years of Level V incarceration, suspended

upon successful completion of the Family Problems Program for one year of Level

III probation. Even though the April 25, 2014 sentence was a year later, the

Superior Court was within its discretion to impose ten years of Level V time

because, as mentioned, Knox served no Level V time under the erroneous April 12,

2013 sentence. Because the April 12, 2013 sentence is no longer in place, and

because it caused no prejudice to Knox, his challenge to the April 12, 2013

sentence provides no basis for remedial relief and is moot. Having carefully

reviewed the parties’ submissions and the record, we affirm on different grounds



7
 Supr. Ct. R. 8.
8
 Pavulak v. State, 880 A.2d 1044, 1046 (Del. 2005) (holding Superior Court erred in imposing
more Level V time for VOP than remained on defendant’s suspended Level V sentence).



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the Superior Court’s denial of Knox’s motion for correction of his second VOP

sentence.

      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




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