           IN THE SUPREME COURT OF THE STATE OF DELAWARE

FREDERICK S. DeJOHN,                    §
                                        §     No. 605, 2016
      Defendant Below,                  §
      Appellant,                        §     Court Below—Superior Court
                                        §     of the State of Delaware
      v.                                §
                                        §     Cr. ID No. 0107018127
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                          Submitted: March 28, 2017
                          Decided:   May 10, 2017


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

                                  ORDER

      This 10th day of May 2017, upon consideration of the appellant’s opening

brief, the State’s motion to affirm, the appellant’s motion for leave to respond to the

motion to affirm, and the Superior Court record, it appears to the Court that:

      (1)    In 2001, the appellant, Frederick S. DeJohn, was charged with twenty

counts of child pornography. On June 24, 2002, DeJohn pled guilty to two counts

of unlawfully dealing in child pornography.

      (2)    Under Delaware’s sex offender registration statute, a person convicted

of certain sexual offenses, including unlawfully dealing in child pornography, is

subject to court-ordered registration as a sexual offender upon the person’s release
from a Level V or Level IV facility.1 There are three risk assessment tiers, each of

which has a particular set of registration requirements.2 In this case, as part of the

parties’ plea agreement, DeJohn agreed to be designated as a Tier III sex offender.3

In exchange for DeJohn’s guilty plea, the State agreed to dismiss the other counts in

the indictment.

       (3)     For his convictions on two counts of unlawfully dealing in child

pornography, DeJohn was sentenced, on September 18, 2002, to a total of 15 years

of Level V incarceration suspended after 6 years (later modified to 4½ years) for 1

year at Level IV supervision and two consecutive 4-year terms of probation.

Consistent with the parties’ plea agreement, the sentence order required that DeJohn

register as a Tier III sex offender.

       (4)     The record reflects that DeJohn was found guilty of violating probation

in 2010 and 2011. On the second violation of probation, DeJohn was resentenced,

on July 18, 2013, to a total of 7½ years of unsuspended Level V incarceration

followed by 1 year of probation.

       (5)     On June 2, 2016, DeJohn filed a motion for correction of sentence under

Superior Court Criminal Rule 35(a). DeJohn claimed that his designation as a Tier




1
  See 11 Del. C. § 4120 (Supp. 2017) (governing registration of sex offenders).
2
  See 11 Del. C. § 4121(d), (e) (describing risk assessment tiers).
3
  Id. at (e)(1)a (providing that a person designated to Risk Assessment Tier III shall comply with
the registration provisions for life).
                                                2
III sex offender was illegal because, under the sex offender registration statute,

unlawfully dealing in child pornography is listed as a Tier II offense.

       (6)     On August 24, 2016, DeJohn submitted a “supplement” to his motion

for correction of sentence. In the supplement, DeJohn asked the Superior Court to

award him good time credits and to issue an amended sentence order stating that the

sentence was due to expire in September 2017. After soliciting the State’s response

to DeJohn’s submissions, the Superior Court denied the motion as supplemented.

This appeal followed.

       (7)     On appeal, DeJohn has filed a motion to respond to the State’s motion

to affirm. Under Supreme Court Rule 25(a), a response to a motion to affirm is not

permitted unless a response is requested by the Court.4 The Court has not requested

a response in this case. The motion to respond will be denied.

       (8)     In his opening brief on appeal, DeJohn continues to challenge his

designation as a Tier III sex offender, and he contends that he finished serving the

sentence in September 2017. To the extent DeJohn raised other claims in his motion

for correction of sentence and supplement, he has waived any right to review of those

claims on appeal by failing to argue them in his opening brief.5




4
  Del. Supr. Ct. R. 25(a) (“There shall be no briefing, argument or response to the motion unless
requested by the Court.”).
5
  Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).

                                                3
       (9)    DeJohn’s challenge to his sex offender designation is unavailing.

DeJohn’s agreed-upon Tier III designation was made a part of his knowing and

voluntary guilty plea. As such the designation is binding upon him and he has

waived any right to argue against it.6

       (10) DeJohn’s contention that he finished serving the sentence in September

2017 is not supported by the record. As previously noted, the record reflects that

DeJohn was resentenced, on July 18, 2013, to 7½ years of unsuspended Level V

incarceration followed by one year of probation.

       NOW, THEREFORE, IT IS ORDERED that the motion to respond to the

motion to affirm is DENIED. The motion to affirm is GRANTED. The judgment

of the Superior Court is AFFIRMED.

                                          BY THE COURT:

                                          /s/ Collins J. Seitz, Jr.
                                                 Justice




6
 See Crouch v. State, 2012 WL 2389325 (Del. June 25, 2012) (citing Downer v. State, 543 A.2d
309 (Del. 1988)).
                                             4
