IN THE SUPREME COURT OF THE STATE OF DELAWARE

KEVIN L. PRIEST, §
§
Defendant Below, § No. 475, 2015
Appellant, §
§ Court Below—Superior Court
V. § of the State of Delaware,
§ in and for New Castle County
STATE OF DELAWARE, § Cr. 1D Nos. 1204019391,
. § 1205020519
Plaintiff Below, §
Appellee. §
§

Submitted: September 21, 2015
Decided: November 20, 2015

Before STRINE, Chief Justice; HOLLAND, and VALIHURA, Justices.
MB

This 20th day of November, 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, Kevin L. Priest, 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 Priest’s opening brief that his appeal is without merit. We agree and afﬁrm.

(2) The record reﬂects that, in July 2012, Priest resolved two different
criminal cases by pleading guilty to Drug Dealing in Criminal ID No. 1204019391

and Drug Dealing in Criminal ID No. 1205020519. Priest was declared a habitual

offender under 11 Del. C. § 4214(a) and sentenced as a habitual offender on the Drug
Dealing conviction in Criminal ID No. 1204019391 to three years of Level V
incarceration with credit for time previously served. Priest was sentenced on the
Drug Dealing conviction in Criminal ID No. 1205020519 to six years of Level V
incarceration, suspended after two years for decreasing levels of supervision. Priest
did not ﬁle a direct appeal.

(3) Beginning in November 2013, Priest ﬁled several motions for
modiﬁcation or reduction of his sentence. The Superior Court denied all of those
motions.

(4) On December 23, 2014, the Ofﬁce of the Public Defender, on behalf of
Priest, ﬁled a motion for postconviction relief under Superior Court Criminal Rule
61 in Criminal ID No. 1205020519. The motion was based on misconduct at the
Ofﬁce of the Chief Medical Examiner (“OCME”). The public defender
supplemented the motion multiple times. The motion is currently pending in the
Superior Court.

(5) On March 27, 2015, the public defender, on behalf of Priest, ﬁled a
motion for postconviction relief under Rule 61 in Criminal ID No. 1204019391.
This motion was also based on misconduct at the OCME. The public defender

supplemented the motion multiple times. The motion is currently pending in the

Superior Court.

(6) On August 3, 2015, Priest ﬁled a pro se document titled Motion to
Amend in Criminal ID No. 1204019391 and Criminal ID No. 1205020519. Relying
on Johnson v. United States,1 Priest argued that his sentence as a habitual offender
was illegal. Priest’s motion also included an argument that the drugs in the
convictions underlying his habitual offender status should be re-tested in light of
events in the Jermaine Dollard case.

(7) In an order dated August 11, 2015, the Superior Court denied the
motion, ﬁnding that Priest acknowledged the range of sentences when he pled guilty,
the motions were ﬁled more than 90 days after imposition of sentence, the motions
were repetitive of previously denied motions, there were no extraordinary
circumstances supporting review of the motions, and the sentences were appropriate
for all the reasons stated at sentencing. This appeal followed.

(8) 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 In his opening brief, Priest argues that the Superior
Court erred in treating his motion as a motion for correction of sentence under Rule
35, instead of treating it as a motion to amend his motions for postconviction relief

under Rule 61. He is incorrect. Although the document was titled Motion to Amend,

1 135 S. Ct. 2551 (2015).

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

it did not contain any references to the Rule 61 motions that the public defender had
ﬁled and supplemented on Priest’s behalf. Most of the motion, including the ﬁrst
ﬁve pages, was devoted to Priest’s argument that his sentence as a habitual offender
was illegal under Johnson. Rule 35, not Rule 61, is the proper vehicle for
challenging a sentence.4 The Superior Court therefore did not err in treating the
motion like a motion for correction of sentence under Rule 35.

(9) The Superior Court also did not err in denying the motion, even though
the motion should have been considered under Rule 35(a),5 instead of Rule 35(b).6
A sentence is illegal if it exceeds statutory limits, violates double jeopardy, is
ambiguous with respect to the time and manner in which it is to be served, is
internally contradictory, omits a term required to be imposed by statute, is uncertain
as to the substance of the sentence, or is a sentence that the judgment of conviction
did not authorize.7 The Johnson case does not support Priest’s claim that his

sentence as a habitual offender was illegal. In Johnson, the United States Supreme

4 Compare Super. Ct. Crim. R. 35 (“Correction or reduction of sentence”), with Super. Ct. Crim.
R. 61(a) (“This rule governs the procedure on an application by a person in custody under a
sentence of this court seeking to set aside the judgment of conviction or a sentence of death on the
ground that the court lacked jurisdiction or on any other ground that is a sufﬁcient factual and legal
basis for a collateral attack upon a criminal conviction or a capital sentence”) (emphasis added).
5 Super. Ct. Crim R. 35 (a) (“The court may correct an illegal sentence at any time and may correct
a sentence imposed in an illegal manner within the time provided herein for the reduction of
sentence”).

6 Super. Ct. Crim R. 35(b) (providing that motion to correct a sentence imposed in an illegal
manner or a motion for reduction of sentence ﬁled more than ninety days after imposition of the
sentence can be considered only in extraordinary circumstances or if the Department of Correction
ﬁles an application under 11 Del. C. § 4217).

7 Brittz'ngham v. State, 705 A.2d 577, 578 (Del. 1998).

Court held that the imposition of an enhanced sentence under the residual clause of
the Armed Career Criminal Act violated the Due Process Clause.8 Priest was
sentenced as a habitual offender under 11 Del. C. § 4214(a), not the residual clause
of the Armed Career Criminal Act.

(10) As to Priest’s claims that he is entitled to an evidentiary hearing and re-
testing of the drugs seized in Criminal [D No. 1204019391 and Criminal ID No.
1205020519, the motions for postconviction relief ﬁled in those cases by the public
defender are currently pending in the Superior Court. Priest is represented by
counsel in those postconviction proceedings and has not been granted permission to
participate with his counsel in the defense. Under Rule 47, the Superior Court “will
not consider pro se applications by defendants who are represented by counsel unless
the defendant has been granted permission to participate with counsel in the

defense.”9

(11) As to Priest’s claim that the drugs in the convictions underlying his
habitual offender status must be re-tested, that claim must be raised in those cases

(assuming Priest has standing to challenge those convictions10 and can overcome the

8 Johnson, 135 S. Ct. at 2563.

9 Super. Ct. Crim. R. 47.

1° Super. Ct. Crim. R. 61(a) (“This rule governs the procedure on an application by a person in
custody under a sentence of this court seeking to set aside the judgment of conviction or a sentence
of death on the ground that the court lacked jurisdiction or on any other ground that is a sufﬁcient
factual and legal basis for a collateral attack upon a criminal conviction or a capital sentence”);

Short v. State, 2013 WL 3 807795, at *1 (Del. July 18, 2013) (holding that appellant lacked standing

procedural hurdles of Rule 61), not Criminal ID No. 1205019391 or Criminal ID
No. 1205020519. Accordingly, we afﬁrm the Superior Court’s denial of the motion
for correction of sentence on the alternative ground that it lacked merit under Rule
35(a .11

NOW, THEREFORE, IT IS ORDERED that motion to afﬁrm is GRANTED
and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Randy J. Holland
Justice

to seek postconviction relief because her sentence had expired and she was no longer “in custody”
under that sentence as required by Superior Court Criminal 61(a)(1)).
11 Unitrz'n, Inc. v. American Gen. Corp, 651 A.2d 1361, 1390 (Del. 1995) (noting that Delaware

Supreme Court may affirm judgment on basis of different rationale than rationale articulated by
trial court).

