      IN THE SUPREME COURT OF THE STATE OF DELAWARE

 DANIEL D. JONES,                         §
                                          §   No. 48, 2016
          Defendant Below-                §
          Appellant,                      §
                                          §   Court Below—Superior Court
          v.                              §   of the State of Delaware
                                          §
 STATE OF DELAWARE,                       §   Cr. ID Nos. 1212012398,
                                          §   1212013888, 1212018608,
          Plaintiff Below-                §   1310006358 and 1310006438
          Appellee.                       §

                             Submitted: March 17, 2016
                              Decided: May 16, 2016

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                    ORDER

      This 16th day of May 2016, upon consideration of the appellant’s

opening brief and the State’s motion to affirm, it appears to the Court that:

      (1)       The appellant, Daniel Jones, filed this appeal from the Superior

Court’s denial of his motion for postconviction relief. The State has filed a

motion to affirm the judgment below on the ground that it is manifest on the

face of Jones’ opening brief that his appeal is without merit. We agree and

affirm.

          (2)   The record reflects that Jones pled guilty on December 31, 2013

to three counts of Burglary in the Second Degree, three counts of Burglary in

the Third Degree, and one count of Theft from a Senior. The State moved to
declare Jones to be a habitual offender under 11 Del. C. § 4214(a). After a

presentence investigation, the Superior Court declared Jones to be a habitual

offender as to two of his convictions for second degree burglary. Because

second degree burglary is defined as a “violent felony,” 1 the Superior Court

imposed the statutory maximum term of incarceration of eight years for each

of those convictions as required by Section 4214(a).2 In total, the Superior

Court sentenced Jones to thirty-five years at Level V incarceration, to be

suspended after serving nineteen years in prison for decreasing levels of

supervision. Jones did not appeal.

         (3)     On August 10, 2015, Jones filed his first motion for

postconviction relief under Superior Court Criminal Rule 61.               Although

Jones’ motion listed three grounds for relief, all three grounds challenged the

legality of his habitual offender sentence for second degree burglary. The gist

of Jones’ argument in the Superior Court was that the classification of second

degree burglary as a violent felony violated his constitutional right to due

process.       The Superior Court summarily dismissed Jones’ motion.             This

appeal followed.



1
    11 Del. C. § 4201(c) (2015).
2
  Id. § 4214(a) (providing that the minimum habitual offender sentence shall be the
statutory maximum if the felony forming the basis of the State’s motion to declare a
defendant to be a habitual offender is defined as a “violent felony” under § 4201(c)).


                                          2
       (4)    In his opening brief, Jones asserts the same argument that he

raised below; namely, that the classification of second degree burglary as a

violent felony violates due process.            The State has moved to affirm the

Superior Court’s judgment on several alternative grounds. First, the State

asserts that Jones’ motion was properly dismissed because his claim of an

illegal sentence is not cognizable under Rule 61, which provides a procedure

to challenge the legality of a conviction or a capital sentence.3 Second, the

State asserts that, even if Jones’ motion was properly filed under Rule 61, the

motion was procedurally barred as untimely under Rule 61(i)(1).4 Finally, the

State asserts that Jones’ claim of an illegal sentence fails on its merits.

       (5)    After careful consideration of the parties’ filings and the record

on appeal, we agree with the State’s position that Jones’ arguments

challenging the legality of his habitual offender sentence were not properly

raised in a Rule 61 motion. Rule 61 establishes the procedure for a convicted

defendant in the State’s custody “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

3
  Wilson v. State, 2006 WL 1291369, *2 (Del. May 9, 2006) (noting that Rule 61(a)(1)
allows a defendant to seek to “set aside the judgment of conviction or a sentence of death”
and holding that defendant’s sentencing claims were not cognizable under Rule 61).
4
 See Super. Ct. Crim. R. 61(i)(1) (2016) (providing that a motion for postconviction relief
may not be filed more than one year after the judgment of conviction is final or more than
one year after a retroactive right is first recognized).


                                            3
upon a criminal conviction or a capital sentence.”5 Jones was not sentenced

to death, and his Rule 61 motion did not challenge any criminal conviction.

His motion only challenged the legality of his habitual offender sentence.

Such a claim is properly considered under Superior Court Criminal Rule

35(a), not Rule 61.6

         (6)     Even if Rule 61 did apply, however, it is clear that Jones’ motion

was untimely under Rule 61(i)(1) and that he failed to overcome this

procedural bar under Rule 61(i)(5) by pleading a claim that the Superior

Court lacked jurisdiction or a claim that he was actually innocent or that a

new, retroactive rule of constitutional law rendered his convictions invalid.7

         (7)     Moreover, even if Jones’ claims had been properly raised in a

motion to correct his sentence under Rule 35(a), the request for relief had no

merit. Jones contends that, under Johnson v. United States,8 his enhanced

sentence as a habitual offender violated due process because second degree

burglary is not a violent felony. The United States Supreme Court held in

Johnson that the language defining a violent felony in 18 U.S.C. §

5
    Del. Super. Ct. Crim. R. 61(a)(1) (emphasis added).
6
    Priest v. State, 2015 WL 7424860, *1 (Del. Nov. 20, 2015).
7
 See Turnage v. State, 2015 WL 6746644 (Del. Nov. 4, 2015) (holding in part that the
defendant’s Rule 61 motion, which was filed after the rule was amended on June 4, 2014,
was untimely under Rule 61(i)(1) and the defendant failed to overcome the procedural bar
by pleading a claim under Rule 61(i)(5)).
8
    135 S.Ct. 2551 (2015).


                                              4
924(e)(2)(B)        of    the   federal    Armed       Career    Criminal   Act   was

unconstitutionally vague.9 Because the language at issue in Johnson does not

appear in Delaware’s habitual offender statute, 11 Del. C. § 4214, this Court

has held that the holding of Johnson does not apply under Delaware law.10

          NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                              BY THE COURT:

                                              /s/ Karen L. Valihura
                                                     Justice




9
    Id. at 2563.
10
     Anderson v. State, 2015 WL 9283845, at 2 (Del. Dec. 18, 2015).


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