IN TI-]E SUPREME COURT OF THE STATE OF DELAWARE

OSCAR MARTINEZ, §
§ No. 1 82, 201 8
Petitioner Below, §
Appellant, § Court Below: Superior Court of the
§ State of Delaware
v. §
§ C.A. No. N18M-02-0318
DANA METZGER, §
§ Cr. ID No. 0905009708 (N)
Respondent Below, §
Appellee. §

Submitted: June 6, 2018
Decided: August 7, 2018

Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices
O R D E R

(1) In 2010, the appellant, Oscar Martinez, pleaded guilty to second-degree
robbery. In accordance With the parties’ plea agreement, Martinez Was declared a
habitual criminal and Was sentenced to ten years of Level V incarceration under
subsection (a) of 11 Del. C. § 4214, the State’s habitual criminal sentencing statute.

(2) In 2016, the General Assembly passed legislation, effective July 19,
2016, Which made significant changes to § 4214, The statute, as rewritten,
eliminated mandatory life sentences for habitual criminals, narrowed the list of
offenses eligible for habitual criminal sentencing, and made other changes to the
mandatory sentences associated With a habitual criminal designation The new

statute also included a remedial provision_§ 4214(f)_Which provided habitual

criminals, sentenced before July 19, 2016, a one-time opportunity to petition for a
modification of sentence.l In 2017, When questions arose regarding the intended
reach of § 4214(f), the General Assembly amended the statute to clarify that the
retroactive relief available under § 4214(f) Was intended to affect only habitual
criminal sentences imposing the minimum-mandatory required under the statute, not
discretionary sentences that exceeded the minimum-mandatory2

(3) Over the past eighteen months, Martinez has tried, repeatedly, to
convince the Superior Court that he is eligible to seek a sentence modification under
§ 4214(f). TWo such attempts-a petition for a Writ of mandamus and a motion for
sentence revieW_Were denied by the Superior Court in an order issued on May 15,
2017. A third attempt_a petition for a Writ of habeas corpus_Was dismissed by
the Superior Court in an order dated July 19, 2017. The Superior Court denied
Martinez’ various requests to file a petition under § 4214(f) because, among other
reasons, his ten-year habitual criminal sentence for second-degree robbery exceeded
the five-year minimum-mandatory sentence required for that offense under the
version of § 4214(a) in effect in 2010 When Martinez pleaded guilty, and thus his

sentence, under the amended statute, is considered discretionary. Martinez filed

 

1 80 Del. Laws ch. 321 (2016).
2 81 Del. Laws ch. 6 (2017).

appeals from the May 15 and July 19 orders, but both appeals were dismissed as
untimely filed.3

(4) This appeal is from the Superior Court’s March 13, 2018 denial of a
motion to certify questions of law and a petition for a writ of habeas corpus,
Martinez’ latest attempts to obtain a sentence modification under § 4214(f). The
March 13 decision also denied Martinez’ fifth motion seeking a modification of
sentence under Superior Court Criminal Rule 35(b). The State has filed a motion to
affirm the Superior Court’s judgment

(5) Having carefully considered the parties’ positions on appeal, we
conclude that the Superior Court’s judgment should be affirmed on the basis of, and
for the reasons stated in, the court’s well-reasoned decision dated March 13, 2018.4
The Superior Court did not err in concluding that Martinez’ motion under Rule 35(b)
was procedurally barred as repetitive, that Martinez had not met the requirements to
request a certification of questions of law, and that he was not entitled to habeas
corpus relief. To the extent Martinez used this appeal to challenge the court’s orders

of May 15 and July 19, 2017, his claims are outside the scope of the appeal.5

 

3 Martz'nez v. State, 2017 WL 2953372 (Del. July 10, 2017); Martinez v. State, 2017 WL 4080483
(Del. Sept. 14, 2017).

4 See State v. Martinez, Cr. ID No. 0905009708 (N) (Del. Super. Ct. Mar. 13, 2018) (copy
attached).

5 Moreover, we note that the substance of his claims was largely addressed and found to be without
merit in our decision in Clark v. State, 2018 WL 1956298 (Del. April 24, 2018).

3

Martinez may not use this appeal to resurrect claims of error that could have been,
but were not, raised in a timely appeal.6
NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is
GRANTED. The judgment of the Superior Court is AFFIRl\/IED.
BY TI-[E COURT:

/S/ Garv F. T raynor
Justice

 

6 Chapman v. State, 2015 WL 357955 (Del. Jan 26. 2015).
4

EFiled: Apr 09 2018 03:52P
Fi|ing lD 61894964
Case Number 182,2018

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

 

OSCAR MARTINEZ, )
Petitioner, )
v. ) C.A. No. N 18M-02-318 PRW
)
DANA METZGER, Warden, )
Respondent. )
) w f
) § §
STATE OF DELAWARE, ) a _L_ E_~, §
) :~;~;-- 10 ~
v. ) ID No. 0905009708 *""
) " U ,-;
()SCAR l`\/IARTINEZ, ) -..~ \'j
Defendant. ) \'\} m

Submitted: February 26, 2018
Decided: March 13, 2018

ORDER DENYING MARTINEZ’S MOTION QNDER RULE 35a
MOTION TO CERTIFY QUESTION§ OF LAW, AND

PETITI N FOR A WRIT F HABEAS CORPUS
This 13"‘ day of March, 2018, upon consideration of Defendant and
Petitioner Oscar Martinez’s Motion Under Superior Court Criminal Rule 35
(D.I. 73)', Motion To Certify Questions Of Law (D.l. 71), and Petition for
Writ of Habeas Corpus (D.I. 75) , and the record in this case, the Court finds

the following:

 

' All docket references herein are to those entries made in Criminal Case
No. 0905009708 as all the pending motions and petitions have been docketed in that case.

(l) On September 14, 2009, Oscar Maitinez, initially indicted on the
charge of Robbery in the First Degree,2 pleaded guilty to the lesser included
offense of Robbery in the Second Degree.3 He did so in exchange for the
State’s withholding of an insurmountable habitual criminal sentencing
petition4 and joined with the State in a favorable sentencing recommendation
(ten years of imprisonment under then-extant 11 Del. C. § 4214(3)).5 His
sentencing occurred a few months later, on January 15, 2010, after a pre-
sentence investigative report was prepared and the State had filed a habitual
criminal petition6 Martinez was sentenced to that which he and the State had

agreed upon: ten years at Level V to be served under the provisions of the

 

2 Indictment, State v. Oscar Marlinez, ID No. 0905009708 (Del. Super. Ct. Aug. 3,
2009) (D.I. 5).

3 Plea Agreement and TIS Guilty Plea Form, State v. Oscar Martinez, ID No.
0905009708 (Del. Super. Ct. Sept. 14, 2009) (D.I. 10).

4 Plea Agreement, at 1 (outlining Martinez’s prior felony convictions and noting that
Martinez was subject to a mandatory natural life sentence under then-extant ll Del. C.
§ 4214(b)).

5 ld. (“State and Def`endant agree to recommend: The State and defense agree to 10
years Level 5. The State will file an habitual offender petition pursuant to ll Del. C.
4214(a).”).

6 DEL. CODE ANN. tit. ll, § 4214(a) (2008) (providing that a person who had been
thrice previously convicted of a felony and was thereafter convicted of another felony could
be declared a habitual criminal; the Court could then, in its discretion, impose a sentence
of up to life imprisonment for that or any subsequent felony, but any person sentenced
under then-existing § 4214(a) had to receive a minimum sentence of not less than the
statutory maximum penalty otherwise provided for the fourth or subsequent Title l 1 violent
felony that formed the basis of the State’s habitual criminal petition).

_2_

then-extant Habitual Criminal Act.7 As required by law, he also received a
six-month term of probation to follow his imprisonment8 Martinez’s
sentencing order notes that his habitual criminal sentence was effective on
May 13, 2009.9 Martinez is now incarcerated at the James T. Vaughn
Correctional Center serving that sentence.

Martinez’s Rule 35 Motion (D.I. 73

(2) Martinez has filed a motion asking the Court to correct, reduce,
or modify his sentence

(3) His request to reduce or modify is governed by this Court’s
Criminal Rule 35(b).10 When considering such an application under Rule
35(b), the Court must address any applicable procedural bars before turning

to its merits.ll

 

7 Sentencing Grder, State v. Oscar Martinez, ID No. 0905009708 (Del. Super. Ct.
Jan. 15, 2010) (D.I. 17).

8 DEL. CODE ANN. tit. 11, § 4204(1) (2008) (“Except when the court imposes a life
sentence or sentence of death, whenever a court imposes a period of incarceration at Level
V custody for l or more offenses that totals 1 year or more, then that court must include as
part of its sentence a period of custodial supervision at either Level IV, III or II for a period
of not less than 6 months to facilitate the transition of the individual back into society."),

9 Sentencing Order, at 1.

'° Jones v. Staie, 2003 WL 21210348, at *l (Del. May 22, 2003) ("There is no
separate procedure, other than that which is provided under Superior Court Criminal Rule
35, to reduce or modify a sentence.”).

" S/ale v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015).

_3_'

(4) Martinez has previously filed numerous unsuccessful
applications to reduce or modify his your sentencel2 As our Supreme Court
and this Court have consistently held, Rule 35(b) prohibits consideration of
repetitive requests for sentence reduction or modification.'3 There is no
exception to the repetitive motion bar.14 And so, the Court must DENY
Martinez’s request to reduce or modify his sentence under Rule 35(b).

(5) When suggesting he is due sentence “correction,” Martinez cites
Criminal Rule 35(a). He says he is due Rule 35(a) relief “because of the
incompeten[ce] and ineffectiveness of [his trial/plea] attorney” in not arguing
that Martinez had “used drugs and physically commit[ted] the crime of
Robbery but [] did not have the mental capacity to knowingly do[] [his]

crime.”15

 

'2 See, e.g., D.I. 18 (first motion to reduce or modify sentence); D.I. 19 (order denying

first motion); D.I. 29 (second motion to reduce or modify sentence); D.I. 30 (order denying
second motion)', D.I. 35 (third motion to reduce or modify sentencc); D.I. 37 (order denying
third motion); D.I. 42 (fourth motion to reduce or modify sentence); D.I. 44 (order denying
fourth motion); D.I. 56 & 58 (fifth motion to reduce or modify sentence); D.I. 44 (order
denying fifth motion).

13 State v. Culp, 152 A.3d 141, 145 (Del. 2016); Redden. 111 A.3d at 608-09.
14 Czllp, 152 A.3d at 144; Reda'en, 111 A.3d 608-09.

'5 Def. Rule 35 Mot., at 3.

(6) Criminal Rule 35(a1 permits this Court to correct an illegal
sentence “at any time.”'6 Relief under Rule 35(a) is available When, inter alia,
the sentence imposed: exceeds the statutorily-authorized limits; omits a term
required to be imposed by statute; is uncertain as to its substance, or is a

7

sentence that the judgment of conviction did not authorize.‘ Martinez’s

8 As such, there is no

claims and sentence meet none of those criteria.l
illegality to his sentence to be corrected and the Court must DENY Martinez’s
request under Rule 35 (a).

Martinez’s Motion to Certifv Ouestions of Law (D.I. 71 )

(7) Martinez has also asked the Court to certify questions of law to
the Delaware Supreme Court on the constitutionality and application of
recently-enacted 11 Del. C. § 4214(1").l9 In sum, he says the statute

“discriminates towards [a] certain class of habitual offenders.” 20

 

16 Super. Ct. Crim. R. 35(a) (“Correction of sentence -- The court may correct an

illegal sentence at any time . . .”).
17 Brz'ttingham v. State, 705 A.2d 577, 578 (Del. 1998).

'8 Glenn v. State, 2003 WL 21714083 (Del. July 21, 2003) (Claim for ineffective
assistance of counsel is not proper subject for motion for correction of sentence under
Criminal Rule 35(a)).

‘9 DEL. CODE ANN. tit. 11, § 4214(f) (2017) (providing that certain habitual criminal
offenders are eligible to petition the Superior Court for sentence modification to conform

his or her sentence to the new provisions of the Habitual Criminal Act).

20 Def. Mot. to Certify, at 1.

(8) The Superior Court may, in rare instances, certify questions of
law to the Delaware Supreme Court in accordance with Article IV,
Section 11(8) of the Delaware Constitution and Delaware Supreme Court
Rule 41.

(9) There are certain requirements for such a request to be made by
this Court.z' First, the Court must certify that “there exist important and
urgent reasons for an immediate determination by th[e Supreme] Court of the
questions certif`ied.”22 That the Court cannot do. Even if the Court could, “[a]
certification will not be accepted if facts material to the issue certified are in
dispute.”23 And here there are disputed material facts. In turn, the Court must
DENY Martinez’s request to certify questions of law to the Delaware
Supreme Court.

Martinez’s Petition for a Writ of Habeas Corpus (D.I. 75)

(10) Martinez has also filed the instant petition for a Writ of habeas
corpus in this Court. Martinez appears to contend that this Court should grant

his petition for a Writ of habeas corpus because he has continuously and

 

2' Del. Supr. Ct. R. 41.
12 Dei. supr. cr. R. 41(b).

23 !d

unsuccessfully argued that he is due relief under 1 1 Del. C. § 4214(f).24 This
is no ground for habeas corpus relief `

(11) In Delaware, the writ of habeas corpus provides relief on a very
limited basis.25 Pursuant to § 6902(1) of Title 10, a writ of habeas corpus may
not be issued to any person “committed or detained on a charge of treason or
felony, the species whereof is plainly and fully set forth in the commitment.”
Consequently, no prisoner whose commitment is regular on its face can obtain
release through a state habeas corpus petition26 The record in this case
reflects that, after a guilty plea, Martinez Was sentenced to serve ten years of
Level V incarceration followed by probation To date, Martinez has served
less than nine years of that sentence. Accordingly, as there is no evidence that
this Court lacked jurisdiction to sentence Martinez or that his commitment is

irregular on its face, he is not entitled to habeas corpus relief.27 The Court

must, therefore, DENY Martinez’s Petition for a Writ of Habeas Corpus.

 

24 Pet. at 1111 3-4, 6-10.
25 Hall v. Carr. 692 A.2d 888, 891 (Del. 1997).
26 Jones v. Anderson, 183 A.2d 177, 178 (Del. 1962).

27 See DEL. CODE ANN. tit 10, § 6902(1) (2014);1,-vm v_ Smre_ 2007 WL 1509625, at
*1 (Del. May 24, 2007) (petitioner not entitled to a writ of habeas corpus where there was
no evidence that this Court lacked jurisdiction to sentence him or that the commitment was
irregular on its face); Cor)'ea v. State, 2007 WL 773396, at *1 (Del. Mar. 15. 2007)
(affirrning this Court’s decision to deny a state habeas petition where petitioner’s
sentencing order was regular on its face).

_7_

SO ORDERED this 13th day of March 2018.

ij

 

Paul R. Wallace, .]udge

Original to Prothonotary

cc: Joseph S. Grubb, Deputy Attorney General
Jason W. Staib, Deputy Attorney General
Oscar Martinez, pro se

