      IN THE SUPREME COURT OF THE STATE OF DELAWARE

 JOSE A. COLON,                          §
                                         §   No. 589, 2015
       Defendant Below-                  §
       Appellant,                        §
                                         §
       v.                                §   Court Below—Superior Court
                                         §   of the State of Delaware
 STATE OF DELAWARE,                      §   Cr. ID 0501004460
                                         §
       Plaintiff Below-                  §
       Appellee.                         §

                          Submitted: December 21, 2015
                          Decided:   February 8, 2016

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

                                   ORDER

      This 8th day of February 2016, upon consideration of the opening

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

      (1)     The appellant, Jose Colon, filed this appeal from the Superior

Court’s order denying his motion for correction of sentence. The State filed

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

the face of Colon’s opening brief that his appeal is without merit. We agree

and affirm.

       (2)    The record reflects that, following a bench trial in September

2005, the Superior Court found Colon guilty of Robbery in the First Degree

and sentenced him as a habitual offender to twenty-five years at Level V
incarceration.     This Court affirmed Colon’s conviction and sentence on

direct appeal. 1

       (3)    In September 2015, Colon filed a motion for correction of

illegal sentence, arguing that his prior conviction for Attempted Burglary

was not a qualifying predicate offense and could not be used in determining

his status as a habitual offender under 11 Del. C. § 4214(a). The Superior

Court denied Colon’s motion. This appeal followed.

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

correction of sentence under Rule 35(a) for abuse of discretion, although

questions of law are reviewed de novo. 2 Under Rule 35(a), 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 an unauthorized sentence.3

       (5)    In his opening brief on appeal, Colon points out that Section

4214(b) specifically states that any person who twice has been previously

convicted of “a felony or an attempt to commit a felony” 4 listed in that

subsection shall be sentenced to life as a habitual offender upon a third

1
  Colon v. State, 2006 WL 2714454, *1 (Del. Sept. 22, 2006).
2
  Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
3
  Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
4
  11 Del. C. § 4214(b) (2015).


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conviction. Section 4214(a), on the other hand, provides that “[a]ny person

who has been 3 times convicted of a felony, other than those which are

specifically mentioned in subsection (b)” 5 may be declared a habitual

offender upon conviction of a fourth felony. Colon argues that, because

Section 4214(a) does not specifically include an attempt to commit a felony

as a qualifying predicate offense, he legally did not qualify as a habitual

offender because one of his predicate offenses was Attempted Burglary.

       (6)    After careful consideration, we find no merit to Colon’s

argument. Under 11 Del. C. § 531, an attempt to commit a crime is a

criminal offense of the same degree as the crime that the defendant was

found guilty of attempting.6 Thus, an attempted felony is a felony under

Section 531. Under Section 4214(a), “any felony conviction can qualify as a

predicate felony….” 7 Consequently, Colon’s prior conviction for Attempted

Burglary, a felony, was a predicate felony under Section 4214(a), and his

sentence is not illegal. 8

       (7)    Colon’s argument that the specific reference to “an attempt to

commit a felony” in Section 4214(b) affects the interpretation and

application of Section 4214(a) has no merit. This Court previously has held
5
  11 Del. C. § 4214(a) (2015).
6
  11 Del. C. § 531 (2015) (“Attempt to commit a crime is an offense of the same grade
and degree as the most serious offense which the accused is found guilty of attempting.”).
7
  Cropper v. State, 2006 Wl 2827640, *1 (Del. Oct. 2, 2006) (emphasis added).
8
  Harris v. State, 840 A.2d 1242, 1244 (Del. 2004).


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that the later adoption of Section 4214(b) “was not intended to affect the

continued operation of the original four-felony rule under subsection (a).” 9

Moreover, the absence of the phrase “an attempt to commit a felony” in

Section 4214(a), and its presence in Section 4214(b), is easily reconciled.

An attempted felony is by definition included in the broad term “felony” as

used in subsection (a). Subsection (b), however, identifies a specific list of

crimes that qualify as predicate convictions for habitual offender status.

Ssubsection (b) references “attempts” of the listed offenses to make clear

that, in addition to the listed offense itself, attempts of the specifically listed

offenses also qualify as predicate convictions for habitual offender status

under Section 4214(b).

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

Superior Court is AFFIRMED.

                                              BY THE COURT:



                                              /s/ Collins J. Seitz, Jr.
                                                     Justice




9
    See Oney v. State, 446 A.2d 389, 393 (Del. 1982).


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