IN THE SUPREl\/[E COURT OF THE STATE OF DELAWARE

Al\/IIR FATIR a./k/a STERLI`NG §
HOBBS, §
§ No. 51, 2016
Defendant Below, §
Appellaflf, § Court Below--Superior Court
§ of the State of Delaware,
v.
§
STATE OF DELAWARE’ § Cr. ID NO. 75060892])1
plaintiff Below, §
Appellee. §

Submitted: April 5, 2016
Decided: May 24, 2016

Before VALII~IURA, VAUGHN, and SEITZ, Justices.
O R D E R

This 24th day of May 2016, upon consideration of the appellant’s opening
brief, the State’s motion to affirm, and the record below, it appears to the Court
that:

(l) The appellant, Amir Fatir, filed this appeal from the Superior Court’s
denial of his motion for sentence review. The State of Delaware has filed a motion
to affirm the judgment below on the ground that it is manifest on the face of Fatir’s
opening brief that his appeal is without merit. We agree and affirrn.

(2) In 1976, a Superior Court jury convicted Fatir of Murder in the First

Degree, Robbery in the First Degree, Conspiracy in the Second Degree, and

Possession of a Deadly Weapon during the Commission of a Felony ("PDWCF").
The Superior Court sentenced Fatir to death. The death sentence ultimately was
vacated, and Fatir was resentenced to life imprisonment on his murder conviction.l
Fatir’s thirty year sentence for PDWCF was vacated in 2015.

(3) On December 29, 2015, Fatir filed a two-page motion for sentence
review. Relying upon the United States Supreme Court’s decisions in Roper v.
Simmons,z Graham v. Florida,3 and Miller v. Alabama" and ll Del. C. § 4209A,5
Fatir argued that his prison sentence should be modified to a term of less than life
imprisonment because his brain was immature when he committed the crimes at
the age of twenty-two. The Superior Court denied the motion, concluding that the
motion was time-barred and the life sentence for Murder in the First Degree was

mandatory and could not be reduced. This appeal followed.

(4) In addition to the arguments he made below, Fatir argues for the first
time on appeal that the Roper, Graham, and Miller decisions, as well as the

enactment of Section 4209A, constitute extraordinary circumstances under

' See State v. Spence, 367 A.2d 983, 988 (Del. 1976) (finding Delaware‘s death penalty scheme
unconstitutional and ordering the imposition of life sentences without parole for nine death row
defendants, including Fatir).

2 543 U.S. 551, 578 (2005) (holding death penalty for crimes committed by defendants under the
age of eighteen was unconstitutionaI).

3 560 U.S. 48, 82 (2010) (holding imposition of life sentence without parole for non-homicide
crimes committed by juveniles was unconstitutional).

4 132 S. Ct. 2455, 2475 (2012) (holding mandatory life sentence without parole for those under
eighteen at the time of their crimes violates the Eighth Amendment).

5 ll Del. C. § 4209A (providing that person who is convicted of murder in the first degree for
crime committed before person’s eighteenth birthday will be sentenced to twenty-five years to
life imprisonment).

Superior Court Criminal Rule 35(b), Section 4209A is unconstitutional because it
is limited to offenders under the age of eighteen, his life sentence for Murder in the
First Degree constitutes cruel and unusual punishment in violation of the Eighth
Amendment, and he is eligible for sentence modification under ll Del. C. § 4217.
We review the Superior Court’s denial of a motion for modification of sentence for
abuse of discretion.° To the extent the claim involves a question of law, we review
the claim de novo." Claims that are not raised in the court below can only be
reviewed for plain error.a Regardless of the standard of review, Fatir’s claims are
without merit.

(5) To the extent Fatir contends that his sentence of life imprisonment is
illegal because his brain was not mature at the time of his crimes, a motion to
correct an illegal sentence under Rule 35(a) may be filed at any time.g 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 tenn 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.'° Fatir cites no authority holding that the mandatory imposition of a life

_6] Founrain v. State, 2014 WL 4102069, at *l (Del. Aug. 19, 2014).
1a
3 Kirkzey v. s¢are, 41 A.sd 372, 377 (1)¢1. 2012).
° super. ci. crim. R. ss(a).
'° B,~:n:ngham v. smre, 705 A.zd 577, 573 (1)@1. 1993).

sentence for Murder in the First Degree by a person like Fatir, who was over the
age of eighteen at the time of his crirnes, is unconstitutional or illegal.

(6) To the extent Fatir seeks a reduction of his sentence under Rule 35(b),
a motion for reduction of sentence filed more than ninety days after imposition of
the sentence will be considered only in extraordinary circumstances or if the
Department of Correction files an application under ll Del. C. § 4217." Fatir
filed his motion for sentence review more than ninety days after the imposition of
his sentence. Contrary to Fatir’s contentions, the Roper, Graham, and Miller
decisions and the enactment of Section 4209A do not constitute extraordinary
circumstances warranting review of his sentence. Fatir fails to acknowledge that
those decisions and that statute apply to defendants who were under the age of
eighteen at the time of their crimes.'z Fatir was twenty-two at the time of his
crimes.

(7) As to Fatir’s contention that he was entitled to relief under Section
4217, this section requires that the Department of Correction file an application
with the Superior Court "for good cause shown which certifies that the release of
the defendant shall not constitute a substantial risk to the community or the

defendant’s own self.""' There is no indication in the record that the Department

of Correction has filed such an application. Having carefully reviewed the
positions of the parties, we conclude that the Superior Court did not err in denying
Fatir’s motion for sentence review.

NOW, TI-[ER.EFORE, IT IS ORDERED that motion to affirm is GRANTED

and the judgment of the Superior Court is AFFIRMED.

BY TI-IE COURT:

 

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