         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 JOSHUA D. BENSON                        §
                                         §
       Defendant Below,                  §   No. 216, 2018
       Appellant,                        §
                                         §   Court Below—Superior Court
       v.                                §   of the State of Delaware
                                         §
 STATE OF DELAWARE,                      §   ID. No. 1611007969 (K)
                                         §
       Plaintiff Below,                  §
       Appellee.                         §

                           Submitted: September 25, 2018
                            Decided: December 5, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                     ORDER

      After careful consideration of the appellant’s opening brief, the appellee’s

motion to affirm, and the record on appeal, it appears to the Court that:

      (1)    The appellant, Joshua D. Benson, filed this appeal from the Superior

Court’s denial of his motion for correction of an illegal sentence. The State of

Delaware has filed a motion to affirm the Superior Court’s judgment on the ground

that it is clear on the face of Benson’s opening brief that his appeal is without merit.

We agree and affirm.

      (2)    On August 1, 2017, Benson pled guilty to Possession of a Firearm by a

Person Prohibited (“PFBPP”) and Resisting Arrest. As part of his plea agreement,

the parties agreed that Benson was a habitual offender and to be sentenced under 11
Del. C. §4214(d) due to his convictions for Assault in the Second Degree in 2003,

Reckless Endangering in the First Degree in 2005, and Carrying a Concealed Deadly

Weapon (Firearm) in 2012. They also agreed to recommend a fifteen-year Level V

sentence for the PFBPP offense and one year of suspended Level V time for the

Resisting Arrest offense. On August 1, 2017, the Superior Court accepted Benson’s

guilty plea, declared him a habitual offender, and sentenced him as the parties

recommended in the plea agreement. Benson did not appeal the Superior Court’s

judgment.

      (3)    On October 4, 2017, Benson filed a motion for correction of illegal

sentence under Superior Court Criminal Rule 35(a). He argued that his sentence

under § 4214(d) was illegal because a first conviction for Carrying a Concealed

Deadly Weapon is a non-violent felony. The State opposed the motion. On April

17, 2018, the Superior Court denied Benson’s motion because the sentence was

imposed pursuant to a plea agreement, the motion was time-barred, the sentence

imposed was mandatory and could not be reduced, and the sentence was appropriate

for all of the reasons stated at sentencing. This appeal followed. The Superior Court

denied Benson’s motion for transcripts at State expense.

      (4)    In his opening brief, Benson argues that: (i) the Superior Court erred in

denying his motion for transcripts at State expense; (ii) the Superior Court erred in

finding his motion time-barred; and (iii) he could not be sentenced as a habitual


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offender under § 4214(d) because Carrying a Concealed Deadly Weapon is not a

violent felony under 11 Del. C. § 4201(c). As to the denial of Benson’s motion for

transcripts at State expense, the transcript of Benson’s guilty plea and sentencing is

attached to the State’s motion to affirm and does not support Benson’s claims.

        (5)    As to Benson’s other claims, we review the Superior Court’s denial of

a motion for correction of sentence for abuse of discretion.1 Questions of law are

reviewed de novo.2 Even though Benson’s motion for correction of illegal sentence

was not time-barred,3 the motion was without merit. Benson agreed in his plea

agreement that he was subject to habitual offender sentencing under § 4214(d) due

to his convictions for Assault in the Second Degree in 2003, Reckless Endangering

in the First Degree in 2005 and Carrying a Concealed Deadly Weapon (Firearm) in

2012.

        (6)    Under § 4214(d), a person who has been convicted of two or more Title

11 violent felonies as defined in § 4201(d) and who is convicted of a third or

subsequent Title 11 violent felony must receive a minimum sentence of the statutory

maximum penalty for his latest Title 11 violent felony. Benson does not dispute that

Assault in the Second Degree and Reckless Endangering in the First Degree are


1
  Weber v. State, 2015 WL 2329160, at *1 (Del. May 12, 2015).
2
  Id.
3
  A motion for correction of illegal sentence may be filed at any time. Super. Ct. Crim. R. 35(a).
A motion to correct a sentence imposed in an illegal manner or for reduction of sentence must be
filed within 90 days of sentencing. Super. Ct. Crim. 35(b). Benson filed his motion on October
4, 2017, which was within 90 days of his sentencing on August 1, 2017.
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violent felonies. Carrying a Concealed Deadly Weapon (Firearm) is also, contrary

to Benson’s contention, designated as a violent felony under § 4201(c). The

statutory maximum penalty for PFBPP, which is a Class C felony for someone like

Benson who is eligible for sentencing under § 1448(e) due to a previous violent

felony conviction, is fifteen years.4 To the extent Benson claims he could not be

sentenced to more than ten years of Level V incarceration under § 1448(e)(1)(c), he

ignores that this section defines the minimum sentence for PFBPP, not the maximum

sentence.5

       NOW, THEREFORE, IT IS ORDERED that the motion to affirm is granted

and the judgment of the Superior Court is AFFIRMED.

                                             BY THE COURT:

                                             /s/ James T. Vaughn, Jr.
                                                   Justice




4
  11 Del. C. 1448(c) (providing that PFBPP is a Class C felony if the person is eligible for
sentencing under § 1448(e)); 11 Del. C. § 4205(b)(3) (maximum penalty for Class C felony) is
fifteen years of Level V incarceration).
5
  Carpenter v. State, 2015 WL 3454595, at *1 (Del. May 28, 2015) (holding ten-year sentence
imposed under § 4214 was not illegal for violating § 1448(e)(1)(c), which then provided for a five-
year sentence, because § 1448(e)(1)(c) “set the minimum sentence that the Superior Court was
required to impose” and that the Superior Court could impose up to life imprisonment under §
4214).

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