IN THE SUPREME COURT OF THE STATE OF DELAWARE

GERALD A. WEMER, §
§ No. 60, 2015
Defendant Below, §
Appellant, § Court BelowwSuperior Court
§ of the State of Delaware in and
V. § for New Castle County
§
STATE OF DELAWARE, § Cr. ID No. 9603002509
§
Plaintiff Below, §
Appellee. §

Submitted: April 7, 2015
Decided: June 16, 2015

Before STRINE, Chief Justice, HOLLAND and VALIHURA, Justices.
O R D E R

This 16th day of June 2015, upon consideration of the appellant’s
opening brief and the appellee’s motion to afﬁrm under Supreme Court Rule
25(a), it appears to the Court that:

(1) The appellant, Gerald A. Wilmer, ﬁled this appeal ﬁ'om the
Superior Court’s order dated January 15, 2015, denying his motion for
reduction of sentence under Superior Court Criminal Rule 35(b). The State
of Delaware has moved to afﬁrm the Superior Court’s judgment on the
ground that it is manifest on the face of Wilmer’s opening brief that the

appeal is without merit. We agree and affirm.

(2) Following his grand jury indictment in 1996 and his
reindictment in 1997, Wilmer was convicted of one count of Unlawful
Sexual Intercourse in the First Degree (“USI”).1 On September 12, 1997,
Wilmer was sentenced, effective April 6, 1996, to thirty years at Level V
(ﬁfteen years mandatory), suspended after twenty—ﬁve years for ﬁve years of
decreasing levels of supervision. In March 1998, this Court afﬁrmed
Wilmer’s conviction and sentence.2

(3) In the past seventeen years, Wilmer has repeatedly and
unsuccessfully challenged his conviction and sentence in motions for
postconviction relief under Superior Court Criminal Rule 61, a motion for
correction of illegal sentence under Superior Court Criminal Rule 35(a), and
in state and federal petitions for a writ of habeas corpus. In many of those
motions and petitions, Wilmer assailed his 1997 reindictment and the
effectiveness of his trial and postconviction counsel, claiming that his
reindictment violated principles of double jeopardy and constituted

vindictive prosecution.3

1 11 Del. C. § 775 (1996) (repealed 1998). Former 11 Del. C. § 775, codifying Unlawful
Sexual Intercourse in the First Degree, was repealed and replaced by 11 Del. C. § 773,
codifying Rape in the First Degree. 71 Del. Laws, c. 285, § 13 (1998).

2 Wilmer v. State, 1998 WL 123200 (Del. Mar. 6, 1998).

3 See, e.g., State v. Wilmer, 2003 WL 751181, at*2 (Del. Super. Feb. 28, 2003) (denying
second motion for postconviction relief), aﬂ'd, 2003 WL 21519871 (Del. July 3, 2003);
Wilmer v. Carroll, 2005 WL 3338556, at *1 (D. Del. Dec. 8, 2005) (dismissing federal

2

(4) Wilmer did not ﬁle an appeal from the denial of his ﬁrst motion
for postconviction relief. He did, however, appeal the denials of his second,
third, fourth, sixth, seventh, and eighth motions for postconviction relief.4
Also, Wilmer appealed the denial of his motion for correction of illegal

sentence?

(5) In October 2014, Wilmer ﬁled a motion for reduction of
sentence under Superior Court Criminal Rule 35(b). Paradoxically, although
he was sentenced effective April 6, 1996, Wilmer asked the Superior Court
to credit him for the time he spent incarcerated between April 29, 1996, the
date of his original indictment, and April 8, 1998, the date the nolle prosequi

of the original set of charges was entered on the Superior Court docket. By

habeas corpus petition); Wilmer v. State, 2010 WL 3860657, at 11 3 (Del. Oct. 4, 2010)
(afﬁrming denial of sixth motion for postconviction relief); Wilmer v. State, 2011 WL
1413305, at 1[ 3 (Del. April 12, 2011) (affirming denial of motion for correction of illegal
sentence); State v. Wilmer, 2013 WL 4828743, at 1! 2 (Del. Super. Aug. 2, 2013)
(summarily dismissing seventh motion for postconviction relief), dismissed, 2013 WL
5407222 (Del. Sept. 23, 2013); State v. Wilmer, 2014 WL 603257, at 11 2 (Del. Super. Jan.
31, 2014) (summarily dismissing eighth motion for postconviction relief), a ’d, 2014 WL
2601614 (Del. June 9, 2014).

4 Wilmer v. State, 2003 WL 21519871 (Del. July 3, 2003) (afﬁrming denial of second
motion for postconviction relief); Wilmer v. State, 2006 WL 2787487 (Del. Sept. 26,
2006) (afﬁrming denial of third motion for postconviction relief); Wilmer v. State, 2008
WL 2955861 (Del. Aug. 4, 2008) (affirming denial of fourth motion for postconviction
relief); Wilmer v. State, 2010 WL 3860657 (Del. Oct. 4, 2010) (afﬁrming denial of sixth
motion for postconviction relief); Wilmer v. State, 2013 WL 5407222 (Del. Sept. 23,
2013) (afﬁrming summary dismissal of seventh motion for postconviction relief); Wilmer
v. State, 2014 WL 2601614 (Del. June 9, 2014) (afﬁrming summary dismissal of eighth
motion for postconviction relief).

5 Wilmer v. State, 2011 WL 1413305 (Del. April 12, 2011) (afﬁrming denial of motion
for correction of illegal sentence).

order dated January 15, 2015, the Superior Court denied the motion for
reduction of sentence as time-barred, noting that “many of the arguments
made by Mr. Wilmer have been recently made, and rejected by the Court in
a request for relief under Criminal Rule 61.”6

(6) On appeal from the denial of his motion for reduction of
sentence, Wilmer devotes the majority of his opening brief to claims that his
1997 reindictment deprived him of due process, that the State’s actions were
prejudicial, and that his trial counsel was ineffective. Wilmer asks this
Court to “look past” the time limitation of Superior Court Criminal Rule
35(b) and to reduce his sentence by two years “despite the fact a complete
reversal is warranted.”

(7) It is manifest on the face of Wilmer’s opening brief that this
appeal is without merit. Wilmer’s claims, brought in a motion for reduction
of sentence under Superior Court Criminal Rule 35, essentially challenge the
legality of his conviction, which can only be brought in a motion for

postconviction relief under Superior Court Criminal Rule 61.7 Wilmer

6 See Del. Super. Ct. Crim. R. 35(b) (providing that a motion for reduction of sentence
ﬁled more than ninety days after sentencing will be considered only in “extraordinary

circumstances” or when the Department of Correction has ﬁled an application under 11
Del. C. §4217).

7 See Del. Super. Ct. Crirn. R. 61(a)(2) (regarding exclusiveness of remedy under Rule
61). Briddell v. State, 2013 WL 6212228, at n.1 (Del. Nov. 26, 2013) (citing Tatem v.
State, 787 A.2d 80, 81-82 (Del. 2001)).

“cannot continue to litigate previously decided issues by changing the
number of the Superior Court rule under which he seeks postconviction
relief.”8

NOW, THEREFORE, IT IS ORDERED that the State’s motion to
afﬁrm is GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

Kggwg H

Justice

B Brittingham v. State, 705 A.2d 577, 579 (Del. 1998).
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