Opinion
169 2021
03-04-2022
JAMARR CANNON, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: January 18, 2022
Superior Court of the State of Delaware Cr. ID No. K1706001541
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
Collins J. Seitz, Jr. Chief Justice
After consideration of the appellant's opening brief, the State's motion to affirm, and the record on appeal, it appears to the Court that:
(1) The appellant, Jamarr Cannon, appeals from the Superior Court's May 6, 2021, modified sentence order. The State has filed a motion to affirm the Superior Court's judgment on the ground that it is manifest on the face of Cannon's opening brief that the appeal is without merit. We agree and affirm.
(2) After a bench trial, Cannon was convicted of possession of cocaine (Tier 5), drug dealing cocaine (Tier 4), felony resisting arrest, and other charges arising from conduct that occurred on June 2, 2017. Cannon represented himself at trial and sentencing, with the assistance of standby counsel. The State sought habitual-offender sentencing under 11 Del. C. § 4214(d) for the offense of resisting arrest. On April 11, 2018, the Superior Court granted the State's motion, which Cannon did not contest, and sentenced Cannon as follows: (i) for possession of cocaine (Tier 5), to twenty-five years of imprisonment, suspended after fifteen years for decreasing levels of supervision, with the first two years of imprisonment imposed as a mandatory term; (ii) for resisting arrest, under 11 Del. C. § 4214(d), to twenty-five years of imprisonment, suspended after four years for one year of Level III probation, with the first two years of imprisonment imposed as a mandatory term; and (iii) for the remaining charges, to pay a fine. Cannon appealed, arguing that the Superior Court had erred in denying his motion to suppress all evidence derived from the traffic stop that resulted in his arrest. This Court affirmed.
This charge merged with the Tier 5 cocaine-possession charge for sentencing.
11 Del. C. § 1257(a)(1) (class G felony).
See State v. Cannon, Cr. ID No. 1706001541, Sentencing Transcript at 10:15 (Del. Super. Ct. Apr. 11, 2018) (stating, when asked his position on the State's motion for habitual-offender sentencing, "I'm not contesting").
We note that the sentencing transcript reflects that the court sentenced Cannon under Section 4214(b). See id. at 22:6-8 ("Defendant is declared an habitual offender and is sentenced pursuant to 11 Delaware Code Section 4214(b) on this [resisting arrest] charge."). But the transcript and the habitual-offender motion reflect that the State sought sentencing under Section 4214(d), and the written sentencing order imposed the sentence under that provision. See id. at 10:1-5 (prosecutor arguing that Cannon was eligible for sentencing under Section 4214(d)); Cannon, Cr. ID No. 1706001541, Docket Entry No. 48 (Del. Super. Ct. filed Mar. 6, 2018) (moving for habitual-offender sentencing under Section 4214(d)); Cannon, Cr. ID No. 1706001541, Docket Entry No. 56, Sentence Order (Del. Super. Ct. Apr. 11, 2018). Given later developments in the case, including this Court's vacatur of the April 11, 2018 sentencing order and Cannon's resentencing, we need not resolve these discrepancies.
Cannon v. State, 2018 WL 6575432 (Del. Dec. 12, 2018).
Id.
(3) Cannon then filed a motion for correction of sentence, arguing that his habitual-offender sentence was illegal because he was not eligible for sentencing under 11 Del. C. § 4214(d). The Superior Court denied the motion, and Cannon appealed. On appeal, the State conceded that Cannon was ineligible for habitual-offender sentencing under Section 4214(d) but moved for remand for resentencing under Section 4214(b), arguing that Cannon had three predicate felony convictions. Cannon did not oppose the State's motion to remand. This Court remanded the matter to the Superior Court, stating: "Upon remand, the Superior Court shall declare Cannon an habitual offender under the appropriate provision of § 4214 and resentence him for his resisting arrest conviction."
Cannon v. State, 2021 WL 855878 (Del. Mar. 5, 2021).
(4) On April 1, 2021, Cannon filed a motion for modification of sentence, through which he sought modification of his drug-possession sentence in conjunction with the resentencing for resisting arrest. On May 4, 2021, the Superior Court convened a hearing on the motion and resentencing. Counsel for the State and Cannon's standby counsel indicated that they had first received Cannon's motion earlier that day. During that hearing, the State took the position that, under this Court's remand order, Cannon should be resentenced only for resisting arrest and not for drug possession. Cannon, who stated that he desired to continue representing himself, explained that he was not arguing that this Court's order required the Superior Court to resentence him for drug possession, but rather that he was seeking modification of his drug-possession sentence under Superior Court Criminal Rule 35(d). The State asked for a two-week continuance so that it could respond to Cannon's motion. The court granted a two-day continuance.
Superior Court Criminal Rule 35(d) provides: "If judgments of sentence were entered on more than one offense in the same sentencing order and the court corrects, modifies, or reduces one or more of those judgments under the provisions of this rule, the court may consider modification of other judgments provided that the aggregate sentence of all such judgments after modification is no greater than the aggregate sentence of all such judgments entered under the original sentencing order." See Cannon, Cr. ID No. 1706001541, Motion and Resentencing Transcript at 9:3-5 (Del. Super. Ct. May 4, 2021) ("Your Honor, I'm not saying that you must resentence me on all the other counts. I was more or less asking in accordance with Rule 35(d)."); see also id. at 11:4-8 (agreeing that the Supreme Court order provided for resentencing on resisting arrest and stating that he was seeking modification of "the whole sentence in accordance with Rule 35(d)").
(5) On May 6, 2021, the Superior Court held a hearing on the resentencing and Cannon's Rule 35(d) motion. At that hearing, the State indicated that it was not opposed to the court's reconsideration under Rule 35(d) of the sentence for the other charges. Cannon presented arguments for a reduced overall sentence, and the State argued that the Superior Court should again impose fifteen years of unsuspended time for drug possession, two years of which would be mandatory, and four years of unsuspended time for resisting arrest under Section 4214(b), one year of which would be mandatory. The Superior Court then sentenced Cannon as follows: (i) for possession of cocaine (Tier 5), to twenty-five years of imprisonment, suspended after fifteen years for decreasing levels of supervision, with the first two years of imprisonment imposed as a mandatory term; (ii) for resisting arrest, under 11 Del. C. § 4214(b), to twenty-five years of imprisonment, suspended after four years for one year of Level III probation, with the first one year of imprisonment imposed as a mandatory term, and (iii) for the remaining charges, to pay a fine.
Cannon, Cr. ID No. 1706001541, Motion and Resentencing Transcript at 2:21-3:20, 15:22-16:21 (Del. Super. Ct. May 6, 2021).
(6) On appeal, Cannon argues that imposition of the habitual-offender sentence under Section 4214(b) violated the Double Jeopardy Clause and his due-process rights because in 2018 the State sought habitual-offender sentencing under Section 4214(d) and failed to meet its burden of showing the requisite number of predicate violent felonies under that provision. Cannon's claim is without merit because the Superior Court did not increase Cannon's punishment after remand- rather, the sentences were the same, except that the court reduced the mandatory portion of the sentence for resisting arrest. Cannon does not contend that he did not have the requisite number of predicate convictions for sentencing under Section 4214(b).
Cf. White v. State, 576 A.2d 1322, 1323, 1328 (Del. 1990) ("After a related sentence has been vacated on appeal, a trial judge may resentence a defendant up to the combined duration of the original sentences without violating the constitutional prohibition against double jeopardy."); cf. also id. at 1329 (rejecting claim that resentencing violated due process because defendant's total sentence "remained unchanged after resentencing, except that the mandatory portion of his sentence was reduced from eight to three years").
The applicable version of Section 4214(b)-which is the version that was in effect when Cannon committed the offense of resisting arrest for which the habitual-offender sentence was imposed, Wright v. State, 2022 WL 499979, at *3 (Del. Feb. 17, 2022)-provided: "Any person who has been 3 times convicted of a felony under the laws of this State . . . and who shall thereafter be convicted of a subsequent felony, which is the person's first Title 11 violent felony . . ., as defined in § 4201(c) of this title, shall receive a minimum sentence of ½ of the statutory maximum penalty provided elsewhere in this title, unless the maximum statutory penalty is life in which case the minimum sentence shall be 30 years, for the subsequent felony which forms the basis of the States [sic] petition to have the person declared to be an habitual criminal, up to life imprisonment . . . .."). 11 Del. C. § 4214(b) (eff. Apr. 13, 2017 to July 10, 2018).
(7) Cannon also argues that his due-process rights were violated because the Superior Court did not advise him of his right to appeal. Even if the Superior Court was required to advise Cannon of his right to appeal in the circumstances of this case, about which we express no opinion, we find no reversible error because Cannon filed a timely appeal.
See Del. Super. Ct. Crim. R. 32(a)(2) ("After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise a defendant who is not represented by counsel of the defendant's right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere.").
See generally Charbonneau v. State, 904 A.2d 295, 319 (Del. 2006) (rejecting defendant's claim that her due process rights were violated by prosecution's exclusive possession of information about jurors because defendant had not shown any prejudice).
(8) Cannon also contends that his due-process rights were violated because an updated presentence report was not prepared nor provided to him following the remand. Cannon does not cite any authority or support for these conclusory claims, nor does he suggest what additional information an updated report would have provided that would have changed the sentence. Moreover, Cannon included in his Rule 35(d) motion, and discussed during the resentencing hearing, updates regarding "positive changes to move forward in life," such as coursework completed and remaining writeup free in prison. The Superior Court considered the information presented and determined that the sentence remained appropriate. We find no basis for reversal.
Cf. Averill v. State, 2010 WL 2602386, at *2 (Del. June 29, 2010) (rejecting claim challenging sentence on the grounds that an updated presentence report was not available, because defendant's history was discussed during the sentencing hearing and "[t]here is no indication that the lack of an updated presentence report had any impact on the outcome of the proceedings").
Cannon, Cr. ID No. 1706001541, Motion and Resentencing Transcript at 4:3-5:23 (Del. Super. Ct. May 6, 2021).
Id. at 17:4-18:9.
(9) Cannon also asserts that his due-process rights were violated when the State indicated that it did not oppose his Rule 35(d) motion but then did oppose the motion. This claim mischaracterizes the record. As discussed above, after indicating at the May 4, 2021, hearing that it intended to oppose the court's reconsideration of the drug-possession sentence and obtaining a two-day continuance to prepare a response, the State indicated at the May 6, 2021, hearing that it was not opposed to the court's reconsideration under Rule 35(d) of the sentences for all the charges. Cannon then presented arguments for a reduced overall sentence, and the State argued that the Superior Court should again impose fifteen years of unsuspended time for drug possession and four years of unsuspended time for resisting arrest. The Superior Court then resentenced Cannon on all the charges. We find no reversible error as to this claim.
(10) Finally, Cannon argues that the Superior Court erred by failing to engage in a colloquy with Cannon at the May 6, 2021, resentencing regarding his waiver of counsel. "The decision to proceed pro se involves a waiver of a defendant's Sixth Amendment right to counsel." The benefits associated with that right "must be waived knowingly and intelligently." "A determination of whether a defendant has intelligently waived the right to counsel depends upon the particular facts and circumstances surrounding th[e] case, including the background, experience, and conduct of the defendant." "The trial court is entrusted with the responsibility of ensuring that the decision by a defendant to represent himself is made intelligently and competently." Under the circumstances of this case, we conclude that Cannon's claim that the Superior Court erred by not conducting a full waiver-of-counsel colloquy at the resentencing is without merit. Cannon represented himself at trial and his initial sentencing, with the assistance of standby counsel, and he has not argued that his initial waiver of counsel was not knowing and intelligent. Following remand for resentencing, the Superior Court asked Cannon if he wanted to continue representing himself, with the assistance of standby counsel, and Cannon stated that he did. Under these circumstances, we conclude that the Superior Court did not err by not conducting a full waiver-of-counsel colloquy with Cannon at his resentencing.
Briscoe v. State, 606 A.2d 103, 107 (Del. 1992).
Id.
Id.
Id.
Cannon, Cr. ID No. 1706001541, Motion and Resentencing Transcript at 5:13-6:9 (Del. Super. Ct. May 4, 2021).
Cf. United States v. Norwood, 566 Fed.Appx. 123, 126 (3d Cir. 2014) ("Absent an express revocation of the criminal defendant's waiver or some other change in circumstances, a district court has no standing obligation to revisit the waiver question and conduct another Faretta colloquy at a later stage in criminal proceedings."); United States v. Vas, 255 F.Supp.3d 598, 602 (E.D. Pa. 2017) (rejecting argument that court erred by allowing defendant "to represent himself at his re-sentencing without first conducting an appropriate colloquy" because the court had conducted a thorough colloquy before the trial, there was no indication that circumstances had changed such that a renewed colloquy would be necessary, defendant did not express a desire to revoke his pro se status, and defendant repeatedly reaffirmed his desire to represent himself, including at the resentencing hearing).
NOW, THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED, and the judgment of the Superior Court is AFFIRMED.