Opinion
No. 339, 1998.
Decided: November 20, 1998.
Superior (Kent) CrA K96-01-0474.
Affirmed.
Unpublished Opinion is below.
THOMAS MARSHALL, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 339, 1998. In the Supreme Court of the State of Delaware. Submitted: October 30, 1998. Decided: November 20, 1998.
Before VEASEY, Chief Justice, WALSH, and HOLLAND, Justices.
ORDER
This 20th day of November 1998, upon consideration of the appellant's opening brief and the State of Delaware's motion to affirm, it appears to the Court that:
(1) The defendant-appellant, Thomas Marshall ("Marshall"), has filed this appeal from an order of the Superior Court denying Marshall's motion for correction of sentence pursuant to Superior Court Criminal Rule 35(a) ("Rule 35(a)"). The State of Delaware ("State") has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Marshall's opening brief that the appeal is without merit. Supr. Ct. R. 25(a). We agree and affirm.
(2) In December 1996, Marshall pleaded guilty to one count of second degree forgery. As part of the written plea agreement, Marshall stipulated that he qualified for sentencing as an habitual offender pursuant to 11 Del. C. § 4214(a). In return for Marshall's plea, the State agreed to enter a nolle prosequi on three charges of theft by false pretense and on two charges of second degree forgery. In addition, the State agreed to recommend a sentence of five years at Level V incarceration. On April 18, 1997, the Superior Court declared Marshall an habitual offender and sentenced him to four years at Level V incarceration followed by six months at Level III probation.
(3) Marshall did not appeal the Superior Court's sentence. Instead, ten days after sentencing, Marshall's counsel filed a motion for reduction of sentence, which was denied by the Superior Court. Approximately one year later, Marshall, appearing pro se, filed a motion for reduction of sentence, which also was denied by the Superior Court.
(4) In June 1998, Marshall filed a motion for correction of sentence. Marshall claimed that his sentencing under the habitual offender statute was improper because the State did not file a motion, and the Superior Court did not conduct a hearing, as required by 11 Del. C. § 4215(b). Marshall further claimed that the sentence imposed by the Superior Court violated 11 Del. C. § 4214(a) because it included a period of probation. By order dated July 1, 1998, the Superior Court denied Marshall's motion, and this appeal followed.
(5) In his opening brief on appeal, Marshall repeats the claims he made in his Rule 35(a) motion. In addition, Marshall complains that: (i) second degree forgery is not a qualifying felony under 11 Del. C. § 4214(a); (ii) the investigating police officer failed to give Miranda warnings; and (iii) the guilty plea form was not filled out in Marshall's own handwriting as the form's instructions require. Marshall's contentions are procedurally and/or substantively without merit.
(6) Marshall claims that second degree forgery is not a qualifying felony under 11 Del. C. § 4214(a). Marshall's claim is without merit. Second degree forgery is classified as a felony. 11 Del. C. § 861(b)(2). Under 11 Del. C. § 4214(a), the triggering felony is "a subsequent felony" and is not limited to "violent" felonies, as Marshall seems to suggest. Oney v. State, Del. Supr., 446 A.2d 389, 394 (1982).
(7) Next, Marshall claims that the investigating police officer failed to give him Miranda warnings, and that the guilty plea form was not filled out in Marshall's own handwriting. These claims were neither raised in, nor considered by, the Superior Court. Claims not fairly presented in the trial court are not considered by this Court absent plain error which is not evident here. Supr. Ct. R. 8. Furthermore, "[t]he narrow function of a Rule 35(a) motion is to permit correction of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence." Brittingham v. State, Del. Supr., 705 A.2d 577, 578 (1998) (quoting Hill v. United States, 368 U.S. 424, 430 (1962)). Accordingly, because Marshall's claim of a Miranda violation, and his claim challenging the guilty plea form, do not challenge the legality of Marshall's sentence, no relief is available to Marshall under Rule 35(a) with respect to either of those claims.
(8) Marshall claims, as he did in his Rule 35(a) motion, that he was denied due process because the State did not file a motion, and the Superior Court did not hold a hearing, to declare Marshall an habitual offender. Marshall's claim is without merit. A motion and a hearing were not required under the circumstances of this case. Indeed, Marshall was deemed to have waived the procedural requirements of the habitual offender statute. Marshall's waiver is evidenced by his stipulation, that was set forth in the written plea agreement which was signed by Marshall, and by statements made by Marshall and/or his counsel at the guilty plea hearing and at sentencing, that Marshall had the requisite number of felony convictions and thus qualified for sentencing as an habitual offender. Abdul-Akbar v. State, Del. Supr., No. 447, 1997, Berger, J., 1997 WL 776208 (Dec. 4, 1997) (ORDER). Marshall is bound by his written plea agreement, and by his statements and those of his counsel, that he was eligible for sentencing as an habitual offender. See Somerville v. State, Del. Supr., 703 A.2d 629, 632 (1997).
(9) Marshall's final claim, that he raised in his Rule 35(a) motion, is that his sentence is illegal because it includes a six-month probationary period that 11 Del. C. § 4214(a) does not authorize. Marshall's claim is without merit. Section 4214(a) requires that any sentence imposed under that subsection must be "served in its entirety at a full custodial Level V institutional setting without benefit of probation or parole." The sentence imposed upon Marshall, i.e., four years at Level V incarceration, fully conforms to that requirement. The additional six months at Level III probation "simply constitutes a period of custodial supervision that 11 Del. C. § 4204(l) required the Superior Court to impose." Hoover v. State, Del. Supr., No. 474, 1996, Veasey, C.J., 1997 WL 753392 (Nov. 24, 1997) (ORDER). This period of probation does not violate the provision of § 4214(a) that an habitual offender shall serve the Level V sentence without benefit of probation or parole.
(10) It is manifest on the face of Marshall's opening brief that the appeal is without merit. The issues raised are clearly controlled by settled Delaware law, and to the extent the issues on appeal implicate the exercise of judicial discretion, there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.