Opinion
No. 376, 2003.
Submitted: December 4, 2003.
Decided: January 12, 2004.
Court Below — Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. IN00-06-0939 and -0941.
Before VEASEY, Chief Justice, BERGER, and JACOBS, Justices.
ORDER
This 12th day of January 2004, upon consideration of the opening brief and the State's motion to affirm, it appears to the Court that:
(1) Joseph Selby filed this appeal from the Superior Court's denial of his motion for correction of sentence. The State of Delaware has filed a motion to affirm the Superior Court's judgment on the ground that it is manifest on the face of Selby's opening brief that his appeal is without merit. We agree and affirm.
(2) The record reflects that Selby pleaded guilty in 2001 to second degree assault and possession of a deadly weapon during the commission of a felony. The guilty plea agreement and the transcript of the guilty plea colloquy reflect that, in exchange for Selby's plea, the State agreed not to file an habitual offender motion and to recommend a sentence of five years in prison. At his sentencing in September 2001, the State submitted its recommendation of five years in prison. The Superior Court, however, rejected that recommendation and sentenced Selby to ten years imprisonment to be suspended after six years for four years of probation. In June 2003, Selby moved for correction of sentence, alleging that his sentence was inconsistent with the terms of his plea agreement. The Superior Court summarily denied Selby's motion on the ground that it was not bound by the State's sentencing recommendation.
(3) After careful consideration, we find it manifest that the judgment of the Superior Court must be affirmed. The record in this case, including Selby's plea agreement, the guilty plea colloquy and the sentencing hearing transcript, unequivocally reflects Selby's understanding that the Superior Court was not bound by the State's sentencing recommendation and that the sentencing judge could impose more than five years imprisonment. Accordingly, there was no factual basis to correct Selby's legally imposed sentence, and we find no error in the Superior Court's denial of Selby's motion for correction of sentence.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.