Opinion
No. 243, 1999.
Submitted: December 1, 1999.
Decided: January 4, 2000.
Appeal from Court Below — Superior Court in and for Sussex County of the State of Delaware, Cr. A. No. S96-08-0631.
APPEAL DISMISSED.
Before VEASEY, Chief Justice, HARTNETT and BERGER, Justices
ORDER
This 4th day of January, 2000, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, Alonzo Morris ("Morris"), filed this appeal from an order of the Superior Court denying his motion to correct sentence. Because the remedy sought by Morris has been granted by the Superior Court, we hereby dismiss the appeal on the basis of mootness.
(2) In February 1997, Morris pleaded guilty to assault in the second degree. He was sentenced to 8 years in prison, to be suspended after serving 15 months at Level V for 6 months of Level IV work release and 2 years and 6 months of Level III probation. In May 1997, Morris requested the Superior Court to amend its sentencing order to allow for his participation in the Passage Way Program, a treatment program for drug addiction, while serving the last 90 days of his sentence at Level V. In June 1997, in response to Morris' request, the Superior Court amended its sentencing order and referred Morris for participation in the Passage Way Program while serving the Level IV portion of his sentence. In December 1997, Morris wrote a letter to the Superior Court requesting that it rescind the amended sentencing order because he did not want to participate in the Passage Way Program during his Level IV sentence. The Superior Court denied Morris' request in the absence of a statement from the Passage Way Program that he did not require treatment for drug addiction.
(3) The record indicates Morris went to the doctor in February 1998 and reported he had sustained a left knee injury while playing basketball on or about December 25, 1997. The record also indicates that Morris' treating physician excused him from participating in physical activity because of his knee injury.
(4) While serving his Level IV sentence in February 1998, Morris failed to return to the Sussex Work Release Center after being given a medical treatment pass. In May 1998, the Superior Court found that he had violated the conditions of his Level IV work release and sentenced him to 6 years and 9 months in prison at Level V, with credit for time served, to be suspended for 1 year of probation at Level III upon successful completion of the Key Program, another drug treatment program. In September 1998 Morris filed a motion for reduction of sentence on the ground that he was physically unable to participate in the Key Program. The Superior Court denied the motion because it had no written confirmation of Morris' disability from the Department of Correction.
(5) Between September 1998 and May 1999, Morris made several requests to the Superior Court to modify his sentence because of his physical disability. The Superior Court reiterated that it needed notification directly from the Department of Corrections in order to act on the request. A motion docketed on April 20, 1999 was filed away, without judicial action. In May 1999, Morris filed a motion for postconviction relief alleging the illegality of the Superior Court's June 9, 1997 sentence. The Superior Court denied Morris' motion. Morris appealed and also filed a petition for an extraordinary writ in this Court. By Order dated September 10, 1999, this Court remanded the matter to the Superior Court for action by a judge upon Morris' April 20, 1999 motion.
(6) On remand, the Superior Court held an evidentiary hearing and found that Morris was physically incapable of participating in a full-time Level V drug treatment program. By order dated October 12, 1999, the May 1998 sentence was reimposed and Morris was sentenced to 6 years and 9 months in prison, with credit for time served. All prison time was suspended and Morris was placed on probation at Level III for the balance of the sentence. The Superior Court's order indicates Morris stated at the evidentiary hearing that this modification of sentence was acceptable to him and he did not intend to take further action in this Court.
(7) While the Superior Court has addressed Morris' claim that that portion of his sentence requiring his participation in a treatment program be modified, thereby rendering that claim moot, in his reply brief on appeal Morris now asks this Court to "nullify" his sentence. His request appears to be based on his contention that he served more Level V prison time than he should have in violation of his constitutional rights. Morris has provided no factual support for this contention. Moreover, Morris' opening brief did not address this claim, which constitutes a waiver of the issue on appeal.
Stewart v. Snyder, Del. Supr., No. 95, 1999, Walsh, J., 1999 WL 636611 (Aug. 10, 1999) (ORDER)
We treat this as a request to vacate an illegal sentence. Super. Ct. Crim. R. 35(a).
Murphy v. State, Del. Supr., 632 A.2d 1150, 1152 (1993).
(8) This claim is without merit in any case. There is no evidence that Morris has been required to spend more time in prison than is permissible under the statutory guidelines. In February 1997, Morris pleaded guilty to assault in the second degree and was sentenced to 8 years in prison at Level V, to be suspended for work release and probation upon his serving 15 months at Level V. In February 1998, Morris was found to have violated the conditions of his probation and was sentenced to 6 years and 9 months at Level V, with credit for time served, to be suspended for 1 year at Level III upon successful completion of the Key Program. The Superior Court could have sentenced Morris to the full amount of Level V time remaining on his sentence, but in its discretion did not do so. On remand, the Superior Court in its discretion suspended all remaining prison time for probation at Level III. Because Morris' sentences did not exceed any penalty that the Superior Court was authorized to impose, his claim of a constitutional violation is without merit.
Brittingham v. State, Del. Supr., 705 A.2d 577, 578 (1998).
Ingram v. State, Del. Supr., 567 A.2d 868, 869-70 (1989).
Warren v. State, Del. Supr., No. 99, 1998, Veasey, J., 1998 WL 382640 (June 12, 1998) (ORDER).
NOW, THEREFORE, IT IS ORDERED that the appeal is DISMISSED AS MOOT.