Opinion
No. 43, 427 No. 428, 2011
01-23-2012
ARMON R. SAMPLE, Defendant/Petitioner-Appellant, v. STATE OF DELAWARE, Plaintiff/Respondent-Appellee.
CONSOLIDATED
Court—Superior Court of the State of Delaware in and for New Castle County Cr. ID No. 0910005514
Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices.
ORDER
This 23rd day of January 2012, upon consideration of the briefs of the parties and the record below, it appears to the Court that:
(1) The appellant, Armon R. Sample, filed appeals from three separate Superior Court orders--the January 12, 2011 violation of probation ("VOP") sentencing order, the July 26, 2011 order denying Sample's petition for a writ of habeas corpus and the July 29, 2011 order denying Sample's motions for sentence modification and to correct an illegal sentence pursuant to Superior Court Criminal Rule 35. We find no merit to any of the appeals. Accordingly, we affirm.
The appeals were consolidated by Order of this Court dated September 19, 2011.
(2) The record before us reflects that, in October 2009, Sample was indicted on charges of Possession With Intent to Deliver Cocaine, Maintaining a Vehicle for Keeping Controlled Substances, Possession of Drug Paraphernalia and Driving While License Suspended/Revoked. In January 2010, Sample pleaded guilty to a single count of Possession With Intent to Deliver Cocaine and the State dismissed the remaining charges. Sample was sentenced to 10 years of Level V incarceration, to be suspended for 18 months of Level III probation.
(3) On January 12, 2011, Sample was found to have committed a VOP. He was re-sentenced to 10 years at Level V, to be suspended after successful completion of Boot Camp for 18 months at Level III. Sample then filed a Rule 35(b) motion for sentence modification followed by a Rule 35(a) motion to correct an illegal sentence, both of which were denied by the Superior Court. Thereafter, Sample filed a petition for a writ of habeas corpus, which the Superior Court dismissed.
(4) In Sample's appeal from the Superior Court's VOP sentencing order, its orders denying his motions for correction of an illegal sentence under Rule 35(a) and for sentence modification under Rule 35(b), and its order dismissing his petition for a writ of habeas corpus, Sample claims that the Superior Court erroneously imposed Level V time for a VOP that involved merely "technical" violations and did not stem from new criminal offenses.
(5) A sentence is illegal under Rule 35(a) only if it exceeds the statutory limits, violates double jeopardy, is ambiguous or internally contradictory, or is not authorized by the judgment of conviction. Under Rule 35(b), the Superior Court only has discretion to reduce a sentence upon motion made within 90 days of the imposition of sentence, unless "extraordinary circumstances" are shown. Delaware law also provides that, once a defendant violates the terms of his probation, the Superior Court has the authority to require him to serve the original sentence imposed, as long as he is given credit for all Level V time previously served on that sentence and the sentence does not exceed the Level V term that a prior sentence left suspended.
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
State v. Sloman, 886 A.2d 1257, 1260 (Del. 2005); Del. Code Ann. tit. 11, §4334(c).
Gamble v. State, 728 A.2d 1171, 1172 (Del. 1999).
(6) The transcript of the VOP hearing in this case reflects that Sample admitted to the VOP. Sample's original sentence was 10 years at Level V, which was suspended in its entirety. There is no evidence that Sample's sentence was illegal or that the Superior Court exceeded its authority in imposing the entire amount of Level V time remaining on Sample's sentence once it had found that a VOP had been committed. Moreover, the record reflects that Sample's motions were untimely under Rule 35(b) and that there were no "extraordinary circumstances" present. Therefore, we conclude that Sample's claims of error under Rule 35 are without merit.
(7) Sample also claims that the Superior Court erred when it dismissed his petition for a writ of habeas corpus. In Delaware the writ of habeas corpus is limited to providing an opportunity for one illegally confined or incarcerated to obtain judicial review of the jurisdiction of the court ordering the commitment. A writ of habeas corpus is not available to one whose charges are plainly and fully set forth in the commitment.Sample does not claim that the Superior Court lacked jurisdiction to sentence him or that there was an irregularity in the form of his commitment, nor is there any such evidence in the record before us. As such, we conclude that the Superior Court properly dismissed Sample's petition for a writ of habeas corpus.
Hall v. Carr, 692 A.2d 888, 891 (Del. 1997).
Id.
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NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
Henry duPont Ridgely
Justice