Landry v. State ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
GERALD A. LANDRY, §
§ No. 99, 2015
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. § in and for Kent County
§
STATE OF DELAWARE, § Cr. ID No. 1208001982
§
Plaintiff Below, §
Appellee. §
Submitted: August 28, 2015
Decided: November 13, 2015
Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices.
ORDER
This 13th day of November 2015, upon consideration of the parties’ briefs
and the Superior Court record, it appears to the Court that:
(1) In September 2013, the appellant, Gerald Landry, pled guilty to four
drug-related charges, including Aggravated Possession in a Tier 5 quantity and
Drug Dealing in a Tier 4 quantity.1 In accordance with the plea agreement, the
parties recommended a prison sentence of eight years. The Superior Court
sentenced Landry to a total of sixty-seven years at Level V suspended after eight
years for probation. Landry did not appeal the sentence. Landry’s motion to
withdraw the guilty plea is pending in the Superior Court.
1
Landry also pled guilty to Drug Dealing in a Tier 2 quantity and Conspiracy in the
Second Degree.
(2) This appeal is from the Superior Court’s denial of Landry’s motion
for correction of sentence under Superior Court Criminal Rule 35(a). On appeal,
Landry contends that his separate convictions and sentences for Aggravated
Possession Tier 5 and Drug Dealing Tier 4 violated the constitutional prohibition
against subjecting a defendant to double jeopardy. Based on the Court’s decision
in Ayers v. State, the State disagrees that the convictions violated principles of
double jeopardy; however, consistent with its position in Ayers v. State, the State
concedes that the convictions should merge and that Landry should be
resentenced.2
(3) Having carefully considered the parties’ briefs, the Court concludes,
as it did in Ayers v. State, that Landry’s separate convictions for Aggravated
Possession Tier 5 and Drug Dealing Tier 4 were not a violation of his
constitutional right not to be subjected to double jeopardy.3 The Court further
concludes that Landry’s claim to the contrary was outside the scope of a motion
for correction of sentence under Rule 35(a).4
(4) The Court will remand Landry’s case to the Superior Court with
instructions to merge the convictions on Aggravated Possession Tier 5 and Drug
2
Ayers v. State, 97 A.3d 1037, 1041 (Del. 2014) (―Although Ayers’ Double Jeopardy
claim lacks merit, the State acknowledges that the two crimes merge for purposes of
sentencing.‖). In Landry’s case, as in Ayers’, the same set of facts and cache of cocaine
provided the basis for the two charges.
3
Id.4
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
2
Dealing Tier 4.5 On remand, the Superior Court should resentence Landry to eight
unsuspended years at Level V, in accordance with the parties’ plea agreement and
the Superior Court’s original sentencing plan.6 Landry has a right to attend the
sentencing and to the assistance of counsel at sentencing.7
NOW, THEREFORE, IT IS ORDERED that the denial of the motion for
correction of sentence is AFFIRMED in part and REVERSED in part. This matter
is REMANDED to the Superior Court for further proceedings in accordance with
this Order. Jurisdiction is not retained.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
5
Ayers, 97 A.3d at 1042.
6
See Merillo v. State, 2005 WL 2475725, at *2 (Del. Aug. 16, 2005) (citing White v.
State, 576 A.2d 1322, 1328 (Del. 1990)).
7
Jones v. State, 672 A.2d 554, 555–56 (Del. 1996).
3