Elmore v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
AMIR ELMORE, §
§
Defendant Below- § No. 246, 2016
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID 1404013039B
Plaintiff Below- §
Appellee. §
Submitted: May 27, 2016
Decided: July 21, 2016
Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
ORDER
This 21st day of July 2016, upon consideration of the appellant’s opening
brief, the State’s motion to affirm, and the record on appeal, it appears to the Court
that:
(1) The appellant, Amir Elmore, filed this appeal from the Superior
Court’s denial of his motion for correction of sentence. The State filed a motion to
affirm the judgment below on the ground that it is manifest on the face of Elmore’s
opening brief that his appeal is without merit. We agree and affirm.
(2) On September 29, 2014, Elmore was convicted after a bench trial of
one count each of Possession of a Firearm by a Person Prohibited (“PFPP”) and
Possession of Ammunition by a Person Prohibited. The Superior Court
immediately sentenced Elmore to a total period of fifteen years at Level V
incarceration to be suspended after serving a minimum mandatory prison term of
ten years for one year of Level III probation. The ten-year minimum mandatory
sentence was required by 11 Del. C. § 1448(e)(1)(c) because Elmore had two prior
convictions for second degree robbery.1 This Court affirmed his convictions and
sentence on direct appeal.2
(3) In April 2016, Elmore filed a motion for correction of illegal sentence,
alleging that his ten-year minimum mandatory sentence for PFPP is illegal. The
Superior Court denied the motion because it was untimely and because Elmore’s
sentence was appropriate. This appeal followed. Elmore’s sole argument in his
opening brief is that the Superior Court erred in treating his motion for correction
of sentence under Superior Court Criminal Rule 35(a) as a motion for modification
of sentence under Rule 35(b).
(4) We review the Superior Court’s denial of a motion for correction
sentence under Rule 35(a) for abuse of discretion, although questions of law are
reviewed de novo.3 Under Rule 35(a), a sentence is illegal if it exceeds statutory
limits, violates double jeopardy, is ambiguous with respect to the time and manner
in which it is to be served, is internally contradictory, omits a term required to be
1
Those convictions were in Cr. ID 0910007584 and Cr. ID 1301012908.
2
Elmore v. State, 2015 WL 3613557 (Del. June 9, 2015).
3
Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
2
imposed by statute, is uncertain as to the substance of the sentence, or is a sentence
that the judgment of conviction did not authorize.4
(5) Although the Superior Court mistakenly treated Elmore’s motion as a
motion for modification of sentence under Rule 35(b), rather than a motion for
correction of sentence under Rule 35(a), we nonetheless affirm the Superior
Court’s denial of the motion on the independent and alternative ground that the
motion lacked merit under Rule 35(a).5 Elmore conceded at sentencing that he had
two prior convictions in 2010 and 2013 for second degree robbery, which is a
violent felony.6 Thus, under 11 Del. C. § 1448(e)(1)(c), the Superior Court was
required to sentence Elmore to a minimum mandatory term of ten years for his
2014 conviction for PFPP. His sentence, therefore, is not illegal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
4
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
5
Unitrin, Inc. v. American Gen. Corp., 651 A.2d 1361, 1390 (Del. 1995) (noting that the
Delaware Supreme Court may affirm a trial court’s judgment for reasons different than those
articulated by the trial court).
6
See 11 Del. C. § 4201(c).
3