Austin v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOHN W. AUSTIN, §
§
Defendant Below- § No. 185, 2016
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID 1102020008
Plaintiff Below- §
Appellee. §
Submitted: June 1, 2016
Decided: August 1, 2016
Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices.
ORDER
This 1st day of August 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, John Austin, filed this appeal from a Superior Court
order, docketed March 11, 2016, denying his motion for correction of sentence.
The State has filed a motion to affirm the judgment below on the ground that it is
manifest on the face of Austin‟s opening brief that his appeal is without merit. We
agree and affirm.
(2) In September 2011, a Superior Court jury convicted Austin of
Robbery in the First Degree and Possession of a Deadly Weapon During the
Commission of a Felony (“PDWCF”). The Superior Court sentenced him to a total
period of eighteen years at Level V incarceration, to be suspended after serving
eight years in prison for decreasing levels of supervision. This Court affirmed
Austin‟s convictions and sentence on direct appeal.1
(3) Since that time, Austin has filed unsuccessfully at least seven motions
in the Superior Court seeking modification or correction of his sentence. Austin
now appeals the Superior Court‟s order denying his latest motion for correction of
sentence. Austin‟s sole argument on appeal is that he could not be convicted or
sentenced for PDWCF because the metal rod that he used to threaten the victim
during the robbery was not a “deadly weapon.”
(4) Even if we assume that Austin‟s claim was properly raised in a motion
for correction of sentence and was not otherwise procedurally barred, it is clear
that the Superior Court committed no error in denying his motion because there is
no substantive merit to his claim that a two-foot long metal rod is not a deadly
weapon. Under 11 Del. C. § 222(5), a “deadly weapon” includes “any „dangerous
instrument,‟ as defined in paragraph (4) of this section, which is used, or attempted
to be used, to cause death or serious physical injury.” 2 Section 222(4) defines
“dangerous instrument” to include “any instrument, article or substance which,
1
Austin v. State, 2012 WL 1952326 (Del. May 30, 2012).
2
11 Del. C. § 222(5).
2
under the circumstances in which it is used, attempted to be used or threatened to
be used, is readily capable of causing death or serious physical injury.” 3 The two-
foot rod that Austin used to threaten the victim during the course of the robbery in
this case constitutes a deadly weapon within the meaning of the statute.4
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
3
Id. § 222(4).
4
Taylor v. State, 679 A.2d 449, 454 (Del. 1996) (“[T]he legislature no longer defines an item as
a deadly weapon according to its common, every-day usage…but instead has made dispositive
that item's potential for causing death or serious physical injury in the way it was actually used in
the circumstances leading to the charge.”).
3