Wynn v. State ( 2014 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
ITIUS D. WYNN, §
§ No. 452, 2014
Defendant Below- §
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware,
§ in and for New Castle County
STATE OF DELAWARE, § Cr. ID 0010022262
§
Plaintiff Below- §
Appellee. §
Submitted: September 10, 2014
Decided: September 19, 2014
Before HOLLAND, RIDGELY, and VALIHURA, Justices.
ORDER
This 19th day of September 2014, upon consideration of the appellant’s
opening brief, the State’s motion to affirm, and the record below, it appears to the
Court that:
(1) The appellant, Itius Wynn, filed this appeal from the Superior Court’s
denial of his motion for correction of an illegal sentence. The State has filed a
motion to affirm the judgment below on the ground that it is manifest on the face
of Wynn’s opening brief that his appeal is without merit. We agree and affirm.
(2) The record reflects that Wynn pled guilty in May 2010 to two counts
of Assault in the Second Degree, two counts of Possession of a Firearm During the
Commission of a Felony, and one count of Reckless Endangering in the First
Degree. The Superior Court sentenced him to a total period of thirty-one years at
Level V incarceration to be suspended after serving twenty-four years for
decreasing levels of supervision. This Court affirmed the Superior Court’s
judgment on direct appeal.1
(3) Thereafter, Wynn filed several unsuccessful motions seeking different
forms of relief. In May 2014, he filed a motion for correction of illegal sentence
under Superior Court Criminal Rule 35(a), arguing that his separate convictions for
assault and associated firearm offenses violated double jeopardy principles. The
Superior Court denied his motion on the ground that his claim was not properly
raised under Rule 35 and should have been raised in a motion for postconviction
relief under Rule 61. This appeal followed.
(4) It is well-established that the grounds for a motion seeking correction
of an illegal sentence under Superior Court Criminal Rule 35(a) must be limited to
alleged errors within the sentence itself, i.e., the sentence exceeds the statutory
limits, violates double jeopardy, is ambiguous or inconsistent, or omits a required
term.2 A motion under Rule 35(a) is not an appropriate means to argue alleged
errors in the underlying conviction.3 Although Wynn asserted that his convictions
violated double jeopardy, we think a fair reading of his motion presents a claim
1
Wynn v. State, 23 A.3d 145 (Del. 2011).
2
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
3
Id.
2
that his sentences violated double jeopardy and, thus, was properly raised in his
Rule 35 motion.
(5) Even though properly raised, however, Wynn’s argument has no
merit. It is well-established law that a defendant may be convicted of a firearm or
weapon offense used during the commission of a felony and also be separately
convicted and punished for the underlying felony.4 Accordingly, we affirm the
Superior Court’s denial of Wynn’s motion for correction of sentence, although we
do so for independent and alternative reasons.5
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Henry duPont Ridgely
Justice
4
See, e.g., Nance v. State, 903 A.2d 283, 288 (Del. 2006); Samuel v. State, 1997 WL 317362
(Del. Apr. 16, 1997).
5
See Guy v. State, 82 A.2d 710, 712 (Del. 2013).
3