Wisher v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DAYMERE WISHER, §
§
Defendant Below, § No. 140, 2022
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID Nos. 1406017459 (N) and
§ 1508021812 (N)
Appellee. §
Submitted: October 27, 2022
Decided: December 21, 2022
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
ORDER
Upon consideration of the appellant’s opening brief, the appellee’s motion to
affirm, and the record below, it appears to the Court that:
(1) The appellant, Daymere Wisher, filed this appeal from a Superior Court
order denying his motion for review of sentence. The State of Delaware has filed a
motion to affirm the judgment below on the ground that it is manifest on the face of
Wisher’s opening brief that his appeal is without merit. We agree and affirm.
(2) In November 2014, a grand jury charged Wisher with first-degree
murder and other crimes in Criminal ID No. 1406017459. While Wisher was
participating in a program to restore his competency, a grand jury charged him with
first-degree murder and other crimes in Criminal ID No. 1508021812. After the
Superior Court found Wisher competent, he resolved both cases by pleading guilty
to second-degree murder in Criminal ID No. 1406017459 and manslaughter,
attempted first-degree robbery, and second-degree conspiracy in Criminal ID No.
1508021812. The State agreed to cap its sentencing recommendation to thirty years
of Level V incarceration.
(3) Following a presentence investigation, the Superior Court sentenced
Wisher as follows: (i) for second-degree murder, fifteen years of Level V
incarceration; (ii) for manslaughter, five years of Level V incarceration; (iii) for
attempted first-degree robbery, fifteen years of Level V incarceration, suspended
after five years for decreasing levels of supervision; and (iv) for second-degree
conspiracy, two years of Level V incarceration, suspended for Level III probation.
Wisher did not appeal. In August 2020, Wisher filed a motion for sentence
reduction, which the Superior Court denied.
(4) In December 2021, Wisher filed a motion for sentence review. The
Superior Court denied the motion, finding Wisher’s sentence was fair and reasonable
based on the facts of the case. This appeal followed.
(5) In his opening brief, Wisher argues that the defense of extreme
emotional distress, the underdeveloped nature of his brain as a juvenile offender, and
his trial counsel’s ineffective assistance constitute extraordinary circumstances
under Rule 35(b). We review the Superior Court’s denial of a motion for sentence
2
reduction for abuse of discretion.1 To the extent the claim involves a question of law,
we review the claim de novo.2 Rule 35(b) provides that a motion for sentence
reduction that is not filed within ninety days of sentencing will only be considered
in extraordinary circumstances or under 11 Del. C. § 4217. Rule 35(b) also provides
that the Superior Court will not consider repetitive motions for sentence reduction.
(6) As an initial matter, we note that the Superior Court could not reduce
twenty years of Wisher’s unsuspended twenty-five year Level V sentence. Twenty
of those twenty-five years reflected the minimum mandatory sentences for second-
degree murder,3 manslaughter,4 and attempted first-degree robbery.5 Absent an
appropriate application from the Department of Correction under Section 4217, the
Superior Court cannot reduce a minimum mandatory sentence under Rule 35(b).6
(7) In any event, the Superior Court did not err in denying Wisher’s motion.
1
State v. Culp, 152 A.3d 141, 144 (Del. 2016).
2
Id.3
11 Del. C. § 635 (classifying second-degree murder as a class A felony); 11 Del C. § 4205(b)(1)
(providing that the sentence for a class A felony is not less than fifteen years up to life
imprisonment)
4
11 Del. C. § 632 (classifying manslaughter as a class A felony); 11 Del C. § 4205(b)(2) (providing
that the sentence for a class B felony is not less than two years up to twenty-five years of
imprisonment).
5
11 Del. C. § 832 (classifying first-degree robbery as a class B felony and providing that first-
degree robbery and attempted first-degree robbery are subject to a minimum sentence of three
years at Level V).
6
State v. Sturgis, 947 A.2d 1087, 1093 (Del. 2008). Under Rule 35A and § 4204A, the Superior
Court may modify the minimum mandatory sentence of an offender who was sentenced for crimes
he committed before turning eighteen, but the offender must first serve twenty years of the
originally imposed Level V sentence.
3
Wisher’s invocation of an extreme emotional distress defense and reliance on brain
development research in cases where juveniles were sentenced to death or life
imprisonment did not establish extraordinary circumstances under Rule 35(b) or
provide a basis for reduction of his sentence.7 As to Wisher’s claims concerning his
mental health issues and disabilities, the Superior Court took those issues into
account in sentencing him to less than the thirty years of non-suspended Level V
time requested by the State. Finally, the proper vehicle for an ineffective assistance
of counsel claim is a motion for postconviction relief under Superior Court Criminal
Rule 61, not a motion for sentence reduction under Rule 35(b).8
NOW, THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
7
See, e.g., Johnson v. State, 2015 WL 1880412, at *1 (Del. Apr. 21, 2015) (holding defendant
who relied on cases in which the United States Supreme Court held juveniles could not be
sentenced to death penalty or mandatory life imprisonment without parole did not establish
extraordinary sentences as the defendant was nineteen at the time of his crimes and was not
sentenced to life imprisonment without parole).
8
Palmer v. State, 2020 WL 4275604, at *1 (Del. July 23, 2020).
4