IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARTIN E. FOUNTAIN, Defendant-Below, Appellant,

v. STATE OF DELAWARE, Plaintiff-Below, Appellee. § § No. 201, 2014 § § § § Court Below: Superior Court § of the State of Delaware, § in and for Kent County § Cr. ID 0209005515 § § Submitted: June 10, 2014 Decided: August 19, 2014 Before STRINE , Chief Justice, HOLLAND , and RIDGELY , Justices. O R D E R This 19th day of August 2014, upon consideration o f the appellant’s opening brief, the State’s motion to affirm, and the record below, it appears to the Court that: (1) The appellant, Martin Fountain, filed this appe al from the Superior Court’s order, dated March 28, 2014, denying his mo tion for correction of sentence. The State filed a motion to affirm the j udgment below on the ground that it is manifest on the face of Fountain’s opening br ief that his appeal is without merit. We agree and affirm. (2) A Superior Court jury convicted Fountain in Mar ch 2003 of nine criminal offenses, including two counts of Delivery of Cocaine under 16 Del. C.2

§ 4751. Fountain had been convicted before for an offense under Chapter 16. At the time Fountain was convicted in March 2003, 16 Del. C. § 4763(a)(3) contained a provision enhancing the mandatory minimum sentenc e for violation of § 4751 for defendants who had previously been convicted of an offense under Chapter 16: In any prosecution for violation of § 4751 or 4761( a)(1) where a defendant has previously been convicted of any offe nse under this chapter ... the minimum term of imprisonment shall be 30 years and the maximum term for such conviction shall be 99 ye ars and 15 years of such minimum term shall be a mandatory minimum t erm of imprisonment and shall not be subject to suspension and no person shall be eligible for probation or parole during su ch portion of such minimum term. 1 Subsection (d) of § 4751 itself also contained a pr ovision increasing the mandatory minimum sentence under that section if the defendan t was not an addict. 2 (3) Following a presentence investigation, the Supe rior Court sentenced Fountain to serve a total period of 103 years at Le vel V incarceration, to be suspended after serving thirty years and nine month s in prison for decreasing levels of supervision. This Court affirmed Fountain’s con victions and sentences on direct appeal. 3 Thereafter, Fountain moved for postconviction rel ief, which the Superior Court denied. We affirmed that denial on appeal. 4 In September 2013, Fountain

1 16 Del. C. 4763(a). 2 16 Del. C. 4751(d) (increasing the mandatory minimum sentence for a defendant determined to be a non-addict to 6 years for the fi rst violation and 12 years for the second or subsequent violation of this section). 3 Fountain v. State , 2004 WL 1965196 (Del. Aug. 18, 2004). 4 Fountain v. State , 2009 WL 189888 (Del. Jan. 12, 2009).3

filed a motion for correction of illegal sentence u nder Superior Court Criminal Rule 35(a). The Superior Court denied his motion. This appeal followed. (4) We review the Superior Court’s denial of a moti on for correction of sentence under Rule 35(a) for abuse of discretion, although questions of law are reviewed de novo

. 5 Relief under Rule 35(a) is available when the sentence imposed exceeds the statutorily authorized limits, violates double jeopardy, is ambiguous with respect to the time and manner in wh ich it is to be served, is internally contradictory, omits a term required to be imposed by statute, is uncertain as to substance, or is a sentence that th e judgment of conviction did not authorize. 6 (5) In this case, Fountain argues that both of his 15-year mandatory minimum sentences for Delivery of Cocaine are illeg al under Alleyne v. United
States

. 7 In Alleyne , the United States Supreme Court held that any fac t that increases the mandatory minimum sentence for a crim e is an element of the crime, not just a sentencing factor, and must be submitted to a jury and proven beyond a reasonable doubt. Fountain’s argument contains thr ee parts. First, Fountain asserts that his sentence is illegal because the St ate was required to prove to a jury that he was a non-addict in order for him to receiv e a mandatory minimum

5 Williams v. State , 2012 WL 4663065, *1 (Del. Oct. 2, 2012). 6 Brittingham v. State , 705 A.2d 577, 578 (Del. 1998). 7 133 U.S. 2151 (2013).4

sentence of 15 years for Delivery of Cocaine under § 4751(d). Because Fountain contends that proof of non-addiction is a fact that increases the statutory minimum penalty, he argues that under Alleyne , a jury was required to find him a non-addict. Second, Fountain contends that his sentence is also illegal under Alleyne because the State was required to prove to the jury that he had a prior conviction of an offense under Chapter 16 for him to receive a manda tory minimum sentence of 15 years under § 4763(a)(3). Finally, Fountain assert s that his case is not a simple enhanced sentencing based on a prior conviction. I nstead, Fountain contends that § 4763(a)(3) so greatly increased the sentencing ra nge for his offense, that his offense was reclassified de facto to a more serious level felony. (6) We find no merit to these contentions. As to h is initial argument, Fountain concedes that this Court previously held i n Campbell v. State 8 that, for offenses committed on or before June 30, 2003, 9 the Delaware criminal statutes provided for two alternative sentencing enhancement schemes for any defendant convicted under § 4751. 10 The State could either establish under § 4751(d) that the defendant was a non-addict or under § 4763(a)(3) the State could demonstrate tha t the defendant had been convicted of an offense unde r Chapter 16 for the second

8 2004 WL 1535805 (Del. June 18, 2004). 9 See Seeney v. State , 2004 WL 2297394, *1 n.3 (Del. Oct. 4, 2004) (hold ing that House Bill 201, which reduced the 15-year minimum m andatory prison term under § 4763(a)(3), applied only to offenses committed af ter June 30, 2003, the date the bill was passed, and was not retroactively applicab le). 10 Campbell v. State , 2004 WL 1535805, *1 (Del. June 18, 2004).5

time. 11 Fountain was convicted and sentenced as a subsequ ent offender under § 4763(a)(3), which did not require proof that he w as a non-addict. Fountain was not sentenced under § 4751(d), which hinges on non- addict status. Because his sentence did not turn in any way on whether he was a non-addict under § 4751(d), Fountain’s argument is based on a factual error and has no merit. And, notwithstanding Fountain’s argument to the contrary , we find no basis to overturn our decision in Campbell

. (7) Next, Fountain argues that his sentence is ille gal because the State was required to prove his prior conviction to a jur y. But, in Apprendi v. New Jersey , the United States Supreme Court specifically held that, “[ o ] ther than the fact of a prior conviction , any fact that increases the penalty for a crime b eyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 12 Thus, we have held that, under Apprendi , a defendant’s prior criminal record does not have to be submitted to a jury and proven beyond a reasonable doubt. 13 Apprendi sensibly does not require a second jury to determi ne for itself that a defendant was previously convicte d of an offense that increases the statutory maximum. Instead, the official record of that prior valid conviction is sufficient.

11 Id

. 12 Apprendi v. New Jersey , 530 U.S. 466, 490 (2000) (emphasis added). 13 Johnson v. State , 2008 WL 5191835, *1 (Del. Dec. 11, 2008).6

(8) Lastly, Fountain’s attempt to distinguish Apprendi by contending that § 4763(a)(3) did not merely enhance his sentence ba sed on his prior conviction but essentially changed the crime for which he was char ged into a more serious level felony is unpersuasive. The increase in punishment level because of a prior offense does not change Fountain’s convictions for Delivery of Cocaine into convictions for a different offense. 14 Rather, the prior conviction is solely a fact that increased the mandatory minimum sentence for D elivery of Cocaine. In any event, as indicated, Apprendi does not require a second jury to make a finding th at Fountain had been convicted validly on a prior occa sion. NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice

14 See Talley v. State , 2003 WL 23104202, *2 (Del. Dec. 29, 2003) (reject ing defendant’s contention that, under Apprendi , his prior conviction for DUI had to be proven to a jury because the fact of his prior conv iction changed a misdemeanor offense into a felony).