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 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, Martin Fountain, filed this appeal from the Superior 

Court’s order, dated March 28, 2014, denying 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 Fountain’s opening brief that his appeal is without 

merit. We agree and affirm. 

(2) A Superior Court jury convicted Fountain in March 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 sentence 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 offense under this 

chapter ... the minimum term of imprisonment shall be 30 years and 

the maximum term for such conviction shall be 99 years and 15 years 

of such minimum term shall be a mandatory minimum term of 

imprisonment and shall not be subject to suspension and no person 

shall be eligible for probation or parole during such portion of such 

minimum term.1

 

Subsection (d) of § 4751 itself also contained a provision increasing the mandatory 

minimum sentence under that section if the defendant was not an addict.2

(3) Following a presentence investigation, the Superior Court sentenced 

Fountain to serve a total period of 103 years at Level V incarceration, to be 

suspended after serving thirty years and nine months in prison for decreasing levels 

of supervision. This Court affirmed Fountain’s convictions and sentences on direct 

appeal.3

 Thereafter, Fountain moved for postconviction relief, 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 first 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 under 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 motion 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 which 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 the 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 illegal under Alleyne v. United 

States.

7

 In Alleyne, the United States Supreme Court held that any fact that 

increases the mandatory minimum sentence for a crime 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 three parts. First, Fountain 

asserts that his sentence is illegal because the State was required to prove to a jury 

that he was a non-addict in order for him to receive 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 mandatory minimum sentence of 15 

years under § 4763(a)(3). Finally, Fountain asserts that his case is not a simple 

enhanced sentencing based on a prior conviction. Instead, Fountain contends that 

§ 4763(a)(3) so greatly increased the sentencing range 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 his initial argument, 

Fountain concedes that this Court previously held in Campbell v. State8 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 that 

the defendant had been convicted of an offense under 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) (holding that 

House Bill 201, which reduced the 15-year minimum mandatory prison term under 

§ 4763(a)(3), applied only to offenses committed after June 30, 2003, the date the 

bill was passed, and was not retroactively applicable). 

10 Campbell v. State, 2004 WL 1535805, *1 (Del. June 18, 2004). 
5

time.11 Fountain was convicted and sentenced as a subsequent offender under 

§ 4763(a)(3), which did not require proof that he was 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 illegal because the State 

was required to prove his prior conviction to a jury. 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 beyond 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 determine 

for itself that a defendant was previously convicted 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 based on his prior conviction but 

essentially changed the crime for which he was charged 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 Delivery of Cocaine. In any 

event, as indicated, Apprendi does not require a second jury to make a finding that 

Fountain had been convicted validly on a prior occasion. 

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) (rejecting 

defendant’s contention that, under Apprendi, his prior conviction for DUI had to be 

proven to a jury because the fact of his prior conviction changed a misdemeanor 

offense into a felony).