IN THE SUPREME COURT OF THE STATE OF DELAWARE

WILLIAM BURROWS , Defendant Below

– Appellant,

v. STATE OF DELAWARE , Plaintiff Below

– Appellee. § § No. 101, 2019 § § Court Below

– Superior Court § of the State of Delaware § § Cr. No. 150700892 4 (N) § § § §
Submitted: May 17 , 201 9 Decided: July 8 , 201 9
Before STRINE , Chief Justice; VALIHURA and TRAYNOR , Justices

. O R DER
U pon 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, William Burrows , appeal s the Superior Court’s denial of
his motion for correction of sentence

. The State has moved to affirm the Superior Court’s judgment on the ground that it is manifest on the face of Burrows’ opening
brief t hat his appeal is without merit. We agree and affirm. (2) The record reflects that Burrows pled guilty to one count of sexual
solicitation of a child and one count of rape in the fourth degree on March 7 , 20 16

. Following a presentence investigation, t he Superior Court sentenced Burrows to an2

aggregate of forty years of Level V incarceration, suspended after fifteen years for decreasing levels of supervision

. Burrows did not appeal. (3) On July 18, 2016 , Burrows filed a motion for modification of sentence under Superior Court Criminal Rule 35(b) . The Superior Court denied the motion , noting that i t considered Burrows’ convictions far too serious to warrant a sentence
modification. Burrows did not appeal

. (4) On February 12, 2019, Burrows filed a motion to correct an illegal

sentence under Superior Court Criminal Rule 35(a)

. The Superior Cour t denied the motion, finding that the motion was time

- barred b ecause it was filed more than ninety days after the imposition of the sentence; the sentence remained appr opriate for the reasons stated at sentencing and no modification or reduction thereof was
warranted ; and that the sentence, while in excess of the range established by the
Delaware Sentencing Accountability Commission (“SENTAC”) , was nonetheless
authorized by law

. This appeal followed. (5) We review the denial of a motion for correction of sentence for abuse
of discretion. 1 To the extent a claim involves a question of law, we review the claim
de novo

. 2 A sentence is illegal if it exceeds statutory limits, violates double jeopardy, is ambiguous with respect to the time and manner in which it is to be served, is

1 Fountain v. State , 2014 WL 4102069, at *1 (Del. Aug. 19, 2014). 2 Id.3

internally contradictory, omits a term required to be imposed by statute, is uncertain

as to its substance, or is a sentence that the judgment of conviction did not authorize. 3 On appeal, Burrows argues his sentence is illegal because it impermissibly exceeded
the SENTAC guidelines and because it violated double jeopardy principles. (6) Although the Superior Court considered Burrows’ motion as a motion

to modify under Superior Court Criminal Rule 35(b ) , 4 the Superior Court addressed
Burrows’ argument that his sentence i s illegal and rejected it. We agree
. Burrows contends the Superior Court should have sentenced him within the SENTAC guidelines because he admitted guilt, showed remorse, and had no prior criminal history. But i t is established Delaware law that a defendant has no legal or constitutional right to appeal a sentence authorized by statute simply because it does not conform to the sentencing guidelines established by SENTAC

. 5 Generally, appellate review of a sentence ends upon a determination that the sentence fell within the statutory limits specified by the General Assembly. 6 Here , Burrows pled guilty

to one count of sexual solicitation of a child, a Class B felony 7 for which the statutory

3 Brittingham v. State , 705 A.2d 577, 578 (Del. 1998). 4 Burrows filed his motion as a motion for correction of illegal sentence under Rule 35(a). A motion for correction of illegal sentence may be filed at any time and is not subject to the ninety

day limitation period of Rule 35(b). 5 Mayes v. State , 604 A.2d 839, 845 (Del. 1992). 6 Id. 7 11 Del. C. § 1112A(h) (“Sexual solicitation of a child is a class B felony if the defendant meets in person or attempts to meet in person with the child for the purpose of engaging in a prohibited sexual act.”)

.4

maximum sentence wa s twenty

- five years of Level V incarceration 8 and one count of fourth degree rape, a class C felony 9 for whic h the statutory maximum sentence

wa s fifteen years of Level V incarceration. 10 Because Burrows’ sentence does not exceed forty years of Level V incarceration, w e find no merit to Burrows’ contention that the Superior Court imposed an illegal sentence

. (7) Burrows ’ argument

— raised for the first time on appeal

— that his sentence violated double jeopardy principles is also unavailing

. Because Burrows
did not present this argument below, this Court ordinarily will not entertain it. 11
Nevertheless , there is no s ubstantive merit to Burrows’ double jeopardy argument

. Double jeopardy “protects defendants ‘against multiple punishments for the same
offense.’” 12 That is, double jeopardy prohibits the State from punishing the
defendant twice for the same conduct

— the sa me offense. To determine if “ the re are two offenses or only one,” this Court asks, “whether each [offense] requires proof
of a fact which the other does not.” 13 Under that test, Burrows’ argument fails
because sexual solicitation of a child and rape in the fourth degree are separate and

8 11 Del. C. § 4205(b)(2). 9 11 Del. C. § 770. 10 11 De l. C. § 4205(b)(3). 11 Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any question not so presented .”). 12 Parker v. State , 201 A.3d 1181, 1184 (Del. 2019) (quoting Poteat v. State , 840 A.2d 559, 603 (Del. 2003)). 13 Blockburger v. United States , 284 U.S. 229, 304 (1932).5

distinct crimes; they have different elements , punish different criminal conduct , and a defendant can commit one without necessarily committing the other

. 14 That is
what occurred here. Burrows committed sexual solicitation of a child by using an electronic device to ask a child to engage in a prohibited act. 15 That offense was completed before he later sexually penetrated the child. 16 The fact that the two are
connected

— i.e. , the solici tation was used to place the child in a situation where Burrows could sexually penetrate her

— does not mean they are the same offense. The Superior Court’s imposition of a separate punishment for each crime thus did not violate principles of double jeopard y. 17
N OW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice

14 Compare 11 Del. C. § 1112A (establishing that “[a] person is guilty of sexual solicitation of a child if the person, being 18 years of age or older, intentionally or knowingly: (1) Solicits, requests, commands, importunes or otherwise attempts to cause any child to engage in a prohibited sexual act; or (2) Uses a computer, cellular telephone or other electronic device to communicate with another person, including a child, to solicit, request, command, importune, entice, encourage or otherwise attempt to cause a child to engage in a prohibited sexual act.”), with id. § 770(a) (establi shing that “[a] person is guilty of rape in the fourth degree when the person: (1) Intentionally engages in sexual intercourse with another person, and the victim has not yet reached that victim’s sixteenth birthday . . .”). 15 Exhibit B to State’s Motion to Affirm (May 17, 2019). 16 Id

. 17 Cooper v. State , 2019 WL 494139, at *2 (Del. Feb. 7, 2019).