IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

)

v. ) ID No. 1011015425

)

ANDRE N. GRINNAGE, )

)

Defendant. )

Date Submitted: September 15, 2022

Date Decided: November 22, 2022

ORDER

Upon consideration of Defendant’s Pro Se Motion for Correction of an Illegal

Sentence (“Rule 35(a) Motion”), Superior Court Criminal Rule 35(a), statutory and 

decisional law, and the record, IT APPEARS THAT:

(1) Defendant pled guilty to two counts of Burglary Second Degree 

pursuant to a Plea Agreement on July 25, 2011.1 The Plea Agreement accepted and 

signed by the Defendant states that the State intended to move for Defendant to be 

declared a habitual offender under 11 Del. C. § 4214(a) on one of the Burglary 

Second Degree charges.

2

 On both the Plea Agreement and the Truth-in-Sentencing 

Guilty Plea Form, and during the Plea Colloquy, Defendant acknowledged that he 

was subject to a mandatory minimum sentence of eight years for that charge, and 

1 D.I. 25. 

2

Id. 
2

subject to a total mandatory minimum sentence of eleven years for the two offenses.

3

 

On the Truth-in-Sentencing Guilty Plea Form, Defendant acknowledged that, by not 

going to trial, he was waiving his constitutional rights, including the right to appeal 

to the Delaware Supreme Court with the assistance of a lawyer if convicted.4 

(2) Prior to sentencing, the State filed a Motion to Declare Andre Grinnage

a Habitual Offender.

5 On October 21, 2011, the Court granted the motion6

and

sentenced Defendant as follows: for Burglary Second Degree, IN11-01-1065 (“First 

Burglary”), 8 years at Level V; for Burglary Second Degree, IN11-01-1068 

(“Second Burglary”), 6 years at Level V, suspended after 3 years for decreasing 

levels of supervision.

7

 

(3) Since sentencing, the Defendant has filed numerous pro se motions, 8

all of which the Court has denied.

9

(4) Defendant filed the instant Rule 35(a) Motion on September 15, 2022.10 

He claims his enhanced sentence as a habitual offender is illegal because the plea 

3

Id.

4

Id.

5 D.I. 27. The State’s Motion to Declare Andre Grinnage a Habitual Offender was supported by 

proof of Defendant’s three prior felony convictions, which qualified Defendant for habitual 

offender status under 11 Del. C. § 4214(a) (2011). Id. 

6 D.I. 29. 

7 D.I. 30. Because Defendant was declared a habitual offender, the first count of Second Degree 

Burglary has a mandatory 8-year term of incarceration. See 11 Del. C. § 4214(a) (2011); 11 Del. 

C. § 4205(b)(4); 11 Del. C. § 825(a).

8 D.I. 31; D.I. 33; D.I. 35.

9 D.I. 32; D.I. 34; D.I. 36. 

10 D.I. 38.
3

agreements from the predicate convictions underlying his habitual offender status

were defective.

11

 Specifically, Defendant contends that the plea agreements violated

his constitutional right to Due Process because they failed to advise him that he was 

waiving the right to appeal with the assistance of counsel.

12

 Defendant argues that 

there is no record he was advised of that right, which he says is “the determining 

factor” in the decision to plead guilty.13 He alleges that because he did not 

intentionally relinquish that right, the plea agreements from the predicate 

convictions were defective.14 Because of this, Defendant reasons, his enhanced 

sentence as a habitual offender is illegal. 

(5) Under Superior Court Criminal Rule 35(a), the Court may correct an 

illegal sentence at any time.15 Rule 35(a) serves a “narrow function” that is limited 

to correcting illegal sentences.

16

 It is not a mechanism for re-examining errors 

occurring in other proceedings.17 

(6) The nature of Defendant’s claim, which attacks the validity of plea 

11 Id. Defendant states that “[t]he plea forms used at the time of all [p]lea [a]greements in question 

illustrate a defect that disqualifies their use in [h]abitual [o]ffender pr[o]ceedings.” Id.

12 Id. Defendant states that plea agreements used prior to April 9, 2008 did not advise defendants 

that by pleading guilty, they were waiving the right to appeal with assistance of counsel. Id. 

Defendant’s motion focuses on the “assistance of counsel” language, however the prior plea 

agreements correctly advised defendants that by pleading guilty, they were waiving their right to 

appeal.

13 Id. 

14 Id. (citing McCarthy v. U.S., 394 U.S. 459, 466 (1969)). 

15 Super. Ct. Crim. R. 35(a).

16 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998) (quoting Hill v. United States, 368 U.S. 

424, 430 (1962)). 

17 Id. 
4

agreements from prior felony convictions, would require the Court to examine other 

proceedings. Because this is outside the narrow function of Rule 35(a), Defendant’s 

claim fails. Even if the Court could reexamine the plea agreements underlying the 

predicate convictions, the claim would fail because those plea agreements expressly

state that by pleading guilty, defendants waive their right to appeal.

(7) Furthermore, to the extent Defendant claims that the plea agreement he 

entered into on July 25, 2011 (the agreement relevant to this case) violated Due 

Process, that claim is without merit. Defendant was advised that by pleading guilty 

he was waiving his right to appeal with the assistance of counsel. This is expressly

stated on the Truth-in-Sentencing Guilty Plea Form, and was stated in the plea 

colloquy.

18

 Defendant waived that right, pled guilty, and was subsequently properly 

sentenced as a habitual offender.19 Defendant’s sentence is not illegal.

NOW THEREFORE, for the foregoing reasons, Defendant’s Rule 35(a) 

Motion for Correction of an Illegal Sentence is DENIED.

/s/ Jan R. Jurden

Jan. R. Jurden, President Judge

Original to Prothonotary

cc: Joseph Grubb, DAG

Andre N. Grinnage (SBI # 00239576)

18 D.I. 25. 

19 D.I. 25; D.I. 30.