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 O n 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

O n 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, t he State filed a Motion to Declare Andre Grinnage

a Habitual Offender

. 5 O n O ctober 21, 2011 , t he Court granted the motion 6 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, suspend ed 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, t he first count of Second Degree Burglary has a mandatory 8

- year term of incarceration

. See 11 Del. C. § 4214(a ) (2011 ) ; 11 Del. C. § 420 5 (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 con tends that the p lea a greement s 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 re asons, his enhanced

sentence as a habitual offender is illegal.

(5) Under Superior Court Criminal Rule 35(a), t he 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 s tates that plea agreement s 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. 3 5(a).
16 Brittingham v. State , 705 A.2d 577, 578 (Del. 1998) (quoting Hill v. United States , 3 6 8 U.S. 424, 430 (1962)).
17 Id.4

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

proceedings

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

claim fails

. Even if the Court could reexamine th e plea agreements underlying the

predicate convictions , the claim would fail because those plea agreements express ly

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

(7) Furthermore, to the extent Defendant claims that the p lea a greement 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)

Mo tion 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.