IN THE SUPREME COURT OF THE STATE OF DELAWARE 

WARREN D. WILSON, 

 

Defendant Below, 

Appellant, 

v. 

STATE OF DELAWARE, 

Appellee.

§ 

§ No. 472, 2023 

§ 

§ Court Below–Superior Court 

§ of the State of Delaware 

§ 

§ Cr. ID No. 2104016453 (K) 

§ 

§ 

§ 

 Submitted: February 23, 2024 

 Decided: April 8, 2024 

Before SEITZ, Chief Justice; VALIHURA and GRIFFITHS, Justices. 

ORDER 

After consideration of the appellant’s opening brief, the appellee’s motion to 

affirm, and the record below, it appears to the Court that: 

(1) The appellant, Warren D. Wilson, filed this appeal from the Superior 

Court’s November 27, 2023 order denying his motion for correction of an illegal 

sentence. The State has moved to affirm the conviction below but laudably concedes 

that the Level V portion of Wilson’s sentence for resisting arrest exceeds the 

statutory maximum penalty. We agree and, accordingly, decline Wilson’s invitation 

to vacate his conviction for resisting arrest but remand the matter to the Superior 

Court to issue a modified sentencing order. 
2 

(2) On March 30, 2022, Wilson pleaded guilty to one count of felony 

resisting arrest, a class G felony, and one count of driving under the influence of 

drugs. The Superior Court immediately sentenced Wilson as follows: for resisting 

arrest, to three years of incarceration, suspended for one year of Level II probation; 

and for driving under the influence, to one year of incarceration, suspended for one 

year of Level II probation. Wilson did not appeal his convictions or sentence. 

(3) On May 27, 2022, the Superior Court found that Wilson had violated 

the terms of his probation and sentenced him as follows: for resisting arrest, to three 

years of incarceration, suspended after one year and the successful completion of a 

Level V treatment program followed by decreasing levels of supervision; and for 

driving under the influence, to one year of incarceration, suspended after one year 

of Level III probation.1 Wilson did not appeal. 

(4) Between August 2022 and September 2023, Wilson filed four motions 

for sentence modification or review, all of which were denied. In September 2023, 

Wilson filed a motion for correction of illegal sentence under Superior Court 

Criminal Rule 35(a), arguing that the Level V portion of his sentence for resisting 

arrest exceeds the statutory maximum term of two years. The Superior Court denied 

the motion as an impermissible repetitive motion for sentence modification. Wilson 

did not appeal. 

1

 The Superior Court also discharged Wilson from probation as unimproved in an unrelated case. 
3 

(5) On November 27, 2023, Wilson filed another motion for correction of 

illegal sentence, again arguing that the Level V portion of his sentence for resisting 

arrest exceeds the statutory maximum term of two years. The Superior Court denied 

the motion, finding that (i) it was an impermissible repetitive request for sentence 

modification, (ii) Wilson was not amenable to probation at this time, and (iii) the 

sentence remains appropriate for the reasons stated at sentencing. This appeal 

followed. 

(6) In his opening brief on appeal, Wilson argues, as he did below, that his 

sentence for resisting arrest exceeds the statutory maximum penalty of two years for 

a class G felony,2 and that his conviction must therefore be vacated. 

(7) We review the denial of a motion for correction of illegal sentence for 

abuse of discretion.3 To the extent a claim involves a question of law, we review the 

claim de novo.

4

 A sentence is illegal if it exceeds statutory limits, violates the 

Double Jeopardy Clause, 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 its substance, or is a sentence that the judgment of 

conviction did not authorize.5

2 See 11 Del. C. § 1257(a) (“Resisting arrest with force or violence is a class G felony.”); id. § 

4205(b)(7) (limiting the term of incarceration for a class G felony to two years). 

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

4

Id.

5 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998). 
4 

(8) As the State concedes, Wilson’s sentence for resisting arrest exceeds 

statutory limits and must be corrected. However, Wilson’s argument that his 

conviction must be vacated is without merit. A Rule 35(a) motion presupposes the 

existence of a valid conviction and is not a means to mount a collateral attack on the 

underlying conviction.6 Accordingly, the appropriate remedy is to remand this 

matter to the Superior Court for the issuance of a new sentencing order that reduces 

the Level V portion of Wilson’s sentence for resisting arrest sentence to two years. 

NOW, THEREFORE, IT IS ORDERED that the matter is hereby 

REMANDED to the Superior Court with directions to enter a modified sentencing 

order in accordance with this Order. Jurisdiction is not retained. 

BY THE COURT: 

/s/ Collins J. Seitz, Jr. 

 Chief Justice 

6

Id.