IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANTHONY NASH,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Plaintiff Below,

Appellee.

§

§

§ No. 167, 2017

§

§ Court Below—Superior Court

§ of the State of Delaware

§ 

§ Cr. ID No. 14050028328 (N)

§ 

§

§ 

 Submitted: April 25, 2017

 Decided: June 26, 2017

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

O R D E R

This 26th day of June 2017, upon 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, Anthony Nash, filed this appeal from the Superior 

Court’s denial of his motion for correction of an illegal sentence under Rule 35(a). 

The State of Delaware has filed a motion to affirm the judgment below on the ground 

that it is manifest on the face of Nash’s opening brief that his appeal is without merit. 

We agree and affirm. 

(2) In July 2014, Nash was indicted for Robbery in the First Degree and 

Wearing a Disguise During the Commission of a Felony. On December 17, 2014, 
2

Nash pled guilty to Robbery in the Second Degree as a lesser included offense of 

Robbery in the First Degree and Wearing a Disguise During the Commission of a 

Felony. The plea agreement indicated that Nash was habitual offender eligible under 

11 Del. C. § 4214(a) and that sentencing was deferred so the State could file a motion 

to declare Nash a habitual offender under 11 Del. C. § 4214(a). 

(3) On March 23, 2015, the State filed a motion to declare Nash a habitual 

offender Section 4214(a). One of the predicate felonies was a 2000 Florida 

conviction for two counts of Aggravated Assault on a Law Enforcement Officer. 

The Superior Court granted the State’s motion on March 27, 2015. The Superior 

Court sentenced Nash as follows: (i) for Robbery in the Second Degree, under 

Section 4214(a), six years of Level V incarceration; and (ii) for Wearing a Disguise 

During the Commission of a Felony, five years of Level V incarceration, suspended 

for decreasing levels of supervision. Nash did not file a direct appeal.

(4) On August 1, 2016, Nash filed his first motion for postconviction relief 

under Rule 61. Nash argued his counsel was ineffective for failing to object to the 

State’s motion to declare him a habitual offender because the Florida conviction had 

been vacated. The Superior Court summarily dismissed Nash’s motion as timebarred under Rule 61(i)(1) and indicated that Nash could raise his argument 

regarding the Florida conviction under Rule 35. 
3

(5) On September 16, 2016, Nash filed a motion for correction of illegal 

sentence under Rule 35(a). Nash argued that his Florida conviction was vacated and 

could not qualify as a predicate offense under Section 4214 and that the Florida 

resentencing papers submitted with the State’s habitual offender petition were not 

certified. With the motion, Nash submitted an affidavit from his mother stating 

Nash’s Florida counsel told her that Nash’s Florida conviction was vacated and 

could not be used for habitual offender status in Delaware. Nash also provided a 

copy of the Florida judgment with a handwritten note stating “judgment & sentence 

of 10-24-00 set aside & vacated per motion to reconsider sent.” The same document 

had appeared in the State’s habitual offender petition, along with the motion to 

reconsider sentence filed by Nash’s Florida counsel. 

(6) At the request of the Superior Court, both Nash’s former Delaware 

counsel and the State responded to Nash’s motion. They stated that the Florida 

paperwork reflected Nash’s Florida sentence was reduced as he had requested, but 

his Florida convictions were not vacated. In an order dated March 28, 2017, the 

Superior Court denied Nash’s motion for correction of illegal sentence. The 

Superior Court concluded the motion was untimely, the Florida conviction was not 

vacated, and Nash’s Delaware sentence was legal. This appeal followed.
4

(7) We review the Superior Court’s denial of a motion for correction of 

sentence for abuse of discretion, although questions of law are reviewed de novo.

1

 

A motion to correct an illegal sentence under Rule 35(a) may be filed at any time.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 

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

as to the substance of the sentence, or is a sentence that the judgment of conviction 

did not authorize.3 

(8) Even assuming Nash challenges the legality of his sentence rather than 

the manner in which it was imposed,

4 we conclude that the Superior Court did not 

err in determining Nash’s sentence was legal. The Florida documents (which were 

certified, some on the back of the page, contrary to Nash’s contention) reflect that: 

(i) Nash pled guilty to two counts of Aggravated Assault on a Law Enforcement 

Officer on October 9, 2000; (ii) Nash was sentenced as a youthful offender to 

concurrent sentences of four years incarceration, suspended after three years for one 

year of probation; (iii) Nash filed a motion, on November 4, 2000, to reconsider 

sentence in light of his recent malignant lymphoma diagnosis; and (iv) a judgment 

 

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

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

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

4 A timely motion to correct a sentence imposed in an illegal manner must be filed within ninety 

days of sentencing. Super Ct. Crim. 35(a); Super. Ct. Crim. 35(b).
5

was filed on April 20, 2001 with a handwritten note stating “judgment & sentence 

of 10-24-00 set aside & vacated per motion to reconsider sent” and reflecting that 

the Florida court placed Nash under the supervision of the Department of 

Corrections for one year of Level 1 community control, followed by two years of 

probation. The April 2001 judgment reflects a new sentence for Nash’s convictions, 

not that Nash’s convictions were vacated. This is consistent with the fact that Nash’s 

motion to reconsider requested modification of his sentence due to his illness, not 

that his convictions be vacated. 

NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED 

and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Leo E. Strine, Jr.

Chief Justice