IN THE SUPREME COURT OF THE STATE OF DELAWARE

BEN ROTEN,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Plaintiff Below,

Appellee.

§

§ 

§ No. 493, 2018

§

§ Court Below—Superior Court

§ of the State of Delaware

§ 

§ Cr. ID No. 0907011738

§

§

§

Submitted: March 28, 2019

Decided: April 3, 2019

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices

O R D E R

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

affirm, the supplemental submissions, and the record on appeal, the Court concludes

that:

(1) The pro se appellant, Ben Roten, filed this appeal from the Superior 

Court’s denial of his second motion for correction of an illegal sentence under 

Superior Court Criminal Rule 35(a). The State has filed a motion to affirm the 

judgment below under Supreme Court Rule 25(a). We agree that the appeal is 

without merit and affirm.

(2) The record reflects that in January 2010 a Superior Court jury convicted 

Roten of one count of Assault in a Detention Facility. The State moved to declare 
2

Roten a habitual offender under 11 Del. C. § 4214(a). On February 19, 2010, the 

Superior Court granted that motion and sentenced Roten to imprisonment at Level 

V supervision for twenty-five years, to be followed by six months of Level IV work 

release. On direct appeal, Roten argued, among other issues, that the State had failed 

to establish the requisite prior convictions to qualify Roten as a habitual offender. 

This Court affirmed Roten’s conviction and sentence on direct appeal.1

(3) In August 2018, Roten filed a motion for correction of illegal sentence, 

which the Superior Court denied. Roten has appealed to this Court. He contends 

that his North Carolina conviction for the offense of Felonious Larceny does not 

constitute a predicate felony under the habitual offender statute.2

(4) The circumstances in which the Superior Court will change a sentence 

under Rule 35(a) are narrow.3 Rule 35(a) permits relief when the sentence imposed 

exceeds the statutorily-authorized limits or violates the Double Jeopardy Clause.

4

 

Roten does not, and could not, argue that his sentence exceeds the legal limits or 

violates double jeopardy principles. As a habitual offender, Roten was eligible by 

 

1 Roten v. State, 2010 WL 3860663 (Del. Oct. 4, 2010).

2

In addition to several motions for postconviction relief or sentence modification, Roten 

previously filed a motion for correction of illegal sentence in which he challenged his sentencing 

as a habitual offender on the basis that, among other arguments, his prior convictions were not 

predicate felonies under the habitual offender statute. The Superior Court denied that motion, and 

this Court affirmed. Roten v. State, 2012 WL 3096659 (Del. July 30, 2012).

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

4

Id.
3

statute for a sentence of up to life imprisonment.5 But the Superior Court sentenced 

him to twenty-five years’ imprisonment, the maximum term of incarceration that 

would be allowed for his conviction of Assault in a Detention Facility, whether or 

not he was a habitual offender.

6

 His sentence therefore did not exceed the statutory 

limits, even if he were erroneously declared to be a habitual offender.

(5) In any event, the Superior Court did not err by declaring Roten to be a 

habitual offender under Section 4214(a). The version of Section 4214(a) that was in 

effect at the time of Roten’s sentencing provided that if a defendant “has been 3

times convicted of a felony . . . under the laws of this State, and/or any other state, 

United States or any territory of the United States, and who shall thereafter be 

convicted of a subsequent felony of this State is declared to be an habitual criminal,

and the court in which such 4th or subsequent conviction is had, in imposing 

sentence, may in its discretion impose a sentence of up to life imprisonment upon 

the person so convicted.”7

(6) Roten contends that his 1998 conviction in North Carolina for 

Felonious Larceny does not qualify as a predicate felony under Section 4214(a).8 

 

5

11 Del. C. § 4214(a).

6

See 11 Del. C. § 4205(b)(2) (providing the sentencing range of two to twenty-five years at Level 

V for a class B felony); 11 Del. C. § 1254(b) (providing that Assault in a Detention Facility is a 

Class B felony if the victim is seriously physically injured).

7

11 Del. C. § 4214(a) (eff. July 12, 2004 through June 29, 2010).

8 Roten does not argue that the other predicate offenses on which the State relied in seeking to 

have him declared a habitual offender—including his conviction in 2004 in Delaware for Assault
4

Under the applicable version of Section 4214(a), Felonious Larceny conviction 

constituted a predicate offense if it was a conviction of “a felony . . . under the laws 

of . . . any other state.”9 The record reveals that, in addition to the predicate offenses 

that Roten does not challenge, Roten was convicted of larceny of goods with a value 

of $1,200, a Class H felony under North Carolina law.10 Roten therefore undeniably 

had been convicted of three prior felonies,

11 and the Superior Court correctly 

declared Roten to be a habitual offender.

(7) Roten’s sentence was within statutory limits whether or not he was 

correctly declared to be a habitual offender, and the Superior Court did not err by 

declaring Roten to be a habitual offender. Accordingly, we find no error in the 

Superior Court’s denial of the motion for correction of sentence.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior 

Court is AFFIRMED.

BY THE COURT:

/s/ Leo E. Strine, Jr.

Chief Justice 

 

First Degree and his 1998 conviction in North Carolina of Felonious Breaking and Entering—do 

not qualify as predicate felonies. 

9

11 Del. C. § 4214(a) (eff. July 12, 2004 through June 29, 2010).

10 N.C. GEN. STAT. ANN. § 14-72(a).

11 Cf. Ayala v. State, 2019 WL 508797, at *10 (Del. Feb. 11, 2019) (applying the language of 

Section 4214 in the context of prior convictions for Delaware offenses that were no longer felonies 

under Delaware law at the time of the offense for which the State sought to declare the defendant 

a habitual offender).