IN THE SUPREME COURT OF THE STATE OF DELAWARE

DAVID C. DAVIS,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Plaintiff Below,

Appellee.

§

§

§ No. 578, 2015

§

§ Court Below—Superior Court

§ of the State of Delaware

§ 

§ Cr. ID No. 1212002650

§ 

§

 

Submitted: December 14, 2015

Decided: January 28, 2016

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

O R D E R

This 28th day of January 2016, upon consideration of the appellant’s opening 

brief, the State’s motion to affirm, and the record below, it appears to the Court 

that:

(1) The appellant, David C. Davis, filed this appeal from the Superior 

Court’s denial of his motion for correction of sentence. The State of Delaware has 

filed a motion to affirm the judgment below on the ground that it is manifest on the 

face of Davis’ opening brief that his appeal is without merit. We agree and affirm. 

(2) The record reflects that, on March 20, 2014, Davis pled guilty to 

Terroristic Threatening in the First Degree and Arson in the Third Degree. As part 

of the plea agreement, Davis agreed that he was eligible for habitual offender 
2

sentencing under 11 Del. C. § 4214(a). The State indicated that it would seek 

habitual offender sentencing for the Terroristic Threatening in the First Degree 

charge. 

(3) On March 25, 2014, the State filed a motion to declare Davis an

habitual offender under 11 Del. C. § 4214(a). The Superior Court declared Davis 

an habitual offender on June 6, 2014. Davis was sentenced as follows: (i) for 

Reckless Endangering in the First Degree, as an habitual offender, ten years of 

Level V incarceration; (ii) for Arson in the Third Degree, one year of Level V 

incarceration, suspended for 1 one year of Level IV at the Department of 

Correction’s discretion, suspended after six months for six months of Level III 

probation. Davis did not appeal the Superior Courts judgment. Instead, Davis 

filed unsuccessful motions for reduction of sentence, postconviction relief under 

Superior Court Criminal Rule 61, and sentencing transcripts, discovery, and police 

reports. 

(4) On September 21, 2015, Davis filed a motion for correction of 

sentence. The Superior Court denied the motion, concluding that the sentence was 

imposed under a plea agreement, the motion was untimely and there were no 

extraordinary circumstances supporting consideration of the motion, the motion 

was repetitive, the sentence was appropriate for all of the reasons stated at the time 

of sentencing, and Davis had an extensive criminal history. This appeal followed. 
3

On appeal, Davis requested the indictment, discovery, and sentencing transcript at 

State expense. The Superior Court denied Davis’ request.

(5) In his opening brief, Davis contends that: (i) the Superior Court erred 

in treating his motion for correction of sentence like a motion under Rule 35(b) 

instead of Rule 35(a); (ii) his sentence is illegal because it includes probation and 

no probation can be imposed under 11 Del. C. § 4214; (iii) there are double 

jeopardy violations; (iv) he did not receive a proper habitual offender hearing 

under 11 Del. C. § 4214; (v) the Superior Court failed to state its reasons for 

deviating from the guidelines in the Delaware Sentencing Accountability 

Commission Benchbook (“SENTAC Guidelines”); (vi) he should have been 

provided with treatment; and (vii) the Superior Court erred in denying his request 

for his indictment, discovery, and sentencing transcript. 

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

sentence for abuse of discretion.1

 To the extent the claim involves a question of 

law, we review the claim de novo.2

 A motion to correct an illegal sentence under 

Rule 35(a) may be filed at any time.3

 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 

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

2 Id.

3 Super. Ct. R. 35(a).
4

imposed by statute, is uncertain as to the substance of the sentence, or is a sentence 

that the judgment of conviction did not authorize.4

 A motion to correct a sentence 

imposed in an illegal manner or a motion for reduction of sentence filed more than 

ninety days after imposition of the sentence will be considered only in 

extraordinary circumstances or if the Department of Correction files an application 

under 11 Del. C. § 4217.5

 

(7) Only two of Davis’ claims—that his sentence is illegal because it 

includes probation in violation of 11 Del. C. § 4214 and because it violates double 

jeopardy—implicate Rule 35(a) and did not have to be filed within ninety days of 

the imposition of Davis’ sentence. Both of these claims are without merit. First, 

Davis was not sentenced as an habitual offender for Arson in the Third Degree, 

which is the sentence that included probation. Second, Davis’ knowing and 

voluntary guilty plea waives any claim of a double jeopardy violation.

6

(8) Davis’ claims regarding his habitual offender hearing and the 

Superior Court’s deviation from SENTAC Guidelines relate to the manner in 

which his sentence was imposed. Absent extraordinary circumstances or an 

application by the Department of Correction under 11 Del. C. § 4217, the Superior 

Court will not consider a motion for correction of a sentence imposed in an illegal 

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

5 Super. Ct. Crim. R. 35(a), (b).

6 Lanzo v. State, 2015 WL 5120872, at *1 (Del. Aug. 22, 2013); Bowers v. State, 2007 WL 

2359553, at *1 (Del. Aug. 20, 2007).
5

manner filed more than ninety days after imposition of the sentence.7 Davis filed 

his motion for correction of sentence more than ninety days after the imposition of 

his sentence. Davis has not shown any extraordinary circumstances warranting 

consideration of his untimely motion for correction of sentence. The record 

reflects that Davis agreed he was eligible for habitual offender sentencing as part

of his guilty plea and that the sentencing judge was concerned by Davis’ lengthy 

criminal history and limited remorse. No application was filed by the Department 

of Correction under 11 Del. C. § 4217. 

(9) As to Davis’ claim that he should have received treatment as part of 

his sentence, this claim is contrary to the terms of his sentence. As part of his 

sentence, Davis must complete an anger management treatment program, receive a 

mental health evaluation and follow any recommendations for counseling and 

treatment, and receive a substance abuse evaluation and follow any 

recommendations for treatment, counseling, and screening. To the extent Davis is 

claiming he should have received treatment as part of his sentences in different 

criminal proceedings, that claim is outside the scope of this appeal. 

(10) Finally, the Superior Court did not err in denying Davis’ request for 

his indictment, sentencing transcript, and discovery at State expense. Davis claims 

that he needs these documents in order to raise claims of ineffective assistance of 

 7 See supra ¶ 6.
6

counsel, determine whether there was a proper habitual offender hearing, and 

review whether his charges were legal. This claim is without merit. 

(11) The proper procedural vehicle for an ineffective assistance of counsel 

claim is Rule 61, not Rule 35.8

 Davis filed a motion for correction of sentence 

under Rule 35, not a motion for postconviction relief under Rule 61. Davis’ 

attacks on his charges are also outside the scope of Rule 35(a).9

 As previously 

discussed, Davis’ claim regarding the habitual offender hearing was untimely.10 

Thus, none of the documents sought by Davis were necessary for his motion for 

correction of sentence and the Superior Court did not err in denying Davis’ motion 

for these documents. 

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

and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Collins J. Seitz, Jr.

Justice

 8 Cochran v. State, 2007 WL 28182870, *2 (Del. Sept. 28, 2007); Glenn v. State, 2003 WL 

21714083, at *1 (Del. July 21, 2003).

9 Brittingham v. State, 705 A.2d at 578.

10 See supra ¶ 10.