IN THE SUPREME COURT OF THE STATE OF DELAWARE

VICTOR HACKETT
, § § No. 707 , 2014 Defendant Below, § Appellant, § Court Below

— Superior Court § the State of Delaware in and for

v. § New Castle County § S TATE OF DELAWARE
, § Cr. ID No. 0609019128 § P laintiff Below, § Appellee. §

Submitted: May 8, 2015 Decided: July 21 , 201 5

Before HOLLAND
, VALIHURA and VAUGHN
, Justices.

O R D E R

This 21 st day of July 2015
, having considered the parties’ briefs on appeal
and the Superior Court record, it appears to the Court that:
(1) T he appellant, Victor Hackett, filed this appeal from the Superior

Court ’s order dated December 9, 2014 denying his motion for correction of

se ntence under Superior Court Criminal Rule 35(a) (“Rule 35(a)”)

. T he Court

concludes that the judgment must be reversed and this matter remanded for further
proceedings.
(2) The record reflects that Hackett entered a guilty plea in December

2006 to one count of Possession with Intent to Deliver Cocaine (“PWIDC”).
Hackett agreed to be sentenced as a habitual offender under 11 Del. C. § 4214(a)2

(“Section 4214(a)”)

. 1 A sentence imposed under Section 4214(a) must “not be less
than the statutory maximum penalty” for the offense and must be “served in its
entirety at a full custodial Level V .” 2 A sentence under Section 4214(a) cannot be
suspended. 3

(3) When pleading guilty, Hackett acknowledged that the Superior Court
was required to impose no fewer than fifteen years at Level V, the statutory

maximum for PWIDC

. In exchange for the plea, State agreed to drop other
charges and to recommend that the Superior Court impose no more than fifteen
years at Level V.
( 4 ) On February 16, 2007, the Superior Court se ntenced Hackett to fifteen

years of Level V incarceration u nder Section 4214(a) (hereinafter “the Sentence”)

. When doing so, the Superior Court imposed twenty years at Level V suspended

after fi fteen years for five years at Level IV halfway house in

- patient substance

abuse treatment suspended after nine months for eighteen months at Level III
probation. Hackett did not appeal the Sentence.

1 11 Del. C. § 4214(a)

2 Id.

3 Id.3

( 5 ) Between March 2007 and June 2014, Hackett filed a series of

unsuccessful motions for correction or reduct ion of sentence. 4 On May 7, 2010,

the Superior Court modified the Sentence to give Hackett thirteen days of credit

time.
( 6 ) In November 2014, Hackett filed a motion for correction of sentence
under Rule 35(a) . Hackett claimed that the suspended portion of the Sentence

violated Section 4214(a) , and he asked the Superior Court to correct the S entence
and impose fifteen years at Level V with “nothing to follow.” T he Superior Court

construed the motion as a motion for reduction of sentence under Superior Court

Criminal Rule 35(b) (“Rule 35(b)”) and denied the motion as repetitive and
untimely filed

. 5 T his appeal followed.
( 7 ) On appeal, t he parties agree that the Superior Court abused its

discretion when it construed Hackett’s sentence correction motion as a motion for

reduction of sentence and denied the motion as repetitive and untimely

. Also, t he
parties agree that the suspended portion of the Sentence violates Section 4214(a)

and should be corrected

. The parties disagree how the Sentence sho uld be

corrected.

4 In the one instance when Hackett appealed the denial of a Rule 35(a) motion, this Court affirmed the Superior Court’s judgment. Hackett v. State , 2008 WL 2192164 (Del. May 28, 2008).

5 Del. Super. Ct. Crim. R. 35(b). Under Rule 35(b), a motion for reduc tion of sentence must be filed within ninety days of the imposition of sentence. The court will not consider repetitive requests for reduction of sentence.4

( 8 ) Hackett argues that the Sentence should be corrected to remove the
five years at Level V that were suspended for Levels IV and III. According to
Hackett, when he has fully served fifteen years at Level V, he is entitled to be

release d from the sentence with “nothing to follow

. ” T he State argues that a

fifteen

- year sentence at Level V followed by no transition period would violate the
requirements of 11 Del. C. § 4204(l) (“Section 4204(l)”)

. 6 T he State recommends

that Hackett should be re sentenced to fifteen years at Level V under Section
4214(a) followed by nine months at Level IV halfway house in

- patient substance

abuse treatment and eighteen months at Level III probation under Section 4204(l).
( 9 ) T he Court agrees with the parties that the Superior Court abused its

discretion when it denied Hackett’s sentence correction motion as untimely and
repetitive under Rule 35(b). An illegal sentence can be corrected “at any time.” 7

Also, t he Court agree s that the suspended portion of the Sentence is in violation of
Section 4214(a) and must be corrected
, and that the corrected sentence must

include a transition period under Section 4204(l)

. 8

(1 0 ) When the Superior Court imposes a sentence consisting of Le vel V
time with decreasing levels of supervision, each component of the sentence is

6 See 11 Del. C. § 4204(l) (requiring that a Level V sentence of one year or more must include a tr ansition period at either Level IV, III or II for a period of not less than six months).

7 Del. Super. Ct. Crim. R. 35(a).

8 Nave v. State , 783 A.2d 120, 122 (Del. 2001) (“The need for transition from prison back to society is even more apparent in the case of a habitual offender.”).5

integral to the overall sentencing plan. 9 “The interpretation of a sentence order
should, whenever possible, give effect to the Superior Court’s intent.” 10 In this

case, t he Court agrees that a corrected sentence imposing fifteen years at Level V
under Section 4214(a) followed by nine months at Level IV halfway house in

patient substance abuse treatment and eighteen months at Level III probation

would be consistent with the original sentenc ing plan and comply with Section

42 14(a) and Section 4204(l)

. (1 1 ) The Court will vacate the Sentence and direct the Superior Court to
conduct a new sentencing proceeding. Hackett and his defense counsel should

receive notice of and attend the proceeding

. 11

NOW, THEREFORE, IT IS ORDERED that t h e Superior Court judgment
on appeal is REVERSED . The sentence imposed on February 16 , 2 007 and
modified on May 7, 2010 is VACATED . T his matter is REMANDED to the
Superior Court for further proceedings con s istent with this Order. Jurisdiction is

not retained.

BY THE COURT:

/s/ Karen L. Valihura Justice

9 Defoe v. State , 750 A.2d 1200, 1202 (Del. 2000).

10 Green v. State , 2010 WL 2278251, at *2 (Del. June 7, 2010) (citing Nave v. State , 783 A.2d 120, 123 (Del. 2001) )

. 11 Jones v. State , 672 A.2d 554, 556 (Del. 1996).