IN THE SUPREME COURT OF THE STATE OF DELAWARE ANZARA M. BROWN, Defendant Below, Appellant,

v. STATE OF DELAWARE, Plaintiff Below, Appellee. § § No. 455, 2019 § § § § Court Below–Superior Court § of the State of Delaware § § Cr. ID No. 1205025968A (K) § § Submitted: December 2, 2019 Decided: February 7, 2020

Before SEITZ , Chief Justice; TRAYNOR , and MONTGOMERY-REEVES , Justices. ORDER After careful consideration of the appe llant’s opening brief, the State’s motion to affirm, and the record on app eal, it appears to the Court that: (1) The appellant, Anzara Brown, app eals the Superior Court’s order dated October 18, 2019, which denied his moti on for correction of sentence filed under Superior Court Criminal Rule 35(a) (“Rule 35(a)”). The State has moved to affirm the judgment below on the ground that it is manifest on the face of Brown’s opening brief that his appeal is without merit. We ag ree and affirm. (2) In September 2013, a Superior Court jury found Brown guilty of possession of marijuana, drug dealing, aggravated possession of a controlled2 substance, carrying a concealed deadly weapon, possession of a deadly weapon during the commission of a felony, sec ond degree conspiracy, and second degree criminal solicitation. The Superior Cour t deferred sentencing, pending a presentence investigation. Prior to sentencing, the St ate filed a motion to have Brown declared

an habitual offender under 11 Del. C. § 4214(b) (“§ 4214(b)”). On October 29, 2013, the Superior Court granted the State’s mo tion and sentenced Brown as follows: (i) as an habitual offender under § 4214(b) to two life sentences for the charges of drug dealing and aggravated possession; (ii) as an habitual offender under 11 Del. C. § 4214(a) (“§ 4214(a)”) to twenty-seven years of Level V incarceration for the weapons offenses; (iii) to two years of Leve l V incarceration, suspended for one year of Level II probation for second degree conspiracy; and (iv) to six months of Level V incarceration, suspended for one year of Level II probati on for possession of marijuana. 1 On December 16, 2014, the Superi or Court corrected the sentencing order to reflect the fact that the drug dealing and aggravated possession offenses merged for sentencing purpose s. This Court affirmed Brown’s convictions and sentence on direct appeal. 2 (3) On October 2, 2019, Brown filed a motion for correction of sentence. Brown argued that (i) his sentence unde r § 4214(b) was improper because he should

1 At sentencing, the Superior Court merged the criminal solicitation and conspiracy offenses. 2 Brown v. State , 117 A.3d 568 (Del. 2015).3 have been sentenced under § 4214(a) and (ii) his life sentence as a “non-king-pin drug dealer” constituted crue l and unusual punishment. Th e Superior Court denied

the motion on the basis that Brown’s senten ce was appropriate for all the reasons stated at the time of sentencing and no ad ditional information had been provided to

the court that would warrant a reduction or modification of the sentence. This appeal

followed. (4) On appeal, Brown argues that (i) the Superior Court was required to sentence him in accordance with § 4214(a ) because he admitte d he was eligible under § 4214(a) in 2006 when he pleaded guilty to possession with intent to

distribute cocaine in a different criminal case; (ii) the Superior Court erred by not conducting a separate hearing to determine the existence of three prior predicate felony convictions; and (iii) his sentence constitutes cruel and unusual punishment. Brown’s arguments are unavailing. (5) We review the denial of a motion for correction of 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 st atutory limits, violates double jeopardy, is ambiguous with respect to the time and manner in which it is to be served, is

3 Fountain v. State , 2014 WL 4102069, at *1 (Del. Aug. 19, 2014). 4 Id.4 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 (6) Although it appears that the Superi or Court mistakenly treated Brown’s

motion as a motion for modification of sent ence filed under Rule 35(b), rather than

a motion for correction of sentence under Rule 35(a), we nonetheless affirm the Superior Court’s denial of Brown’s mo tion on the independent and alternative ground that it lacked merit under Rule 35(a). 6 (7) In a prior unrelated case, Brown pl eaded guilty to possession with intent to deliver cocaine in March 2006. As part of the plea agreement, (i) the State nolle prosequied the remaining nine charges against Brown, (ii) the parties asked for immediate sentencing, (iii) the parties requested that the minimum mandatory sentence of three years of Level V in carceration be imposed, and (iv) Brown

admitted that he was an habitual offender as defined by § 4214(a). The Superior Court accepted the plea and se ntenced Brown to three years of Level V incarceration. The sentencing order notes that Brown admits he is an habitual offender under § 4214(a). Brown did not appeal his convic tion or sentence. Brown now argues that the court was obligated to sentence him as an habitual offender under § 4214(a) in

5 Brittingham v. State , 705 A.2d 577, 578 (Del. 1998). 6 See Unitrin, Inc. v. American Gen. Corp. , 651 A.2d 1361, 1390 (Del. 1995) (noting that the Delaware Supreme Court may affirm a trial cour t’s judgment for reasons different than those articulated by the trial court).5 2013. Brown is incorrect. Brown, by ad mitting he was an habitual offender under § 4214(a), arguably relieved the State of its burden of proof to ha ve him declared an

habitual offender under that subsection for any future felony conviction. But the

State elected to initiate the habitual offender status process under § 4214(b) following Brown’s 2013 jury trial. Accordin gly, the State filed with the court its motion to declare Brown an habitual offender—as required by 11 Del. C. § 4215(b)—together with documentary evid ence in the form of certified court records of Brown’s prior predicate convictions. 7 Brown’s 2013 conviction for drug dealing was an enumerated triggering felony in the version of § 4214(b) in effect at

the time. 8 Once the State met its burden an d established beyond a reasonable doubt

that Brown had been convicted of tw o enumerated predicate felonies under § 4214(b), the court was bound to sentence him to life under that subsection. 9 (8) Brown next argues that he was entitle d to a separate hearing to establish the existence of his predicate felonies. Because Brown did not raise this argument

7 See Hall v. State , 788 A.2d 118, 128 (Del. 2001) (“We hold that the State need offer only unambiguous documentary evidence of a prior pred icate conviction, not live witnesses, and not a particular or exclusive type of documentary evidence. Once the State has offered evidence of the prior conviction that is regular on its face, the St ate has met its burden of establishing a prima facie case.”). 8 Brown’s conviction for aggravated possession wa s also an enumerated triggering felony under § 4214(b) but, as previously noted, that offens e merged with Brown’s drug dealing offense. See Ayers v. State , 97 A.3d 1037, 1041 (Del. 2014). 9 Reeder v. State , 2001 WL 355732, at *3 (Mar. 26, 2001) (“Simply put, the General Assembly, in enacting § 4214, limited the Superior Court’s sentenci ng discretion once the Stat e properly initiates the habitual offender status process.”).6 below, we will not ordinari ly entertain it on appeal. 10 In any event, Brown’s contention is unavailing. Although it is uncle ar whether he believe s the court should have held a separate heari ng in 2006 or 2013, it is clear that Brown has long since waived any challenge he c ould have raised with re spect to his completed 2006 sentence. As for Brown’s 2013 sentence, Brown raised no objection to the Superior Court sentencing him on the same day it c onsidered the State’s habitual offender motion, nor did he file a timely motion fo r the correction of a sentence imposed in an illegal manner within ninety days of the imposition of the sentence. 11 Accordingly, Brown may not object to cour t’s failure to hold a separate hearing on

the State’s motion to declare hi m an habitual offender now. (9) Finally, Brown contends that hi s sentence is an unconstitutionally disproportionate sentence in violation of the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution. There is no dispute that Brown was eligible to be sentenced as an habitual offender. At the sentencing hearing, Brown’s couns el acknowledged, and the Superior Court

10 Del. Supr. Ct. R. 8 (“Only questions fairly pr esented to the trial court may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any questi on not so presented.”); Delaware Elec. Coop., Inc. v. Duphily , 703 A.2d 1202, 1206 (Del. 1997) (“It is a basic tenet of appella te practice that an appellate court reviews only matters considered in the first instance by a trial court. Parties are not free to advance arguments for the first time on appeal.”). 11 See Walley v. State , 2007 WL 135615, at *1 (Del. Jan. 11, 2007) (holding that a challenge to the timing of the habitual offender status hearing was, in fact, a motion for the correction of a sentence imposed in an illegal manner that was required to be filed within ninety days of sentencing under Rule 35).7 found on the basis of the record before it, that Brown had four se parate prior felony convictions, two of which were enumerated predicate felonies under the version of § 4214(b) then in effect. Because Brown wa s convicted of drug dealing, the Superior Court was required under that version of the habitual o ffender statute—a version we repeatedly upheld as constitutional—to sentence Brown to a life term. 12 Likewise, the court was obligated to sentence Brown under § 4214(a) on the felony weapons offenses. In short, Brown’s sentence is not illegal. NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT: /s/ Collins J. Seitz, Jr. Chief Justice

12 In 2013, 11 Del. C. § 4214(b) provided, “Any person who has been 2 times convicted of a felony or an attempt to commit a felony hereinafter specifically named... and w ho shall ther eafter be convicted of a subsequent felony hereinafter specifically named... is declared to be an habitual criminal, and the court in which such third or su bsequent conviction is had, in imposing sentence, shall impose a life sentence upon the person so convicted....” The enumerated felonies included (i) Brown’s prior predicate feloni es of delivery of a narcotic Sc hedule II controlled substance and possession with intent to distribut e a narcotic Schedule II controll ed substance; and (ii) Brown’s triggering felony of drug dealing.