IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

) I.D. No: 1708003010

v. )

)

MCGREGOR J. BERNADIN

, )

Defendant. )

Submitted: September 2 2 , 2022

Decided: October 24 , 2022

ORDER DENYING DEFENDANT’S MOTION

TO CORRECT AN ILLEGAL SENTENCE

AND NOW, this 24 th day of October, 2022, upon careful consideration of

McGregor J. Bernadin ’s (“ Defendant ”) Motion to Correct an Illegal Sentence

pursuant to Superior Court Criminal Rule 35(a), the sentence imposed upon

Defendant

, and the record in this case, it appears to the c ourt that:

1. On August 5, 2017, Defendant was arrested and charged with r obbery

in the first degree and c onspiracy in the second degree

. He ple ade d guilty on January

3, 2018, to r obbery in the second degree and the State entered a nolle prosequi on

the remaining charges

. Defendant was sentenced to five years supervision L evel V

with credit for eight days previously served

, suspended for eighteen months

supervision Level III

.

2. On March 14, 2019, this court found d efendant in violation of his

probation and sentenced him to four years eight months supervision Level V

,suspended after serving three months supervision Level V for one year supervision

Level III

.

3. This court again found Defendant in violation of probation on

September 2, 2021, and sentenced him to four years three months supervis ion Level

V , suspended for six months supervision Level III with GPS monitoring.

4. On May 27, 2022, this court found Defendant in violation of his

probation for the third time and sentenced him to three years eight months

supervision Level V , suspended for e leven months supervision Level V

, with no

probation to follow

.

5. Defendant filed this pending Motion to Correct an Illegal Sentence on

September 22, 2022. He argues that his May 27 sentence is illegal because it (1)

exceeds the statutory limits; (2) violates d ouble j eopardy principles ; (3) is internally

contradictory; and (4) is one that “the judgment of conviction did not authorize.”

6. Pursuant to Superior Court Criminal Rule 35(a)

, the c ourt may correct

an illega l sentence at any time. Rule 35 is to be applied narrowly and is not intended

to provide a mechanism to re

- examine errors that occurred in trial or at other

proceedings prior to sentencing. 1 T he Rule allows for relief if the sentence imposed

exceeds the s tatutorily authorized limits, violates Double Jeopardy, is ambiguous or

1 See, e.g., Brittingham v. State , 705 A.2d 577, 578 (Del. 1998) (citation omitted).internally contradictory, or if it is one that the judgment of conviction did not

authorize. 2

7. Contrary to Defendant’s arguments, his sentence does not exceed the

statutory limits. Def

endant faced a suspended sentence of over three years of Level

V time . I sentence d him to eleven months, which is substantially less than the

maximum sentence Defendant faced.

8. The sentence does not violate D ouble J eopardy. Defendant w as

sentenced on separate, new charges in Kent County. Defendant was still on probation

in Sussex County on the robbery second degree charge , and he received the eleven

months of Level V on that charge.

9. Defendant argue s that his sentences are internally cont radictory . It

appears that Defendant is referring to the fact that he received six months Level V

on the new charges in Kent County and a longer sentence on the violation of

probation. The sentence I imposed for the violation of probation was appropriate a nd

not contradictory

. Defendant violated his Sussex County probation when he was

arrested for felony

- level driving under the influence in Kent County

. He posted bond

on both the new charge and on the violation of probation. After he posted bond

, but

before his violation of probation could be addressed in Sussex County , he was

arrested again in Kent County after he was found with twenty

- seven pounds of

2 Id.marijuana and $52,000.00 in cash. This violation was Defendant’s third violation of

probation. He was on probation for a violent felony. He also had several curfew

violations. C onsidering all the above, I followed the probation officer ’s

recommendation and imposed an eleven

- month Level V sentence for the violation

.

10. Finally, Defendant argues 11 Del. C. § 4207 3 permits me to only impose

a fine for a violation of probation. However, t hat Code section refers to potential

sentences for the class of offenses set out in 11 Del. C. § 420 3 known as violations

—

as distinguished from misdemeanors and felonies

— not a violation of probation. For

a violation of probation, i t is well established that a court can impose any period of

incarceration up to and including the balance of the Level V time remaining on a

probationer’s sentence. 4

11. Defendant ’s sentence is not illegal for the reasons set forth above.

Therefore, Defendant’s Motion is DENIED.

IT IS SO ORDERED.

/s/ Robert H. Robinson, Jr.

Robert H. Robinson, Jr. , Judge

3 11 Del. C. § 4207 ( “ Sentence for violations. (a) The Court may impose a fine of up to $345 for the first offense of any violation, up to $690 for the second offense of that same violation and up to $1,150 for the third offense of the same violation; provided, that only violations which occurred
within 5 years of the violation for which the sentence is imposed shall be considered in determining

s entence. ” )

. 4 See 11 Del. C. § 4334(c).