Whittle v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE DAVEAR WHITTLE, §

§ No. 141, 2022 Defendant Below, § Appellant, § Court Below—Superior Court

§ of the State of Delaware v. §

§ Cr. ID No. 1111010324 (N) STATE OF DELAWARE, §

§

Appellee. §

Submitted: June 22, 2022 Decided: August 12, 2022

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

ORDER

Upon consideration of the appellant’s opening brief, the appellee’s motion to affirm, and the record below, it appears to the Court that:

(1) The appellant, Davear Whittle, filed this appeal from the Superior Court’s denial of a motion for correction of illegal sentence. The State has moved to affirm the judgment below on the ground that it is manifest on the face of Whittle’s opening brief that his appeal is without merit. We agree and affirm.

(2) In 2012, a Superior Court jury found Whittle guilty of second-degree murder, first-degree reckless endangering, possession of a firearm by a person prohibited, and possession of a firearm during the commission of a felony (“PFDCF”). This Court reversed the conviction on appeal and remanded for a new trial.1 In November 2014, Whittle pleaded guilty to manslaughter and PFDCF. The Superior Court sentenced Whittle as follows: for manslaughter, to twenty-five years of imprisonment, suspended after twenty years for decreasing levels of supervision, and for PFDCF, to five years of imprisonment, as a minimum mandatory term under 11 Del. C. § 1447A.

(3) Whittle filed two unsuccessful motions seeking postconviction relief under Superior Court Criminal Rule 612 and an unsuccessful petition for federal habeas corpus relief.3 Whittle then filed a motion seeking correction of an illegal sentence under Superior Court Criminal Rule 35(a). The Superior Court denied that motion, and Whittle has appealed to this Court.

(4) We review the denial of a motion for correction of sentence under Rule 35(a) for abuse of discretion.4 To the extent the claim involves a question of law, we review the claim de novo.5 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 imposed by statute, is uncertain as to its substance, or is a sentence that the judgment of conviction did not authorize.6

(5) We find no merit to Whittle’s arguments on appeal. First, Whittle argues that the Superior Court judge who presided over his plea hearing and sentencing should have recused himself because, before becoming a judge, he was a prosecutor in the Delaware Department of Justice “when Appellant was being prosecuted on another offense years before.”7 Whittle contends that his concern about the purported conflict caused him to plead guilty in violation of his right to have a final say in plea decisions and that the sentence imposed by the purportedly conflicted judge constitutes “unusual” punishment under the Eighth Amendment. Whittle unsuccessfully asserted his claim of judicial bias in his postconviction proceedings,8 and he cannot use a motion under Rule 35(a) to relitigate that issue. 9

(6) Second, Whittle argues that his sentence is illegal because it exceeded the recommended sentence to which Whittle and the State agreed in the plea agreement. He also argues that the sentence exceeded the guidelines adopted by the Sentencing Accountability Commission (“SENTAC”). These claims also provide no basis for relief. The sentence imposed for each of Whittle’s offenses is within the statutory maximum for manslaughter and PFDCF, each of which is a class B felony,10 and is not illegal. The truth-in-sentencing guilty plea form correctly stated the maximum statutory penalty for each offense. Although the State agreed to recommend a lower sentence than what the Superior Court ultimately imposed, it is well-established that the Superior Court is not bound by a prosecutor’s sentencing recommendation or the SENTAC guidelines.11

NOW, THEREFORE, IT IS ORDERED that the Motion to Affirm is GRANTED and the judgment of the Superior Court is AFFIRMED.

BY THE COURT: /s/ James T. Vaughn, Jr. Justice litigate previously decided issues by changing the number of the Superior Court rule under which he seeks postconviction relief”).