Cohee v. State

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

DANIEL COHEE, § § Defendant Below- § No. 256, 2016 Appellant, § § v. § Court Below—Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID 1004008353 Plaintiff Below- § Appellee. §

Submitted: September 27, 2016 Decided: November 14, 2016

Before VALIHURA, VAUGHN, and SEITZ Justices.

ORDER

This 14th day of November 2016, upon consideration of the

appellant’s opening brief, the State’s motion to affirm, and the record on

appeal, it appears to the Court that:

(1) The appellant, Daniel Cohee, filed this appeal from the Superior

Court’s order, dated April 29, 2016, denying Cohee’s motion for correction

of an illegal 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 Cohee’s

opening brief that the appeal is without merit. We agree and affirm.

(2) Cohee pled guilty in September 2010 to one count each of

Carjacking in the First Degree, Disregarding a Police Officer’s Signal, and Possession of a Deadly Weapon by a Person Prohibited. The Superior Court

sentenced Cohee on all three charges to a total period of nine years at Level

V incarceration, to be suspended after serving three years in prison for two

years at decreasing levels of supervision. Cohee did not appeal. In February

2013, Cohee was found in violation of his probation and sentenced to four

years and three months at Level V incarceration, to be suspended upon

Cohee’s successful completion of drug treatment for decreasing levels of

supervision. Cohee did not appeal that judgment. In April 2016, Cohee

filed a motion for correction of sentence, claiming that his VOP sentence

was illegal. The Superior Court denied his motion. This appeal followed.

(3) Cohee argues in his opening brief that his VOP sentence is

illegal because it violated the SENTAC guidelines. Cohee also argues that

his due process rights were violated at his 2013 VOP hearing because he was

denied the opportunity to be heard and to present evidence in his own

defense.

(4) We find no merit to Cohee’s appeal. A motion for correction of

sentence is very narrow in scope.1 It is not a means to challenge the legality

of a conviction or to raise allegations of error occurring in the proceedings

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

2 before the imposition of sentence.2 Thus, we reject Cohee’s attempt to

collaterally attack the validity of his VOP adjudication.

(5) Superior Court Criminal Rule 35(a) permits relief when “the

sentence imposed exceeds the statutorily-authorized limits, [or] violates the

Double Jeopardy Clause.”3 A sentence also is illegal if it “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 the substance of the sentence, or is a sentence which the judgment of

conviction did not authorize.”4

(6) In sentencing a defendant for a VOP, the trial court is

authorized to impose any period of incarceration up to and including the

balance of the Level V time remaining to be served on the original

sentence.5 In this case, the Superior Court reimposed the Level V time

remaining from Cohee’s original Carjacking sentence, but ordered it to be

suspended upon Cohee’s successful completion of a treatment program for

decreasing levels of supervision. Under the circumstances, the sentence was

authorized by law, was neither arbitrary nor excessive, and does not reflect

2 Id. 3 Id. (quoting United States v. Pavlico, 961 F.2d 440, 443 (4th Cir. 1992)). 4 Id. (quoting United States v. Dougherty, 106 F.3d 1514, 1515 (10th Cir. 1997)). 5 11 Del C. § 4334(c) (2015).

3 any evidence of a closed mind by the sentencing judge. We find no merit to

Cohee’s appeal.

NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

BY THE COURT:

/s/ James T. Vaughn, Jr. Justice