IN THE SUPREME COURT OF THE STATE OF DELAWARE
GENE L. FULTON, § § Defendant Below, § No. 123, 2025 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1508009967 (N) § Appellee. §
Submitted: May 12, 2025 Decided: July 1, 2025
ORDER
Before SEITZ, Chief Justice; VALIHURA and GRIFFITHS, Justices.
Upon consideration of the parties’ briefs and the record below, it appears to the
Court that:
(1) The appellant, Gene L. Fulton, filed this appeal from a Superior Court
order denying his motion under Superior Court Rule of Criminal Procedure 35. The
State has moved to affirm the judgment below on the ground that it is manifest on
the face of Fulton’s opening brief that his appeal is without merit. We agree and
affirm.
(2) On August 13, 2015, Fulton broke into a senior citizen’s home and stole
some jewelry. A grand jury indicted him for second-degree burglary, theft from a
senior, and driving a vehicle while his license was suspended or revoked. Fulton pleaded guilty to the burglary and theft charges. In the plea agreement, Fulton
agreed that he was subject to habitual offender sentencing under 11 Del. C. § 4214(a)
and had the following prior felony convictions: second-degree burglary in
September 2004, three counts of third-degree unlawful sexual penetration in July
1992, second-degree assault in July 1992, carrying a concealed deadly weapon in
1985, escape in 1981, and second-degree robbery in January 1981. The State agreed
to cap its sentencing recommendation at twelve years. The truth-in-sentencing form
that Fulton signed on the date of his plea stated that he faced a sentence up to life
imprisonment on the second-degree burglary charge to which he was pleading guilty,
with a minimum-mandatory sentence of eight years on that charge.
(3) On March 24, 2016, the State filed a motion to declare Fulton a habitual
offender under Section 4214(a). The body of the motion identified the following
predicate felony convictions: (i) carrying a concealed deadly weapon, for which
Fulton was sentenced on January 9, 1986; (ii) second-degree assault, for which
Fulton was sentenced on September 18, 1992; (iii) three counts of third-degree
unlawful sexual intercourse, for which Fulton was sentenced on September 18,
1992;1 and (iv) second-degree burglary, for which Fulton was sentenced on
1 In that case, Fulton had been charged with four counts of third-degree unlawful sexual intercourse, among other offenses. Contrary to the statement in the body of the habitual-offender motion, in 1992 Fulton pleaded guilty to, and was sentenced for, three counts of third-degree unlawful sexual penetration, as lesser-included offenses of three of the original charges, and one count of endangering the welfare of a child. The exhibits to the habitual-offender motion demonstrated that history.
2 September 23, 2004. On April 29, 2016, the Superior Court granted the habitual-
offender motion and sentenced Fulton as follows: (i) fifteen years of imprisonment
for second-degree burglary, under Section 4214(a); and (ii) two years of
imprisonment, suspended for decreasing levels of supervision, for theft from a
senior.
(4) Fulton did not file a direct appeal. In June 2016, however, Fulton’s
counsel filed a motion for modification of sentence on his behalf. Shortly thereafter,
Fulton filed a pro se “Motion for Modification of Sentence and/or Correction of an
Illegal Sentence.” In the pro se motion that he filed in 2016, Fulton asserted, among
other things, that he told his counsel before sentencing that the habitual-offender
motion contained an error—specifically, that it said Fulton had been convicted of
three counts of third-degree unlawful sexual intercourse, although he was actually
convicted of lesser-included offenses. The Superior Court denied the motions, and
Fulton did not appeal.
(5) In June 2023, Fulton filed a pro se motion for correction of illegal
sentence. He argued that he was erroneously declared a habitual offender, and his
sentence for second-degree burglary therefore is illegal because it exceeds the
statutory maximum penalty of eight years. More specifically, Fulton contended that
the 1992 assault and sexual-penetration convictions were not separate predicate
offenses under Section 4214(a) because he was convicted and sentenced for those
3 offenses on the same date, and he argued that he was sentenced on the basis of
materially untrue information because the habitual-offender motion incorrectly
stated that he was convicted of third-degree unlawful sexual intercourse.2
(6) After filing his pro se motion, Fulton retained counsel. Counsel then
filed a ‘Motion to Correct a Sentence Imposed in an Illegal Manner and Motion to
Modify Sentence.” That motion argued, based on the error in the habitual-offender
motion as to the predicate sexual offenses, that Fulton’s sentence was imposed in an
illegal manner and that the error constituted extraordinary circumstances warranting
consideration of the motion more than ninety days after sentencing.3 After briefing,
oral argument, supplemental briefing, and review of the record—including the
transcript of the habitual-offender and sentencing proceeding—the Superior Court
denied Fulton relief under Rule 35. The court held that the sentence is not illegal
and that the error in the body of the habitual-offender motion did not warrant relief
outside the ninety-day period for seeking correction of a sentence imposed in an
illegal manner. Fulton has appealed to this Court.
(7) We review the denial of a motion under Rule 35 for abuse of discretion,
although questions of law are reviewed de novo.4 The Superior Court may correct
2 See supra note 1 & accompanying text. 3 See DEL. SUPER. CT. R. CRIM. PROC. 35(a), (b) (providing that in extraordinary circumstances the court may correct a sentence imposed in an illegal manner more than ninety days after the sentence is imposed). 4 Gladden v. State, 2020 WL 773290, at *1 (Del. Feb. 17, 2020); Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
4 an illegal sentence at any time.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 Motions for relief under Rule 35 on other grounds are
subject to a ninety-day time bar, except in extraordinary circumstances.7
(8) We agree with the Superior Court’s determination that Fulton’s
sentence is not illegal. When Fulton committed the burglary for which he received
the habitual-offender sentence, Section 4214(a) provided in relevant part:
Any person who has been 3 times convicted of a felony, other than those which are specifically mentioned in subsection (b) of this section, under the laws of this State . . . and who shall thereafter be convicted of a subsequent felony of this State is declared to be an habitual criminal, and the court in which such fourth or subsequent conviction is had, in imposing sentence, may in its discretion, impose a sentence of up to life imprisonment upon the person so convicted.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
GENE L. FULTON, § § Defendant Below, § No. 123, 2025 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1508009967 (N) § Appellee. §
Submitted: May 12, 2025 Decided: July 1, 2025
ORDER
Before SEITZ, Chief Justice; VALIHURA and GRIFFITHS, Justices.
Upon consideration of the parties’ briefs and the record below, it appears to the
Court that:
(1) The appellant, Gene L. Fulton, filed this appeal from a Superior Court
order denying his motion under Superior Court Rule of Criminal Procedure 35. The
State has moved to affirm the judgment below on the ground that it is manifest on
the face of Fulton’s opening brief that his appeal is without merit. We agree and
affirm.
(2) On August 13, 2015, Fulton broke into a senior citizen’s home and stole
some jewelry. A grand jury indicted him for second-degree burglary, theft from a
senior, and driving a vehicle while his license was suspended or revoked. Fulton pleaded guilty to the burglary and theft charges. In the plea agreement, Fulton
agreed that he was subject to habitual offender sentencing under 11 Del. C. § 4214(a)
and had the following prior felony convictions: second-degree burglary in
September 2004, three counts of third-degree unlawful sexual penetration in July
1992, second-degree assault in July 1992, carrying a concealed deadly weapon in
1985, escape in 1981, and second-degree robbery in January 1981. The State agreed
to cap its sentencing recommendation at twelve years. The truth-in-sentencing form
that Fulton signed on the date of his plea stated that he faced a sentence up to life
imprisonment on the second-degree burglary charge to which he was pleading guilty,
with a minimum-mandatory sentence of eight years on that charge.
(3) On March 24, 2016, the State filed a motion to declare Fulton a habitual
offender under Section 4214(a). The body of the motion identified the following
predicate felony convictions: (i) carrying a concealed deadly weapon, for which
Fulton was sentenced on January 9, 1986; (ii) second-degree assault, for which
Fulton was sentenced on September 18, 1992; (iii) three counts of third-degree
unlawful sexual intercourse, for which Fulton was sentenced on September 18,
1992;1 and (iv) second-degree burglary, for which Fulton was sentenced on
1 In that case, Fulton had been charged with four counts of third-degree unlawful sexual intercourse, among other offenses. Contrary to the statement in the body of the habitual-offender motion, in 1992 Fulton pleaded guilty to, and was sentenced for, three counts of third-degree unlawful sexual penetration, as lesser-included offenses of three of the original charges, and one count of endangering the welfare of a child. The exhibits to the habitual-offender motion demonstrated that history.
2 September 23, 2004. On April 29, 2016, the Superior Court granted the habitual-
offender motion and sentenced Fulton as follows: (i) fifteen years of imprisonment
for second-degree burglary, under Section 4214(a); and (ii) two years of
imprisonment, suspended for decreasing levels of supervision, for theft from a
senior.
(4) Fulton did not file a direct appeal. In June 2016, however, Fulton’s
counsel filed a motion for modification of sentence on his behalf. Shortly thereafter,
Fulton filed a pro se “Motion for Modification of Sentence and/or Correction of an
Illegal Sentence.” In the pro se motion that he filed in 2016, Fulton asserted, among
other things, that he told his counsel before sentencing that the habitual-offender
motion contained an error—specifically, that it said Fulton had been convicted of
three counts of third-degree unlawful sexual intercourse, although he was actually
convicted of lesser-included offenses. The Superior Court denied the motions, and
Fulton did not appeal.
(5) In June 2023, Fulton filed a pro se motion for correction of illegal
sentence. He argued that he was erroneously declared a habitual offender, and his
sentence for second-degree burglary therefore is illegal because it exceeds the
statutory maximum penalty of eight years. More specifically, Fulton contended that
the 1992 assault and sexual-penetration convictions were not separate predicate
offenses under Section 4214(a) because he was convicted and sentenced for those
3 offenses on the same date, and he argued that he was sentenced on the basis of
materially untrue information because the habitual-offender motion incorrectly
stated that he was convicted of third-degree unlawful sexual intercourse.2
(6) After filing his pro se motion, Fulton retained counsel. Counsel then
filed a ‘Motion to Correct a Sentence Imposed in an Illegal Manner and Motion to
Modify Sentence.” That motion argued, based on the error in the habitual-offender
motion as to the predicate sexual offenses, that Fulton’s sentence was imposed in an
illegal manner and that the error constituted extraordinary circumstances warranting
consideration of the motion more than ninety days after sentencing.3 After briefing,
oral argument, supplemental briefing, and review of the record—including the
transcript of the habitual-offender and sentencing proceeding—the Superior Court
denied Fulton relief under Rule 35. The court held that the sentence is not illegal
and that the error in the body of the habitual-offender motion did not warrant relief
outside the ninety-day period for seeking correction of a sentence imposed in an
illegal manner. Fulton has appealed to this Court.
(7) We review the denial of a motion under Rule 35 for abuse of discretion,
although questions of law are reviewed de novo.4 The Superior Court may correct
2 See supra note 1 & accompanying text. 3 See DEL. SUPER. CT. R. CRIM. PROC. 35(a), (b) (providing that in extraordinary circumstances the court may correct a sentence imposed in an illegal manner more than ninety days after the sentence is imposed). 4 Gladden v. State, 2020 WL 773290, at *1 (Del. Feb. 17, 2020); Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
4 an illegal sentence at any time.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 Motions for relief under Rule 35 on other grounds are
subject to a ninety-day time bar, except in extraordinary circumstances.7
(8) We agree with the Superior Court’s determination that Fulton’s
sentence is not illegal. When Fulton committed the burglary for which he received
the habitual-offender sentence, Section 4214(a) provided in relevant part:
Any person who has been 3 times convicted of a felony, other than those which are specifically mentioned in subsection (b) of this section, under the laws of this State . . . and who shall thereafter be convicted of a subsequent felony of this State is declared to be an habitual criminal, and the court in which such fourth or subsequent conviction is had, in imposing sentence, may in its discretion, impose a sentence of up to life imprisonment upon the person so convicted. Notwithstanding any provision of this title to the contrary, any person sentenced pursuant to this subsection shall receive a minimum sentence which shall not be less than the statutory maximum penalty provided elsewhere in this title for the fourth or subsequent felony which forms the basis of the State’s petition to have the person declared to be an habitual criminal except that this minimum provision shall apply only when the fourth or subsequent felony is a Title 11 violent felony, as defined in § 4201(c) of this title.8
5 DEL. SUPER. CT. R. CRIM. PROC. 35(a). 6 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998). 7 DEL. SUPER. CT. R. CRIM. PROC. 35(a), (b). 8 11 Del. C. § 4214(a) (effective July 3, 2013, to July 18, 2016).
5 The applicable version of Section 4201(c) designated second-degree burglary as a
violent felony.9 Thus, Fulton was subject to a sentencing range of eight years to life
under Section 4214(a) if he had three prior felony convictions.10 Fulton does not
dispute that he had three separate, predicate felonies—carrying a concealed deadly
weapon, second-degree assault, and second-degree burglary—even without
considering the 1992 sexual offenses.11 Fulton’s fifteen-year sentence is not
illegal.12
(9) The mistake in the habitual-offender motion also does not constitute
extraordinary circumstances that overcome the requirement that motions seeking
correction of a sentence imposed in an illegal manner—or otherwise seeking a
sentence reduction—be brought within ninety days of sentencing. “‘Extraordinary
9 See id. § 4201(c) (effective June 2, 2015, to September 2, 2015) (designating Burglary in the Second Degree under 11 Del. C. § 825 as a violent felony). 10 See id. § 825 (effective July 12, 2004, to September 15, 2019) (classifying second-degree burglary of a dwelling as a class D felony); id. § 4205(b)(4) (effective June 30, 2003, to present) (establishing a sentencing range of zero to eight years for a class D felony); id. § 4214(a) (effective July 3, 2013, to July 18, 2016) (“[T]he court in which such fourth or subsequent conviction is had, in imposing sentence, may in its discretion, impose a sentence of up to life imprisonment . . . . Notwithstanding any provision of this title to the contrary, any person sentenced pursuant to this subsection shall receive a minimum sentence which shall not be less than the statutory maximum penalty provided elsewhere in this title for the fourth or subsequent felony . . . [if] the fourth or subsequent felony is a Title 11 violent felony, as defined in § 4201(c) of this title.”). 11 As noted above, Fulton agreed when he pleaded guilty that he was subject to habitual-offender sentencing under Section 4214(a) and had prior felony convictions that included second-degree burglary, second-degree assault, and carrying a concealed deadly weapon, in addition to the three counts of third-degree unlawful sexual penetration and other felonies. 12 Fulton did not present to the Superior Court his argument that his sentence is illegal under Erlinger v. United States, 602 U.S. 821 (2024), and we will not consider the issue for the first time on appeal. DEL. SUPR. CT. R. 8.
6 circumstances’ are circumstances that specifically justify the delay; are entirely
beyond a petitioner’s control; and have prevented the applicant from seeking the
remedy on a timely basis.”13 Fulton has not shown such circumstances; indeed, he
asserted in a motion that he filed nearly a decade ago that the habitual-offender
motion incorrectly identified the sexual offenses of which he was previously
convicted. Because Fulton’s sentence is not illegal and he has not shown
extraordinary circumstances to overcome the ninety-day time bar, the Superior Court
appropriately denied his request for relief under Rule 35.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr. Chief Justice
13 Bodnari v. State, 2019 WL 3945647, at *2 (Del. Aug. 20, 2019) (internal quotations omitted).