IN THE SUPREME COURT OF THE STATE OF DELAWARE
ALEX RYLE, § § No. 194, 2021 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. 1404000692 (N) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §
Submitted: December 3, 2021 Decided: January 31, 2022
ORDER
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
Upon consideration of the parties’ briefs and the record below, it appears to the
Court that:
(1) The appellant, Alex Ryle, filed this appeal from a Superior Court order
denying his motion for correction of illegal sentence.1 After careful consideration
of the parties’ arguments, we conclude that the judgment of the Superior Court
should be affirmed.
(2) The record reflects that, in February 2015, a Superior Court jury found
Ryle guilty of possession of a firearm by a person prohibited (“PFBPP”), carrying a
1 State v. Ryle, 2021 WL 2272851 (Del. Super. Ct. June 2, 2021). concealed deadly weapon (“CCDW”), and possession of firearm ammunition by a
person prohibited (“PABPP”). The verdict arose from the police discovering a
loaded firearm in Ryle’s right front pants pocket when they arrested him for
absconding from probation authorities.
(3) After granting the State’s petition to declare Ryle an habitual offender
under 11 Del. C. § 4214(a), the Superior Court sentenced Ryle as follows: (i) for
PFBPP, as an habitual offender under Section 4214(a), fifteen years of Level V
incarceration with credit for 159 days previously served; (ii) for CCDW, as an
habitual offender under Section 4214(a), eight years of Level V incarceration; and
(iii) for PABPP, eight years of Level V incarceration suspended for decreasing levels
of supervision. On appeal, this Court affirmed the Superior Court’s judgment.2 This
Court subsequently affirmed the Superior Court’s denial of Ryle’s first motion for
postconviction relief.3
(4) On February 3, 2021 Ryle filed a motion for correction of illegal
sentence. At the Superior Court’s request, the State filed a response to the motion.
On June 2, 2021, the Superior Court denied the motion. This appeal followed.
(5) We review the denial of a motion for sentence correction for abuse of
discretion.4 We review questions of law and claims of constitutional violations de
2 Ryle v. State, 2016 WL 5929952 (Del. Oct. 11, 2016). 3 Ryle v. State, 2020 WL 2188923 (Del. May 5, 2020). 4 Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014). 2 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
(6) As he did below, Ryle argues that PFBPP and PABPP are lesser-
included offenses of CCDW under 11 Del. C. § 206 and therefore his separate
convictions and sentences for PFBPP, PABPP, and CCDW violate the Double
Jeopardy Clauses of the United States and Delaware Constitutions. This Court has
previously held that the Double Jeopardy Clauses do not bar treating PFBPP and
PABPP convictions based on possession of one, loaded firearm as separate offenses
for sentencing purposes.7 Ryle’s argument that PFBPP and PABPP are lesser
included offenses of CCDW is also unavailing.
(7) The prohibition against Double Jeopardy protects a criminal defendant
from receiving multiple punishments for the same offense.8 “Section 206 effectively
codifies the test laid out by the United States Supreme Court in Blockburger v.
United States for determining whether two offenses are the same for double jeopardy
5 Panuski v. State, 41 A.3d 416, 419 (Del. 2012). 6 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998). 7 Brown v. State, 2021 WL 2588923, at *1 (Del. June 24, 2021). 8 North Carolina v. Pearce, 395 U.S. 711, 717 (1969); State v. Cook, 600 A.2d 352, 354 (Del. 1991). 3 purposes.”9 Blockburger and Section 206 do not negate clearly expressed legislative
intent “to allow (or prohibit) convictions under two separate statutes.”10
(8) Section 206 provides that “[w]hen the same conduct of a defendant may
establish the commission of more than 1 offense, the defendant may be prosecuted
for each offense.”11 The defendant may not be convicted of more than one offense
when one “offense is included in the other, as defined in subsection (b) of this
section.”12 Ryle relies on Section 206(b)(3) to argue that PFBPP and PABPP are
lesser-included offenses of CCDW. This section provides that an offense is included
when “[i]t involves the same result but differs from the offense charged only in the
respect that a less serious injury or risk of injury to the same…public interest or a
lesser kind of culpability suffices to establish its commission.”13
(9) As the Superior Court recognized, PFBPP, PABPP, and CCDW contain
different elements. The elements of PFBPP and PABPP are the “purchasing,
owning, possessing or controlling [of] a deadly weapon or ammunition for a firearm”
9 Mills v. State, 201 A.3d 1163, 1167 (Del. 2019). In Blockburger v. United States, the United States Supreme Court held that “where the same act or transaction constitutes a violation of the two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.” 284 U.S. 299, 304 (1932). 10 Mills, 201 A.3d at 1176. See also Stigars v. State, 674 A.2d 477, 482-82 (Del. 1996) (declining to apply Blockburger test where commentary to the criminal code reflected the General Assembly’s intention for felony theft be a lesser-included offense of robbery). 11 11 Del. C. § 206(a). 12 Id. § 206(a)(1). 13 Id. § 206(b)(3). 4 by a person prohibited.14 The elements of CCDW are carrying a concealed deadly
weapon without a license to do so.15 Emphasizing that Section 1448 requires proof
of a felony conviction while Section 1442 requires proof of concealment, this Court
held that Section 1448 and 1442 offenses were not the same for double jeopardy
purposes in Upshur v. State.16 Upshur involved a defendant who was convicted and
sentenced for Section 1448 and 1442 violations that arose from his concealment of
a butcher knife in the waistband of his pants.17
(10) As Ryle notes, the Commentary to the Delaware Criminal Code of 1973
(“Code Commentary”) provides that there may be some dissimilarity in the elements
between an offense and a lesser-included offense under Section 206(b)(3) (then
Section 206(2)(c)). But PFBPP and PABPP are still not lesser-included offenses of
CCDW under Section 206(b)(3). First, there is not a less serious risk of injury to the
public interest from PFBPP or PABPP than from CCDW. In State v. Robinson, this
Court explained that the provisions of the predecessor statute to Section 1448
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
ALEX RYLE, § § No. 194, 2021 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. 1404000692 (N) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §
Submitted: December 3, 2021 Decided: January 31, 2022
ORDER
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
Upon consideration of the parties’ briefs and the record below, it appears to the
Court that:
(1) The appellant, Alex Ryle, filed this appeal from a Superior Court order
denying his motion for correction of illegal sentence.1 After careful consideration
of the parties’ arguments, we conclude that the judgment of the Superior Court
should be affirmed.
(2) The record reflects that, in February 2015, a Superior Court jury found
Ryle guilty of possession of a firearm by a person prohibited (“PFBPP”), carrying a
1 State v. Ryle, 2021 WL 2272851 (Del. Super. Ct. June 2, 2021). concealed deadly weapon (“CCDW”), and possession of firearm ammunition by a
person prohibited (“PABPP”). The verdict arose from the police discovering a
loaded firearm in Ryle’s right front pants pocket when they arrested him for
absconding from probation authorities.
(3) After granting the State’s petition to declare Ryle an habitual offender
under 11 Del. C. § 4214(a), the Superior Court sentenced Ryle as follows: (i) for
PFBPP, as an habitual offender under Section 4214(a), fifteen years of Level V
incarceration with credit for 159 days previously served; (ii) for CCDW, as an
habitual offender under Section 4214(a), eight years of Level V incarceration; and
(iii) for PABPP, eight years of Level V incarceration suspended for decreasing levels
of supervision. On appeal, this Court affirmed the Superior Court’s judgment.2 This
Court subsequently affirmed the Superior Court’s denial of Ryle’s first motion for
postconviction relief.3
(4) On February 3, 2021 Ryle filed a motion for correction of illegal
sentence. At the Superior Court’s request, the State filed a response to the motion.
On June 2, 2021, the Superior Court denied the motion. This appeal followed.
(5) We review the denial of a motion for sentence correction for abuse of
discretion.4 We review questions of law and claims of constitutional violations de
2 Ryle v. State, 2016 WL 5929952 (Del. Oct. 11, 2016). 3 Ryle v. State, 2020 WL 2188923 (Del. May 5, 2020). 4 Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014). 2 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
(6) As he did below, Ryle argues that PFBPP and PABPP are lesser-
included offenses of CCDW under 11 Del. C. § 206 and therefore his separate
convictions and sentences for PFBPP, PABPP, and CCDW violate the Double
Jeopardy Clauses of the United States and Delaware Constitutions. This Court has
previously held that the Double Jeopardy Clauses do not bar treating PFBPP and
PABPP convictions based on possession of one, loaded firearm as separate offenses
for sentencing purposes.7 Ryle’s argument that PFBPP and PABPP are lesser
included offenses of CCDW is also unavailing.
(7) The prohibition against Double Jeopardy protects a criminal defendant
from receiving multiple punishments for the same offense.8 “Section 206 effectively
codifies the test laid out by the United States Supreme Court in Blockburger v.
United States for determining whether two offenses are the same for double jeopardy
5 Panuski v. State, 41 A.3d 416, 419 (Del. 2012). 6 Brittingham v. State, 705 A.2d 577, 578 (Del. 1998). 7 Brown v. State, 2021 WL 2588923, at *1 (Del. June 24, 2021). 8 North Carolina v. Pearce, 395 U.S. 711, 717 (1969); State v. Cook, 600 A.2d 352, 354 (Del. 1991). 3 purposes.”9 Blockburger and Section 206 do not negate clearly expressed legislative
intent “to allow (or prohibit) convictions under two separate statutes.”10
(8) Section 206 provides that “[w]hen the same conduct of a defendant may
establish the commission of more than 1 offense, the defendant may be prosecuted
for each offense.”11 The defendant may not be convicted of more than one offense
when one “offense is included in the other, as defined in subsection (b) of this
section.”12 Ryle relies on Section 206(b)(3) to argue that PFBPP and PABPP are
lesser-included offenses of CCDW. This section provides that an offense is included
when “[i]t involves the same result but differs from the offense charged only in the
respect that a less serious injury or risk of injury to the same…public interest or a
lesser kind of culpability suffices to establish its commission.”13
(9) As the Superior Court recognized, PFBPP, PABPP, and CCDW contain
different elements. The elements of PFBPP and PABPP are the “purchasing,
owning, possessing or controlling [of] a deadly weapon or ammunition for a firearm”
9 Mills v. State, 201 A.3d 1163, 1167 (Del. 2019). In Blockburger v. United States, the United States Supreme Court held that “where the same act or transaction constitutes a violation of the two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.” 284 U.S. 299, 304 (1932). 10 Mills, 201 A.3d at 1176. See also Stigars v. State, 674 A.2d 477, 482-82 (Del. 1996) (declining to apply Blockburger test where commentary to the criminal code reflected the General Assembly’s intention for felony theft be a lesser-included offense of robbery). 11 11 Del. C. § 206(a). 12 Id. § 206(a)(1). 13 Id. § 206(b)(3). 4 by a person prohibited.14 The elements of CCDW are carrying a concealed deadly
weapon without a license to do so.15 Emphasizing that Section 1448 requires proof
of a felony conviction while Section 1442 requires proof of concealment, this Court
held that Section 1448 and 1442 offenses were not the same for double jeopardy
purposes in Upshur v. State.16 Upshur involved a defendant who was convicted and
sentenced for Section 1448 and 1442 violations that arose from his concealment of
a butcher knife in the waistband of his pants.17
(10) As Ryle notes, the Commentary to the Delaware Criminal Code of 1973
(“Code Commentary”) provides that there may be some dissimilarity in the elements
between an offense and a lesser-included offense under Section 206(b)(3) (then
Section 206(2)(c)). But PFBPP and PABPP are still not lesser-included offenses of
CCDW under Section 206(b)(3). First, there is not a less serious risk of injury to the
public interest from PFBPP or PABPP than from CCDW. In State v. Robinson, this
Court explained that the provisions of the predecessor statute to Section 1448
“demonstrate a manifest intention on the part of the General Assembly to protect the
public from the actions of members of that class of persons who, by their past
conduct, have shown themselves unworthy to possess firearms.”18
14 Id. § 1448(a), (b). 15 Id. § 1442. 16 420 A.2d 165, 168 (Del. 1980) 17 Id. at 167-68. 18 251 A.2d 552, 555 (Del. 1969). 5 (11) As to CCDW, this Court has described the legislative purpose as
follows:
The purpose of the General Assembly, in enacting this Statute originally in 1881 (when, as now, carrying a deadly weapon unconcealed seemed no criminal offense) was to remove the “temptation and tendency” to use concealed deadly weapons under conditions of “excitement.” See State v. Costen, Del.Ct.Gen.Sess., 39 A. 456 (1897); State v. Chippey, Del.Ct.Gen.Sess., 33 A. 438 (1892). The legislative purpose, originally and presently, seems to be the avoidance of a deadly attack against another by surprise.19
The risk to the public interest of PFBPP and PABPP (armed crime by convicted
felons) is not less than the risk to the public interest of CCDW (surprise attack by
those with a deadly weapon).
(12) Second, PFBPP and PABPP do not require less culpability than
CCDW. PFBPP and PABPP require a person prohibited’s knowing possession of a
firearm or firearm ammunition. CCDW requires a person’s knowing possession of
a concealed deadly weapon without a license.
(13) Ryle’s reliance on Poteat v. State,20 State v. Willis,21 and Ball v. United
States22 to argue that PFBPP and PFABPP are lesser-included offenses of CCDW is
misplaced. In Poteat, this Court concluded that aggravated menacing was a lesser-
included offense of first-degree robbery because the Code Commentary contained
19 Dubin v. State, 397 A.2d 132, 134 (Del. 1979). 20 840 A.2d 599 (Del. 2003). 21 673 A.2d 1233 (Del. Super. Ct. 1995). 22 470 U.S. 856 (1985). 6 language reflecting the General Assembly’s unambiguous intent for menacing to be
a lesser-included offense of robbery.23 The Code Commentary does not contain
language reflecting the General Assembly’s unambiguous intent for PFBPP and
PABPP to be lesser-included offenses of CCDW.
(14) In Willis, the Superior Court held that Section 206(b)(3) prohibited the
prosecution of the defendant for first-degree robbery after his prior conviction for
unauthorized use of a vehicle because the temporary loss of a vehicle was a less
serious injury to the vehicle owner and involved lesser culpability by the
unauthorized user of the vehicle.24 As already discussed, PFBPP and PABPP do not
involve less serious risk of injury or less culpability than CCDW. In Ball, the United
States Supreme Court held that a felon could not be convicted and sentenced for both
receipt and possession of the same firearm because proof of illegal receipt of the
firearm necessarily included proof of illegal possession of the firearm.25 Unlike Ball,
the proof needed for CCDW (concealment of a deadly weapon without a license)
does not necessarily include the proof needed for PFBPP and PABPP (possession of
a firearm or firearm ammunition by a person prohibited). Having carefully
considered the parties’ arguments, we conclude that the Superior Court did not err
in denying Ryle’s motion for correction of illegal sentence.
23 Poteat, 840 A.2d at 605. 24 Willis, 673 A.2d at 1240. 25 Ball, 470 U.S. at 861-65. 7 NOW, THEREFORE, IT ORDERED that the judgment of the Superior Court
is AFFIRMED.
BY THE COURT: /s/ Karen L. Valihura Justice