State v. Boone

• Court: Superior Court of Delaware
• Decided: May 8, 2023
• Docket: 1305018893
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) ) v. ) Case ID No.: 1305018893 ) ) KEVIN BOONE ) ) Defendant. )

ORDER

Submitted: February 9, 2023 Decided: May 8, 2023

AND NOW TO WIT, this 8th day of May 2023, upon consideration of

Defendant Kevin Boone (“Defendant”)’s Motion for Correction of Illegal Sentence,1

the sentence imposed upon Defendant, and the record in this case, it appears to the

Court that:

1. On December 12, 2013, Defendant was sentenced to Dealing in Child

Pornography and three counts of Possession of Child Pornography. For the former,

he was sentenced to fifteen years at Level V, suspended after three years for three

years at Level III; and for the latter, as to each count, three years of Level V,

suspended for two years at Level II.2 Special conditions of his probation included

1 See D.I. 59. 2 D.I. 12. no unsupervised contact with minors under age eighteen and no access to the

Internet.3 On December 20, 2017, this Court determined he violated both conditions

of his probation.4

2. It was alleged that Defendant made contact with a fourteen-year old

male via a personal ad posted on Craigslist, traveled out of state with the minor, and

engaged in sexual activity with the boy in both Delaware and Pennsylvania in

September and October of 2017.5 Accordingly, on the charge of Dealing in Child

Pornography, Defendant was resentenced to the remaining twelve years of Level V,

to be suspended upon successful completion of the Transitions Sex Offender

Program, followed by two and a half years of transitioning levels of probation.6

3. Defendant has since filed multiple motions challenging the December

2017 sentence, including a motion for correction of an illegal sentence under Rule

35(a).7 All requests have been denied.8

4. Defendant again filed this motion under Rule 35(a).9 This time

Defendant asserts that his violation of probation was “a technical violation that did

not involve any new criminal charge or aggravating sentencing factors . . . .” 10 He

3 D.I. 12. 4 D.I. 20. 5 See id. 6 Id. 7 See State v. Boone, 2019 WL 7166784, at *1–2 (Del. Super. Dec. 23, 2019). 8 See id. 9 See D.I. 59. 10 Id. 2 further asserts that his December 2017 sentence violated the SENTAC guidelines,

and that he has completed the Transitions Sex Offender Treatment Program.11

5. Rule 35(a) states that the Court “may correct an illegal sentence at any

time.”12 The rule is limited to situations where the sentence imposed exceeds

statutorily-authorized 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.13

6. Defendant does not allege any bases for relief under Rule 35(a). This

Court properly determined that Defendant breached the conditions of his probation.

No aggravators under SENTAC were considered, nor needed, to impose his VOP

sentence. Given the nature of the violation, the sentence was appropriate. And

although Defendant completed the Transitions Sex Offender Program on November

14, 2019, he remains incarcerated—and is serving a Level V sentence—on an

unrelated matter.14 His sentence is not illegal.

7. Defendant’s Motion for Correction of Illegal Sentence is DENIED.

11 D.I. 59. 12 Del. Super. Ct. Crim. R. 35(a). 13 See Brittingham v. State, 705 A.2d 577, 578 (Del. 1998) (citations omitted). See, e.g., Ellerbe v. State, 2017 WL 462144, at *1 (Del. Feb. 2, 2017) (quoting Brittingham, 705 A.2d at 578). 14 E-mail from DOC (May 1, 2023, 1:41 p.m.) (providing that Defendant completed the Transitions Sex Offender Program and is currently serving his Level V sentence on a separate case 1803002540). 3 IT IS SO ORDERED.

/s/ Vivian L. Medinilla Vivian L. Medinilla Judge

oc: Prothonotary cc: Department of Justice Investigative Services Defendant