IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE ) ) v. ) I.D. No. 1412002671 ) ROBERT MILLER, ) ) Defendant. )
Submitted: September 27, 2021 Decided: October 13, 2021
Upon Defendant’s Rule 35(a) Motion for Correction of Illegal Sentence, DENIED.
ORDER
Robert Miller, SBI # 00201116, Sussex Correctional Institution, P.O. Box 500, Georgetown, DE 19947, pro se.
Renee Hrivnak, Esquire, Deputy Attorney General, Department of Justice, 820 N. French St., Wilmington, Delaware, Attorneys for the State.
WHARTON, J. This 13th day of October, 2021, upon consideration of Defendant Robert W.
Miller’s (“Miller”) Rule 35(a) Motion for Correction of Illegal Sentence1 and the
record in this matter, it appears to the Court that:
1. Miller was indicted by the Grand Jury on a single count of assault in
the second degree. On June 9, 2015, Miller pled guilty to that charge. In exchange,
the State dropped a charge of offensive touching in the Court of Common Pleas and
agreed to cap its sentencing recommendation of unsuspended incarceration at three
years. On December 5, 2015, the Court sentenced Miller to eight years of
incarceration pursuant to 11 Del. C. § 4204(k), followed by six months at Level IV
pursuant to 11 Del. C. § 4204(l). Miller appealed his conviction to the Delaware
Supreme Court. That court entered an Order affirming his conviction on May 18,
2016.2
2. A timely motion for postconviction relief pursuant to Superior Court
Criminal Rule 61, Miller’s first, was filed on December 14, 2015, before his direct
appeal was decided.3 The motion raised a single issue of ineffective assistance of
counsel and did not request appointment of counsel. The Court denied that motion
on October 18, 2016.4 Miller’s appeal of that decision was untimely.5
1 D.I. 44. 2 Miller v. State, 2016 WL 3410306 (Del. 2016). 3 Mot. for Postconviction Relief, D.I. 16. 4 State v. Miller, 2016 WL 6094170 (Del. Super. Ct. Oct. 18, 2016). 5 D.I. 31. 2 3. Miller filed a second motion for postconviction relief on September 25,
2017.6 In it, he incorrectly represented that the basis of his conviction was the
finding of a judge in a non-jury trial, when, in fact, Miller entered a guilty plea.7
Again he raised a single claim for relief – that there was newly discovered evidence
that the victim’s wounds were old, occurring in 2009 -2010, and that she was seen
for these injuries at the Wilmington Hospital.8 The Court summarily dismissed that
second motion on September 27, 2017.9 It appears he did not appeal that decision.
4. He followed that motion with a Petition for a Writ of Habeas Corpus on
November 22, 2017.10 The petition was denied on November 27, 2017.11 That denial
was affirmed on May 21, 2018.12
5. Miller then filed a motion to withdraw his guilty plea on August 22,
2018.13 That motion, which the Court treated as a motion for postconviction relief,
was summarily dismissed on August 27, 2018.14
6. In this motion under Rule 35(a), Miller raises two claims that his
sentence was illegal. First, he argues that the Court failed to articulate the basis for
its departure from the SENTAC guidelines when it imposed a sentence pursuant to 11
6 Mot. for Postconviction Relief, D.I. 32. 7 Id., at ¶ 6. 8 Id., at 3. 9 State v. Miller, 2017 WL 568362 (Del. Super. Ct. Sept. 27, 2018). 10 Pet. for Writ Habeas Corpus, D.I. 35. 11 D.I. 37. 12 Miller v. Akinbayo, 2018 WL 2306059 (Del. 2018). 13 Mot. to Withdraw Guilty Plea, D.I. 42. 14 State v. Miller, 2018 WL 4095559 (Del. Super. Ct. Aug. 27, 2018). 3 Del. C. § 4204(k).15 Second, his additional six-month Level IV sentence illegally
exceeds the maximum penalty for his crime.16
7. The charge to which Miller pled guilty, assault in the second degree, is a
class D felony carrying a maximum period of incarceration of eight years.17
According to SENTAC Guidelines, the presumptive sentence for a class D violent
felony is 0-2 years at Level V. That presumptive sentence is increased to 0-8 years at
Level V if the offender’s prior criminal history includes two or more prior violent
felonies. According to the presentence report, Miller pled guilty to three counts of
burglary in the second degree on September 8, 1987 and one count of robbery in the
first degree on September 27, 1988. Both burglary in the second degree and robbery
in the first degree are violent felonies. Thus, Miller’s presumptive sentence was up
to the maximum sentence of eight years at Level V. That enhanced presumptive
sentence is set out in the presentence report.
8. Miller argues that SENTAC Statement of Policy No. 30 treats sentences
under 11 Del. C. § 4204(k) as departures from the presumptive sentencing guidelines
and, therefore, the reason for the use of § 4204(k) must be stated on the record and
included in the sentencing order. However, 11 Del. C. § 4204(n), from which the
SENTAC policy statement presumably is drawn, merely requires “[w]henever a court
imposes a sentence inconsistent with the presumptive sentence adopted by the
15 Rule 35(a) Mot., D.I. 44. 16 Id. 17 11 Del. C. § 612(d); 11 Del. C. § 4205(b)(4). 4 Sentencing Accountability Commission, such court shall set forth on the record the
reason for imposing such penalty,” but does not require that the sentencing order
contain those reasons.18
9. At sentencing, the State reviewed the presentence report in detail.
Specifically, the State referenced the report’s review of Miller’s repetitive criminal
history beginning at age 15, his history of violating probation and conditional release,
his substance abuse issues going back to age 16, his prison disciplinary history, and
his untruthful statement to the presentence officer that this incident was the only time
he had assaulted the victim.19 The prosecutor also discussed the victim’s interview
with the presentence officer as reported in the presentence report. During that
interview, the victim related how for a period of about three years Miller would lock
her in a room and force her to use a bucket to urinate and defecate while he was gone,
how everything she earned went to him while he never worked, how he prevented her
from seeing her son and her family, how he stalked her, and how she repeatedly
expressed her fear that he would kill her when he was released.20 The prosecutor
contrasted the victim’s statements with Miller’s comments that he thought she wanted
to resume a relationship with him when he was released, that he did not think he hit
her that hard, and the injury was actually an old injury she never got fixed.21
18 11 Del. C. § 4204(n). 19 Tr. Sentencing Hearing (Nov. 13, 2015), at 1-4. 20 Id., at 4-8. 21 Id. at 8. The minimization of the victim’s injuries was blatantly untrue. The prosecutor described the photographs [of the victim’s injuries] tendered at 5 10. When it sentenced Miller, the Court told Miller that it had “never read a
presentence report quite like this one. What was recounted by [the victim], if even
one-tenth of that is true, means Mr. Miller is someone who cannot be free in
society.”22 The Court did not go into great detail in stating why it was imposing a
sentence “inconsistent with the presumptive sentence,” but the Court’s comments
made it very clear that it was imposing such a sentence because the terrible history of
abuse the victim suffered at Miller’s hands as related by her to the presentence officer
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE ) ) v. ) I.D. No. 1412002671 ) ROBERT MILLER, ) ) Defendant. )
Submitted: September 27, 2021 Decided: October 13, 2021
Upon Defendant’s Rule 35(a) Motion for Correction of Illegal Sentence, DENIED.
ORDER
Robert Miller, SBI # 00201116, Sussex Correctional Institution, P.O. Box 500, Georgetown, DE 19947, pro se.
Renee Hrivnak, Esquire, Deputy Attorney General, Department of Justice, 820 N. French St., Wilmington, Delaware, Attorneys for the State.
WHARTON, J. This 13th day of October, 2021, upon consideration of Defendant Robert W.
Miller’s (“Miller”) Rule 35(a) Motion for Correction of Illegal Sentence1 and the
record in this matter, it appears to the Court that:
1. Miller was indicted by the Grand Jury on a single count of assault in
the second degree. On June 9, 2015, Miller pled guilty to that charge. In exchange,
the State dropped a charge of offensive touching in the Court of Common Pleas and
agreed to cap its sentencing recommendation of unsuspended incarceration at three
years. On December 5, 2015, the Court sentenced Miller to eight years of
incarceration pursuant to 11 Del. C. § 4204(k), followed by six months at Level IV
pursuant to 11 Del. C. § 4204(l). Miller appealed his conviction to the Delaware
Supreme Court. That court entered an Order affirming his conviction on May 18,
2016.2
2. A timely motion for postconviction relief pursuant to Superior Court
Criminal Rule 61, Miller’s first, was filed on December 14, 2015, before his direct
appeal was decided.3 The motion raised a single issue of ineffective assistance of
counsel and did not request appointment of counsel. The Court denied that motion
on October 18, 2016.4 Miller’s appeal of that decision was untimely.5
1 D.I. 44. 2 Miller v. State, 2016 WL 3410306 (Del. 2016). 3 Mot. for Postconviction Relief, D.I. 16. 4 State v. Miller, 2016 WL 6094170 (Del. Super. Ct. Oct. 18, 2016). 5 D.I. 31. 2 3. Miller filed a second motion for postconviction relief on September 25,
2017.6 In it, he incorrectly represented that the basis of his conviction was the
finding of a judge in a non-jury trial, when, in fact, Miller entered a guilty plea.7
Again he raised a single claim for relief – that there was newly discovered evidence
that the victim’s wounds were old, occurring in 2009 -2010, and that she was seen
for these injuries at the Wilmington Hospital.8 The Court summarily dismissed that
second motion on September 27, 2017.9 It appears he did not appeal that decision.
4. He followed that motion with a Petition for a Writ of Habeas Corpus on
November 22, 2017.10 The petition was denied on November 27, 2017.11 That denial
was affirmed on May 21, 2018.12
5. Miller then filed a motion to withdraw his guilty plea on August 22,
2018.13 That motion, which the Court treated as a motion for postconviction relief,
was summarily dismissed on August 27, 2018.14
6. In this motion under Rule 35(a), Miller raises two claims that his
sentence was illegal. First, he argues that the Court failed to articulate the basis for
its departure from the SENTAC guidelines when it imposed a sentence pursuant to 11
6 Mot. for Postconviction Relief, D.I. 32. 7 Id., at ¶ 6. 8 Id., at 3. 9 State v. Miller, 2017 WL 568362 (Del. Super. Ct. Sept. 27, 2018). 10 Pet. for Writ Habeas Corpus, D.I. 35. 11 D.I. 37. 12 Miller v. Akinbayo, 2018 WL 2306059 (Del. 2018). 13 Mot. to Withdraw Guilty Plea, D.I. 42. 14 State v. Miller, 2018 WL 4095559 (Del. Super. Ct. Aug. 27, 2018). 3 Del. C. § 4204(k).15 Second, his additional six-month Level IV sentence illegally
exceeds the maximum penalty for his crime.16
7. The charge to which Miller pled guilty, assault in the second degree, is a
class D felony carrying a maximum period of incarceration of eight years.17
According to SENTAC Guidelines, the presumptive sentence for a class D violent
felony is 0-2 years at Level V. That presumptive sentence is increased to 0-8 years at
Level V if the offender’s prior criminal history includes two or more prior violent
felonies. According to the presentence report, Miller pled guilty to three counts of
burglary in the second degree on September 8, 1987 and one count of robbery in the
first degree on September 27, 1988. Both burglary in the second degree and robbery
in the first degree are violent felonies. Thus, Miller’s presumptive sentence was up
to the maximum sentence of eight years at Level V. That enhanced presumptive
sentence is set out in the presentence report.
8. Miller argues that SENTAC Statement of Policy No. 30 treats sentences
under 11 Del. C. § 4204(k) as departures from the presumptive sentencing guidelines
and, therefore, the reason for the use of § 4204(k) must be stated on the record and
included in the sentencing order. However, 11 Del. C. § 4204(n), from which the
SENTAC policy statement presumably is drawn, merely requires “[w]henever a court
imposes a sentence inconsistent with the presumptive sentence adopted by the
15 Rule 35(a) Mot., D.I. 44. 16 Id. 17 11 Del. C. § 612(d); 11 Del. C. § 4205(b)(4). 4 Sentencing Accountability Commission, such court shall set forth on the record the
reason for imposing such penalty,” but does not require that the sentencing order
contain those reasons.18
9. At sentencing, the State reviewed the presentence report in detail.
Specifically, the State referenced the report’s review of Miller’s repetitive criminal
history beginning at age 15, his history of violating probation and conditional release,
his substance abuse issues going back to age 16, his prison disciplinary history, and
his untruthful statement to the presentence officer that this incident was the only time
he had assaulted the victim.19 The prosecutor also discussed the victim’s interview
with the presentence officer as reported in the presentence report. During that
interview, the victim related how for a period of about three years Miller would lock
her in a room and force her to use a bucket to urinate and defecate while he was gone,
how everything she earned went to him while he never worked, how he prevented her
from seeing her son and her family, how he stalked her, and how she repeatedly
expressed her fear that he would kill her when he was released.20 The prosecutor
contrasted the victim’s statements with Miller’s comments that he thought she wanted
to resume a relationship with him when he was released, that he did not think he hit
her that hard, and the injury was actually an old injury she never got fixed.21
18 11 Del. C. § 4204(n). 19 Tr. Sentencing Hearing (Nov. 13, 2015), at 1-4. 20 Id., at 4-8. 21 Id. at 8. The minimization of the victim’s injuries was blatantly untrue. The prosecutor described the photographs [of the victim’s injuries] tendered at 5 10. When it sentenced Miller, the Court told Miller that it had “never read a
presentence report quite like this one. What was recounted by [the victim], if even
one-tenth of that is true, means Mr. Miller is someone who cannot be free in
society.”22 The Court did not go into great detail in stating why it was imposing a
sentence “inconsistent with the presumptive sentence,” but the Court’s comments
made it very clear that it was imposing such a sentence because the terrible history of
abuse the victim suffered at Miller’s hands as related by her to the presentence officer
and summarized by the prosecutor in her sentencing comments, meant that there was
a need to protect her and society from him for as long a legally possible. To meet this
need, the Court sentenced Miller to the longest sentence the law allowed.
11. While the reasons for the Court’s sentencing departure from the
presumptive sentence are not contained within the four corners of the Sentencing
Order, this omission, in and of itself does not result in an illegal sentence. 23 So long
as the reason for the sentence can be determined from the entirety of the record,
including the judge’s comments at sentencing, the sentence will stand.24 The Court
sentencing this way: “…the fact that her face fell on the one side as a result of the strike...She had to have surgery to fix her eye, and she had multiple fractures as a result of that hit.” Id., at 5. 22 Id., at 13. 23 State v. Lloyd, 2021 WL 2399813 (Del. Super. Ct. June 10, 2021) (citing White v. State, 243 A.3d 381, 412 (Del. 2020); Gibson v. State, 2020 WL 7213227 (Del. 2020); Mayes v. State, 604 A.2d 839 (Del. 1992); Brochu v. State, 2016 WL 690650 (Del. 2016). 24 Id. (citing White; Davenport v. State, 2016 WL 6146171 (Del. 2016); Brochu). 6 is mindful of the requirements of § 4204(n).25 The Court finds that, consistent with
SENTAC Policy No. 30 and § 4204(n), it has provided sufficient information to allow
the Delaware Supreme Court to carry out its appellate function in reviewing the
sentence.26
12. Miller’s second claim is resolved by reference to the statute. Whenever
the court imposes a Level V sentence of one year or more, the court must include a
period of supervision at either Level IV, III, or II of not less than six months.27 At the
discretion of the court this six-month transition sentence may “be in addition to the
maximum sentence of imprisonment established by the statute.”28 Thus, Miller’s
Level IV sentence is not an illegal sentence.
THEREFORE, Miller’s Rule 35(a) Motion for Correction of Illegal Sentence
DENIED.
IT IS SO ORDERED.
/s/ Ferris W. Wharton Ferris W. Wharton, J.
25 See Gibson. 26 White, n. 158. 27 11 Del C. § 4204(l). 28 Id. 7