IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
THE STATE OF DELAWARE ) ) ) v. ) ) OTIS PHILLIPS, ) Case No.: 1210013321 ) Defendant. ) ) ) ) )
Date Submitted: October 10, 2024 Date Decided: November 15, 2024
Upon hearing Defendant’s Motion for Post Conviction Relief. DENIED.
ORDER
Andrew J. Vella, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for the State of Delaware.
Otis Phillips, Pro Se.
SCOTT, J. This 15th day of November 2024, upon consideration of Defendant’s Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 it appears that:
1. Otis Phillips (“Phillips”) has filed a second pro se Motion for
Postconviction Relief, pursuant to Superior Court Criminal Rule 61. For
the reasons set forth below, Phillips’ Motion is DENIED.
2. After a 21 day trial, Otis Phillips was convicted of the following charges;
murder in the first degree, manslaughter (as a lesser-included offense of
murder in the first degree), murder in the second degree ( as a lesser-
included offense of first degree murder), gang participation, conspiracy in
the first degree, five counts of possession of a firearm during the
commission of a felony, assault second degree (as a lesser included offense
of attempted murder in the first degree), and assault third degree.
3. The Court sentenced Otis Phillips to death for murder in the first degree,
life imprisonment for murder in the second degree, and 130 years of
incarceration for the remaining offenses. Otis Phillips appealed, and the
Delaware Supreme Court affirmed his convictions on January 17, 2017.
4. The Supreme Court of Delaware remanded the case for resentencing in
light of its decision in Rauf v. State1, declaring portions of the Delaware’s
death penalty statue unconstitutional.
1 Rauf v. State, 145 A.3d 430 (Del. 2016). 5. On May 17, 2017, the Superior Court of Delaware modified Phillips’ death
sentence for murder first degree to a life term pursuant to 11 Del. C. §
4209.
6. On March 6, 2017, Otis Phillips, acting pro se, filed his first Motion for
Postconviction Relief for Ineffective Assistance of Trial Counsel. The
Superior Court of Delaware denied the Motion on November 20, 2019.
Otis Phillips appealed, and the Delaware Supreme Court affirmed the
denial of his post-conviction motion on July 21, 2020.
7. Now, Otis Phillips filed a Second Motion for Post Conviction Relief
pursuant to Delaware Superior Court Criminal Rule 61 asserting that the
Delaware Supreme Court Case Rauf v. State2 renders his conviction of life
imprisonment unlawful.
8. Otis Phillips’ Second Rule 61 Motion for Post Conviction Relief is brought
before this Court under three grounds: (1) Phillips’ rights under the Eighth
and Fourteenth Amendments have been violated because 11 Del. C. § 4209
was declared unconstitutional, and the legislature did not provide for an
alternative sentence; (2) Phillips’ has been denied due process because the
Court did not conduct a sentencing hearing in accord with § 4209(b)(2);
and (3) Phillips’ Fourteenth Amendment rights have been violated because
2 Id. of “an ex post facto sentencing scheme within 11 Del. C. § 4209 …” and
the Court’s “disproportionate” sentence.
9. Delaware Superior Court Criminal Rule 61 “governs the procedure on an
application by a person in custody under a sentence of this Court seeking
to set aside judgement of conviction or a sentence of death on the ground
that the court lacked jurisdiction or any other ground that is sufficient
factual and legal basis for a collateral attack on a criminal conviction or
capital sentence.”3 Further, “the remedy afforded by this rule may not be
sought by a petition for a writ of habeas corpus or in any manner other than
as provided herein.”4
10. Otis Phillips’ claim seeks a correction of an alleged illegal sentence and
does not set aside or collaterally attack the conviction. A post-conviction
motion that seeks to correct a sentence and does not seek to set aside or
collaterally attack a conviction should be raised under Delaware Superior
Court Criminal Rule 35 (“Rule 35”).5
3 Del. Super. Ct. Crim. R. 61. 4 Del. Super. Ct. Crim. R. 61. 5 Wilson v. State, 900 A.2d 102 (Del. 2006); State v. Serfuddin El, 2009 WL 74128, at *1 (Del. Super. Ct.) (A motion to attack the legality of the sentence is properly considered under Delaware Superior Court Criminal Rule 35). 11. Rule 35(a) provides “the court may correct an illegal sentence at any time
and may correct a sentence imposed in an illegal manner within the time
period provided herein for the reduction of sentence.”6 Rule 35(b) provides
no time bar for challenging an ‘illegal sentence,’ but does impose a time
bar of 90 days in the absence of “extraordinary circumstance,”7 for
challenging a “sentence imposed in an illegal manner.”8
12. The distinction between 35(a) and 35(b) is critical for Otis Phillips
because his motion was filed seven years after his sentence was originally
imposed. The Delaware Supreme Court has held that a sentence is illegal:
when the sentence imposed exceeds the statutorily authorized limits, violates the Double Jeopardy Clause, 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.9
6 Del. Super. Ct. Crim. R. 35 (a). 7 State v. Serfuddin El, 2009 WL 74128, at *1 (Del. Super. Ct.) citing DEL.SUPER. CT.CRIM. R. 35(b); Walley v. State, 2007 WL 135615 at *1 (Del.) (holding that a claim that the trial court improperly failed to hold a separate hearing to determine habitual offender status was equivalent to a claim that the sentence was imposed in an illegal manner and, therefore, was required to be asserted within 90 days of sentencing.). 8 Id. 9 Wilson v. State, 2006 WL 1291369 at *3 (Del.2006) (quoting Brittingham v. State, 705 A.2d 577, 578 (Del.1998)). 13. Otis Phillips asserts that his sentence is an illegal sentence. Thus, there is
no applicable time bar under Rule 35(a). Therefore, the Court may consider
Otis Phillips’ Motion on the merits.
14. Otis Phillips asserts his modified sentence of life term pursuant to 11 Del.
C. § 4209 is incorrect as a matter of fact and as a matter of law according
to Delaware Supreme Court ruling in Rauf v. State.10
15. First, Otis Phillips asserts that his rights under the Eighth and Fourteenth
Amendment have been violated because 11 Del. C. § 4209 was declared
unconstitutional, and the legislature did not provide for an alternative
sentence. However, Rauf does not address whether an alternative life-
without parole sentence could be severed from the capital sentencing
scheme.11 Instead, Powell v. State is the applicable law in which the
Supreme Court of Delaware held a petitioner’s death penalty could be
restored to a lesser sentence of life without parole, if the death penalty were
to be invalidated.12 Thus, Otis Phillips’ death sentence, which was vacated
10 Rauf v. State, 145 A.3d 430 (Del. 2016). 11 Zebroski v.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
THE STATE OF DELAWARE ) ) ) v. ) ) OTIS PHILLIPS, ) Case No.: 1210013321 ) Defendant. ) ) ) ) )
Date Submitted: October 10, 2024 Date Decided: November 15, 2024
Upon hearing Defendant’s Motion for Post Conviction Relief. DENIED.
ORDER
Andrew J. Vella, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for the State of Delaware.
Otis Phillips, Pro Se.
SCOTT, J. This 15th day of November 2024, upon consideration of Defendant’s Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 it appears that:
1. Otis Phillips (“Phillips”) has filed a second pro se Motion for
Postconviction Relief, pursuant to Superior Court Criminal Rule 61. For
the reasons set forth below, Phillips’ Motion is DENIED.
2. After a 21 day trial, Otis Phillips was convicted of the following charges;
murder in the first degree, manslaughter (as a lesser-included offense of
murder in the first degree), murder in the second degree ( as a lesser-
included offense of first degree murder), gang participation, conspiracy in
the first degree, five counts of possession of a firearm during the
commission of a felony, assault second degree (as a lesser included offense
of attempted murder in the first degree), and assault third degree.
3. The Court sentenced Otis Phillips to death for murder in the first degree,
life imprisonment for murder in the second degree, and 130 years of
incarceration for the remaining offenses. Otis Phillips appealed, and the
Delaware Supreme Court affirmed his convictions on January 17, 2017.
4. The Supreme Court of Delaware remanded the case for resentencing in
light of its decision in Rauf v. State1, declaring portions of the Delaware’s
death penalty statue unconstitutional.
1 Rauf v. State, 145 A.3d 430 (Del. 2016). 5. On May 17, 2017, the Superior Court of Delaware modified Phillips’ death
sentence for murder first degree to a life term pursuant to 11 Del. C. §
4209.
6. On March 6, 2017, Otis Phillips, acting pro se, filed his first Motion for
Postconviction Relief for Ineffective Assistance of Trial Counsel. The
Superior Court of Delaware denied the Motion on November 20, 2019.
Otis Phillips appealed, and the Delaware Supreme Court affirmed the
denial of his post-conviction motion on July 21, 2020.
7. Now, Otis Phillips filed a Second Motion for Post Conviction Relief
pursuant to Delaware Superior Court Criminal Rule 61 asserting that the
Delaware Supreme Court Case Rauf v. State2 renders his conviction of life
imprisonment unlawful.
8. Otis Phillips’ Second Rule 61 Motion for Post Conviction Relief is brought
before this Court under three grounds: (1) Phillips’ rights under the Eighth
and Fourteenth Amendments have been violated because 11 Del. C. § 4209
was declared unconstitutional, and the legislature did not provide for an
alternative sentence; (2) Phillips’ has been denied due process because the
Court did not conduct a sentencing hearing in accord with § 4209(b)(2);
and (3) Phillips’ Fourteenth Amendment rights have been violated because
2 Id. of “an ex post facto sentencing scheme within 11 Del. C. § 4209 …” and
the Court’s “disproportionate” sentence.
9. Delaware Superior Court Criminal Rule 61 “governs the procedure on an
application by a person in custody under a sentence of this Court seeking
to set aside judgement of conviction or a sentence of death on the ground
that the court lacked jurisdiction or any other ground that is sufficient
factual and legal basis for a collateral attack on a criminal conviction or
capital sentence.”3 Further, “the remedy afforded by this rule may not be
sought by a petition for a writ of habeas corpus or in any manner other than
as provided herein.”4
10. Otis Phillips’ claim seeks a correction of an alleged illegal sentence and
does not set aside or collaterally attack the conviction. A post-conviction
motion that seeks to correct a sentence and does not seek to set aside or
collaterally attack a conviction should be raised under Delaware Superior
Court Criminal Rule 35 (“Rule 35”).5
3 Del. Super. Ct. Crim. R. 61. 4 Del. Super. Ct. Crim. R. 61. 5 Wilson v. State, 900 A.2d 102 (Del. 2006); State v. Serfuddin El, 2009 WL 74128, at *1 (Del. Super. Ct.) (A motion to attack the legality of the sentence is properly considered under Delaware Superior Court Criminal Rule 35). 11. Rule 35(a) provides “the court may correct an illegal sentence at any time
and may correct a sentence imposed in an illegal manner within the time
period provided herein for the reduction of sentence.”6 Rule 35(b) provides
no time bar for challenging an ‘illegal sentence,’ but does impose a time
bar of 90 days in the absence of “extraordinary circumstance,”7 for
challenging a “sentence imposed in an illegal manner.”8
12. The distinction between 35(a) and 35(b) is critical for Otis Phillips
because his motion was filed seven years after his sentence was originally
imposed. The Delaware Supreme Court has held that a sentence is illegal:
when the sentence imposed exceeds the statutorily authorized limits, violates the Double Jeopardy Clause, 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.9
6 Del. Super. Ct. Crim. R. 35 (a). 7 State v. Serfuddin El, 2009 WL 74128, at *1 (Del. Super. Ct.) citing DEL.SUPER. CT.CRIM. R. 35(b); Walley v. State, 2007 WL 135615 at *1 (Del.) (holding that a claim that the trial court improperly failed to hold a separate hearing to determine habitual offender status was equivalent to a claim that the sentence was imposed in an illegal manner and, therefore, was required to be asserted within 90 days of sentencing.). 8 Id. 9 Wilson v. State, 2006 WL 1291369 at *3 (Del.2006) (quoting Brittingham v. State, 705 A.2d 577, 578 (Del.1998)). 13. Otis Phillips asserts that his sentence is an illegal sentence. Thus, there is
no applicable time bar under Rule 35(a). Therefore, the Court may consider
Otis Phillips’ Motion on the merits.
14. Otis Phillips asserts his modified sentence of life term pursuant to 11 Del.
C. § 4209 is incorrect as a matter of fact and as a matter of law according
to Delaware Supreme Court ruling in Rauf v. State.10
15. First, Otis Phillips asserts that his rights under the Eighth and Fourteenth
Amendment have been violated because 11 Del. C. § 4209 was declared
unconstitutional, and the legislature did not provide for an alternative
sentence. However, Rauf does not address whether an alternative life-
without parole sentence could be severed from the capital sentencing
scheme.11 Instead, Powell v. State is the applicable law in which the
Supreme Court of Delaware held a petitioner’s death penalty could be
restored to a lesser sentence of life without parole, if the death penalty were
to be invalidated.12 Thus, Otis Phillips’ death sentence, which was vacated
10 Rauf v. State, 145 A.3d 430 (Del. 2016). 11 Zebroski v. State, 179 A.3d 855, 859 (Del. 2018) citing Rauf v. State, 145 A.3d 430 (Del. 2016). 12 Powell v. Delaware, 153 A.3d 69 (Del. 2016). under Rauf 13and Powell,14 and his resentence in the alternative to life
without parole does not abrogate Otis Phillips’ constitutional rights.
16. Second, Otis Phillips contends the Court did not conduct a sentencing
hearing in accord with § 4209(b)(2). However, a defendant’s presence is
not always necessary when a sentence is corrected.15 On May 17, 2017,
this Court modified Phillips’ death sentence for murder in the first degree
to a life term pursuant to § 4209(b)(2). The Supreme Court of Delaware,
in Powell v. State held the death penalty unconstitutional, which converted
all death sentences to life without parole and eliminated the need for
individual hearings to modify sentences.16 Thus, in accordance with
Powell v. State, Otis Phillips is not entitled to a hearing for a modification
of his death sentence to a life term.
17. Third, Otis Phillips contends his Fourteenth Amendment rights have been
violated because of “an ex post facto sentencing scheme within 11 Del. C.
§ 4209” and the Court’s disproportionate sentence. As previously stated in
the above, Otis Phillips Fourteenth Amendment rights have not been
violated because Powell v. State only invalidates the death penalty
13 Rauf, 145 A.3d 430. 14 Powell, 153 A.3d 69. 15 Gibbs v. State, 229 A.2d 502, 504 (Del. Super. Ct. 1967); See also Super.Ct.Crim.R. 36. Compare Super.Ct.Crim.R. 35. 16 Powell, 153 A.3d 69. provision of § 4209 and does not abrogate a resentence to a life term
thereafter.17 Thus, Otis Phillips’ resentence to a life term does not abrogate
his constitutional rights.
CONCLUSION
Therefore, for the reasons stated above, the Defendant’s Motion for
Postconviction Relief is DENIED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.
17 Powell, 153 A.3d 69.