Thomas v. State

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ELIJAH M. THOMAS, § § No. 212, 2021 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID No. 1809016162 (N) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: August 25, 2021 Decided: October 7, 2021

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

ORDER

Upon consideration of the appellant’s opening brief, the State’s motion to

affirm, and the record below, it appears to the Court that:

(1) The appellant, Elijah M. Thomas, filed this appeal from the Superior

Court’s denial of his motion for modification of sentence for an offense committed

as a juvenile. The State of Delaware has filed a motion to affirm the judgment below

on the ground that it is manifest on the face of Thomas’s opening brief that his appeal

is without merit. We agree and affirm.

(2) In December 2018, a grand jury indicted Thomas for multiple weapon

offenses he committed on September 29, 2018. On April 9, 2019, Thomas pleaded

guilty to possession of a firearm by a person prohibited (“PFBPP”) in exchange for dismissal of the other charges. In the plea agreement, Thomas agreed that he was

subject to sentencing as an habitual offender under 11 Del. C. § 4214 and a fifteen-

year minimum mandatory sentence. After granting the State’s motion to declare

Thomas an habitual offender under Section 4214(a) and (c), the Superior Court

sentenced Thomas to twenty years of Level V incarceration, suspended after fifteen

years.

(3) On May 3, 2021, Thomas filed a motion for sentence modification

pursuant to Superior Court Criminal Rule 35A. The Superior Court denied the

motion, ruling that it could not reduce the fifteen-year minimum mandatory

sentence. This appeal followed.

(4) We review the Superior Court’s denial of a motion for modification of

sentence for abuse of discretion.1 To the extent the claim involves a question of law,

we review the claim de novo.2 On appeal, Thomas argues that the Superior Court

did not comply with Rule 35A. He also argues that the Superior Court failed to

consider his claims that sentence modification was warranted by the COVID-19

pandemic. Thomas does not raise the other arguments he made in the Superior Court

and has therefore waived consideration of those claims.3

1 State v. Culp, 152 A.3d 141, 144 (Del. 2016). 2 Id. 3 Supr. Ct. R. 14(b)(vi)(A)(3) (“The merits of any argument that is not raised in the body of the opening brief shall be deemed waived and will not be considered by the Court on appeal.”); Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993) (holding failure to raise a legal issue in the text of the opening brief generally constitutes a waiver of that claim on appeal). 2 (5) As an initial matter, Thomas was not eligible for sentence modification

under Rule 35A. Rule 35A establishes the procedures for sentence modification

under 11 Del. C. § 4204A, “which provides a mechanism to reassess a lengthy

sentence imposed for an offense committed as a juvenile.”4 Section 4204A(d)(1)

and Rule 35A(b)(4) permit an offender sentenced to more than twenty years of

incarceration for an offense committed before his eighteen birthday to petition for

sentence modification after serving twenty years of the original Level V sentence.

(6) According to the Superior Court docket and record, Thomas was

nineteen at the time he committed the crime of PFBPP. In addition, Thomas was

not sentenced to more than twenty years of incarceration and has not served twenty

years of incarceration for that crime. He thus did not qualify for sentence

modification under Section 4204A and Rule 35A.

(7) As to Thomas’s allegations concerning the risks of COVID-19 to

inmates, the Superior Court correctly recognized that it could not reduce Thomas’s

fifteen-year minimum mandatory sentence.5 The Superior Court did not err

therefore in denying Thomas’s motion for sentence modification.

4 Hunt v. State, 2017 WL 2806903, at *1 (Del. June 28, 2017). 5 See, e.g., State v. Sturgis, 947 A.2d 1087, 1092 (Del. May 6, 2008) (holding the Superior Court could not reduce the mandatory portion of a sentence under Rule 35(b)). 3 NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the Superior Court’s judgment is AFFIRMED.

BY THE COURT:

/s/ James T. Vaughn, Jr. Justice