State v. Anderson ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) I.D. No. 1502004898
)
LAMARR ANDERSON, )
Defendant. )
Submitted: October 27, 2021
Decided: December 6, 2021
ORDER
Upon the pro se Defendant Lamarr Anderson’s Motion for Correction of Sentence
Pursuant to Criminal Rule 35(a),
DENIED.
This 6th day of December, 2021, upon consideration of the pro se Defendant
Lamarr F. Anderson’s Motion for Correction of Sentence pursuant to Superior Court
Criminal Rule 35(a) (D.I. 43), his supplemental letter thereto (D.I. 47), the State’s
Response (D.I. 45), and the record in this matter, it appears to the Court that:
(1) Defendant Lamarr F. Anderson pleaded guilty to Possession with Intent
to Deliver Marijuana, a felony conviction, in 2010.1 In 2012, he pleaded guilty to
Assault in the Second Degree, also a felony conviction.2 And then in this case, on
1
Plea Agreement and TIS Guilty Plea Form, State v. Lamarr F. Anderson, ID No. 1005005628
(Del. Super. Ct. Sept. 13, 2010) (D.I. 11) (this plea was a consolidated disposition that included
charges from ID Nos. 1002010347 and 1003019266).
2
Plea Agreement and TIS Guilty Plea Form, State v. Lamarr F. Anderson, ID No. 1111012677
(Del. Super. Ct. Mar 14, 2012) (D.I. 8).
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December 28, 2016, after a lengthy and thorough plea colloquy, Mr. Anderson was
convicted of Possession of a Firearm by a Person Prohibited (“PFBPP”) and
Carrying a Concealed Deadly Weapon.3 The plea was in exchange for dismissal of
the remaining pending charges and a favorable sentencing recommendation.4
Because the PFBPP was committed after Mr. Anderson had been previously
convicted of at least two separate violent felonies—convictions Mr. Anderson
admitted he had during his plea proceedings5—the Court was required to impose no
less than a minimum ten-year sentence at Level V pursuant to 11 Del. C.
§ 1448(e)(1)(c).6 Mr. Anderson’s sentencing immediately followed the plea
colloquy and the Court imposed the parties’ recommended sentence—the minimum
ten years of imprisonment required, followed by diminishing levels of supervision.7
3
Plea Agreement and TIS Guilty Plea Form, State v. Lamarr F. Anderson, ID No. 1502004898
(Del. Super. Ct. Dec. 28, 2016); see also Tr. of Guilty Plea, State v. Lamarr F. Anderson, ID No.
1502004898 (Del. Super. Ct. Nov. 3, 2021).
4
Plea Agreement, at 1 (“State will agree to cap the recommendation for unsuspended Level 5
time at 10 years”).
5
See e.g., id. at 1 (“Defendant faces 10 years minimum mandatory Level 5 time on the PFBPP
(count 7) based on his 2 prior violent felony convictions. Assault Second Degree 06/29/12;
Possession with Intent to Deliver 11/19/10.”).
6
See DEL. CODE ANN. tit. 11, § 1448(e)(1)(c) (2015) (minimum sentence of ten years at Level
V required if a defendant has been convicted of 2 or more separate violent felonies).
7
Sentencing Order, State v. Lamarr F. Anderson, ID No. 1502004898 (Del. Super. Ct. Dec. 28,
2016).
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PROCEDURAL HISTORY
(2) Two months after that sentencing, Mr. Anderson filed his first Motion
for Modification of Sentence pursuant to Criminal Rule 35(b).8 After a review of
that motion on its merits, it was denied.9
(3) A year later, Mr. Anderson filed his second Motion for Modification of
Sentence pursuant to Rule 35(b).10 The Court denied the motion as a repetitive
request that just echoed the first Rule 35(b) motion.11
(4) Now before the Court is Mr. Anderson’s third Rule 35 application—a
Motion for Correction of Sentence seeking to invoke Superior Court Criminal Rule
35(a).12 Mr. Anderson appears to allege two separate bases for his motion. First,
Mr. Anderson contends he is serving an illegal sentence because the charging
language in his indictment that outlines the PFBPP count includes just one prior
felony conviction when alleging the basis of his person prohibited status. This
“defect” he believes renders his sentence under 11 Del. C. § 1448(e)(1)(c) invalid.13
8
Def.’s 1st Rule 35(b) Mot. (D.I. 39).
9
State v. Lamarr F. Anderson, ID No. 1502004898 (Del. Super. Ct. Feb. 28, 2017) (order
denying first motion to reduce sentence) (D.I. 40).
10
Def.’s 2nd Rule 35(b) Mot. (D.I. 41).
11
State v. Lamarr F. Anderson, ID No. 1502004898 (Del. Super. Ct. Feb. 16, 2018) (order
denying second motion to reduce sentence) (D.I. 42).
12
Def.’s Rule 35(a) Mot. for Correction of Sentence, Sept. 17, 2021 (D.I. 43).
13
Id. at ¶ 13.
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So, according to Mr. Anderson, he should instead be serving only a five-year
minimum because his sentence was improperly enhanced by a second predicate
felony conviction that was not included in the PFBPP charging language.14 And
second, Mr. Anderson argues that the Court “did not make the requisite inquiry on
the record into the factual basis for the statutorily enhanced penalty.”15
STANDARD OF REVIEW
(4) Criminal Rule 35(a) permits this Court to correct an illegal sentence “at
any time.”16 Relief under Rule 35(a) is available when, inter alia, the sentence
imposed: exceeds the statutorily-authorized limits; 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.17
DISCUSSION
A. THE COURT DID FULLY EXAMINE THE TWO PRIOR VIOLENT FELONY
CONVICTIONS THAT SUPPORT MR. ANDERSON’S ENHANCED SENTENCE.
(5) Mr. Anderson’s contention that the Court failed to properly inquire into
the basis for his enhanced § 1448(e)(1)(c) sentence is belied by the record. This
14
Id. at ¶¶ 16-17.
15
Id. (emphasis in original).
16
Super. Ct. Crim. R. 35(a) (“Correction of sentence. -- The court may correct an illegal sentence
at any time . . .”).
17
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
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Court ensured Mr. Anderson understood the basis and terms of his guilty plea during
his plea colloquy—including his sentencing exposure.18 Indeed, the Court and
Mr. Anderson had a lengthy discussion about the predicate felonies supporting the
enhanced PFBPP penalty that Mr. Anderson knew he then faced:
THE COURT: Do you understand that because of your prior felony
convictions, that you face a minimum of ten years
for the Possession of a Firearm by a Person
Prohibited?
MR. ANDERSON: That’s what I don’t understand.
THE COURT: Okay. Tell me why you don’t understand that.
MR. ANDERSON: For the simple fact that saying I have two prior
violent felonies, I think I only have one violent
felony which is Assault Second. . . . They are saying
my drug charge is violent. I am hearing from other
lawyers that my drug charge is not violent.
THE COURT: Well, you pled guilty to Possession with Intent to
Deliver in 2010, correct?
MR. ANDERSON: Yes.
THE COURT: Okay. In 2015 is when you committed the act we
just talked about, correct?
MR. ANDERSON: Yes.
THE COURT: At that time Possession with Intent to Deliver was a
violent felony, still classified as a violent felony
when you committed the act. If it is classified as a
violent felony when you commit the act, that’s what
18
See generally Tr. of Guilty Plea, Dec. 28, 2016 (D.I. 46).
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counts. If there’s a change in the law afterwards,
that doesn’t apply to you. Do you understand that?
MR. ANDERSON: Yes.
THE COURT: So do you understand that because you have that
Assault in the Second Degree, which occurred in
2012, because you have a Possession with Intent to
Deliver, that happened in 2010, those were two
prior violent felony convictions that you had. You
understand that?
MR. ANDERSON: Yes.
THE COURT: In 2015, when you decided to possess that firearm,
you were a person with two violent felonies on your
record when you possessed the firearm. Do you
understand that?
MR. ANDERSON: Yes.
THE COURT: Because of that, you face a minimum of ten years
imprisonment. Do you understand that?
MR. ANDERSON: Yes.19
(6) Too, when Mr. Anderson later questioned the 10-year minimum
requirement, the Court again explained—three more times—that his predicate
felonies and the current charges required the Court to impose at least ten years—it
19
Tr. of Guilty Plea, 18-20 (emphasis added).
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could impose more, but no less.20 And again, Mr. Anderson confirmed that he
understood.21
(7) The plain language of § 1448(e)(1)(c) required the Court to impose a
minimum sentence of “[t]en years at Level V, if the person has been convicted on
2 or more separate occasions of any violent felony.”22 Here, Mr. Anderson’s two,
separate, prior felony charges were (1) Possession with Intent to Deliver Marijuana
and (2) Assault in the Second Degree. Each of those crimes were classified as a
violent felony under Delaware law extant when Mr. Anderson committed the present
PFBPP.23 And so, the Court addressed each with Mr. Anderson—who
acknowledged and admitted each—and accurately explained that it was statutorily
required to impose no less than ten years of incarceration because of them.24
20
Id. at 20-21. Mr. Anderson again answered affirmatively to the Court’s follow-up inquiry that
he understood his sentencing exposure: “So you understand, right here, right now, that your
sentencing exposure is every single day of ten years up to 23?” Id. at 27.
21
Id. at 20-22.
22
DEL. CODE ANN. tit. 11, § 1448 (e)(1)(c) (Possession and purchase of deadly weapons by
persons prohibited; penalties).
23
See DEL. CODE ANN. tit. 11, § 4201(c) (2015) (listing Possession with Intent to Deliver a
Controlled Substance and Assault in the Second Degree as violent felonies); see also Butcher v.
State, 171 A.3d 537, 543-44 (Del. 2017) (“[T]he definition of ‘violent felony’ as that term is used
in Section 1448(e) is controlled by the version of Section 4201(c) in effect at the time [an offender]
committed [PFBPP].”)
24
Tr. at 15-16, 19-20.
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B. THE CHARGING LANGUAGE OF A PFBPP COUNT NEED NOT INCLUDE ALL
PRIOR CONVICTIONS THAT MIGHT ENHANCE ONE’S SENTENCE.
(8) Mr. Anderson also insists that it is necessary to allege in a PFBPP
indictment all prior felony convictions that might subject the defendant to enhanced
penalties under 11 Del. C. § 1448(e)(1)(c). Not so.
(9) Not only has Mr. Anderson failed to cite any case law or statutory
authority supporting his contention, but other courts addressing like arguments have
held that indictments need not mention prior convictions to trigger the imposition of
a statutorily enhanced penalty. For example, the United States Supreme Court in
Almendarez-Torres v. United States held that an indictment charging illegal reentry
didn’t need to include an offender’s prior felony convictions for the statutory
maximum penalty to be applicable because the relevant subsection of the governing
statue “is a penalty provision, which simply authorizes an enhanced sentence.”25 So
while “an indictment must set forth each element of the crime that it charges. . . . it
need not set forth factors relevant only to the sentencing of an offender found guilty
of the charged crime.”26 Following Almendarez-Torres, the First Circuit in United
States v. Jimenez-Banegas held that federal defendant’s one-count indictment did
not have to mention his prior aggravated felony conviction for him to be subject to
25
523 U.S. 224, 224 (1998). The purpose of this sentencing statute’s enhancement was to address
recidivism—which “is as typical a sentencing factor as one might imagine.” Id. at 256.
26
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an enhanced sentence.27 And finally, in United States v. McGatha, the Eleventh
Circuit held that § 924(e)(1) of the Armed Criminal Career Act—the federal analog
to Delaware’s PFBPP statute—was a mere sentencing enhancement provision aimed
at those with three or more prior felony convictions who are subsequently convicted
of unlawful possession of a firearm.28 And so, the court held, a defendant’s prior
felony conviction(s) did not have to be enumerated in the indictment or proved
beyond a reasonable doubt at trial as such prior convictions “are relevant only for
recidivist sentencing.”29
CONCLUSION
(10) Mr. Anderson is not serving an illegal sentence. The Court imposed
the statutorily required minimum sentence of ten years at Level V because
Mr. Anderson had previously been convicted of two violent felonies—Assault in the
Second Degree and Possession with Intent to Deliver. Indeed, Mr. Anderson
acknowledged his two prior felony convictions during his plea colloquy and
understood the basis of his sentence. There simply is no requirement that his
indictment include each of his previous felony convictions that might aggravate his
27
790 F.3d 253 (1st Cir. 2015). Just as Mr. Anderson did here, that federal defendant
acknowledged his prior conviction and that it was for an aggravated felony that triggered the
enhanced sentencing for his federal charges. Id. at 256.
28
891 F.2d 1520 (11th Cir. 1990) (citing 18 U.S.C. § 924(e)(1)).
29
McGatha, 891 F.2d at 1527.
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sentence for the Court to impose the term mandated by
11 Del. C. § 1448(e)(1)(c). In turn, Mr. Anderson’s motion for correction of his
sentence brought under Criminal Rule 35(a) must be DENIED.
IT IS SO ORDERED.
Paul R. Wallace, Judge
Original to Prothonotary
cc: Mr. Lamarr F. Anderson, pro se
Dianna A. Dunn, Deputy Attorney General
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