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[T] Fisher v. State2/28/2000
Submitted: December 30, 1999
ORDER
This 28th day of February 2000, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, James Fisher ("Fisher"), appeals from an order of the Superior Court denying his motion to correct sentence pursuant to Superior Court Criminal Rule 35(a) ("Rule 35(a)"). We find that the Superior Court had authority to sentence Fisher to a 5-year term at Level V, but committed error in sentencing Fisher to successive probationary periods that could cause the sentence to exceed the 5-year maximum statutory penalty.
Accordingly, we AFFIRM IN PART and REVERSE IN PART.
(2) In this appeal, Fisher claims his sentence exceeded the statutory authorization and violated the terms of his plea agreement with the State. He asks that his sentence be corrected accordingly. Fisher contends that " ursuant to the Laws governing D.U.I." he is guaranteed a good-time credit of 18 months on a 5-year prison term. Thus, he contends, the Superior Court had the authority to sentence him to a prison term of no more than 3 years and 6 months. Fisher also contends his plea agreement guaranteed a prison term of no more than 3 years and 6 months. Finally, Fisher contends that his sentence exceeded the maximum penalty permitted under law since, upon completion of the Key Program and his Level IV, Level III and Level II probation, he conceivably could serve as much as a 6½-year sentence.
(3) Fisher pleaded guilty to 1 count of driving under the influence of alcohol ("DUI"). He was sentenced as a repeat offender to 5 years in prison at Level V, with credit for time served. After serving 3 years and 6 months at Level V, Fisher was to enter and successfully complete the Key Program at which time the balance of the Level V sentence would be suspended for 1 year in the Level IV Aftercare Program, after which the remainder of the sentence would be suspended for 1 year of probation at Level III, to be followed by an additional year of probation at Level II. Fisher did not file a direct appeal of his sentence or conviction.
(5) Rule 35(a) permits the Superior Court to correct an illegal sentence "at any time." "The 'narrow function of Rule 35 is to permit correction of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence.'" "Relief under Rule 35(a) is available 'when the sentence imposed exceeds the statutorily- authorized limits, violates the Double Jeopardy Clause . . . .'" "A sentence is also illegal if it '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.'"
(6) Fisher's contention that the Superior Court had authority to sentence him to a prison term of no more than 3 years and 6 months is without merit. The statute governing penalties for DUI authorizes a prison term of "not less than 2 years nor more than 5 years" for a fourth offense. There is no provision in the DUI statute that mandates 18 months of good-time credit for a 5-year prison sentence. Fisher's contention that his plea agreement mandates a prison term of 3 years and 6 months is also without merit. The plea agreement indicates only that the State recommended Fisher's 5-year Level V prison term be suspended for the Key Program and probation after 3 years and 6 months. A recommendation by the State for a particular sentence is not binding on the Superior Court.
(7) Fisher is correct, h
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