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[T] Timmons v. State9/23/2003
Submitted: July 11, 2003
ORDER
This 23rd day of September 2003, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, Huey Timmons, filed an appeal from the Superior Court's January 23, 2003 order denying his motion for post-conviction relief pursuant to Superior Court Criminal Rule 61 and his motion for correction of an illegal sentence pursuant to Superior Court Criminal Rule 35. We find no merit to the appeal. Accordingly, we AFFIRM.
(2) In October 2001, Timmons was indicted on three counts of Robbery in the Second Degree and one count of Wearing a Disguise During the Commission of a Felony. In June 2002, Timmons pleaded guilty to a single count each of second degree robbery and wearing a disguise. He was sentenced on those charges to a total of 8 years incarceration at Level V, to be suspended after 6 years for decreasing levels of probation.
(3) In this appeal, Timmons claims that: a) his sentence is illegal because it exceeds the sentence agreed to in the plea agreement as well as the Truth in Sentencing ("TIS") guidelines; b) his guilty plea was coerced because the prosecutor and defense counsel led him to believe the TIS guidelines would be followed and the judge failed to establish that he understood the nature of the plea and its consequences; and c) his counsel provided ineffective assistance by failing to investigate mitigating evidence with respect to his character and background and by failing to explain fully the nature of the charges to which he was pleading guilty.
(4) 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-imposed 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.'"
(5) Timmons does not contend that his sentences exceed the statutorilyimposed limits, violate double jeopardy, or are ambiguous or contradictory. All of his claims regarding his sentences implicate the proceedings leading up to the imposition of the sentences. As such, he is not entitled to relief pursuant to Rule 35(a). Even if viewed on their merits, Timmons' claims regarding his sentences are unavailing, since the TIS guidelines are voluntary and non-binding and the record does not reflect that the State breached any promise with respect to Timmons' sentences.
(6) Timmons' next claim, that his plea was involuntary, is refuted by the record. While Timmons checked the box on his guilty plea form indicating that he had been promised a specific sentence, the transcript of the plea colloquy clearly reflects that Timmons understood that the State had made no promise concerning his sentence, that the State was not recommending any particular sentence, that he was facing two possible 5-year sentences, and that neither a sentence recommendation by the State nor the TIS guidelines would bind the Court in passing sentence. The transcript reflects that Timmons understood the nature of the plea and its consequences, understood that he was waiving his right to an appeal, was satisfied with the representation provided by his counsel, and he knowingly a
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