Damiani-Melendez v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

PABLO DAMIANI-MELENDEZ, §
§ No. 481, 2023
Defendant Below, §
Appellant, § Court Below–Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1012004307A (N)
STATE OF DELAWARE, §
§
Appellee. §

Submitted: March 4, 2024
Decided: May 20, 2024

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

After consideration of the appellant’s opening brief, the appellee’s motion to

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

(1) Pablo Damiani-Melendez appeals the Superior Court’s denial of his

motion for correction of illegal sentence. The State has filed a motion to affirm the

judgment below on the ground that it is manifest on the face of Damiani-Melendez’s

opening brief that his appeal is without merit. We agree and affirm.

(2) In December 2010, Damiani-Melendez was arrested and charged with

more than one hundred felonies related to twelve armed robberies and two attempted

armed robberies of retail stores located in New Castle County over a three-month

period in 2010. Following a nine-day jury trial, Damiani-Melendez was found guilty
of eighteen counts of first-degree robbery, eight counts of attempted first-degree

robbery, thirty-three counts of possession of a firearm during the commission of a

felony, eleven counts of wearing a disguise during the commission of a felony, six

counts of aggravated menacing, six counts of second-degree conspiracy, and one

count of first-degree reckless endangering. On March 2, 2012, the Superior Court

sentenced Damiani-Melendez to an aggregate of 297 years of incarceration. We

affirmed Damiani-Melendez’s convictions and sentence on appeal.1

(3) In 2015, Damiani-Melendez, with the assistance of counsel, filed a

motion for postconviction relief. The Superior Court denied the motion,2 and we

affirmed its denial on appeal.3

(4) In May 2023, Damiani-Melendez filed a motion for correction of illegal

sentence under Superior Court Criminal Rule 35(a). In support of his motion,

Damiani-Melendez argued that the Double Jeopardy Clause and legislative intent

preclude him from being convicted of (and sentenced for) more than one robbery

arising out of a single incident. The Superior Court denied the motion,4 and this

appeal followed.

1
Damiani-Melendez v. State, 55 A.3d 357 (Del. 2012).
2
State v. Damiani-Melendez, 2015 WL 9015051 (Del. Super. Ct. Nov. 25, 2015).
3
Damiani-Melendez v. State, 2016 WL 2928891 (Del. May 13, 2016).
4
State v. Melendez, 2023 WL 8281151 (Del. Super. Ct. Nov. 30, 2023).

2
(5) We review the denial of a motion for correction of illegal sentence for

abuse of discretion.5 To the extent a claim involves a question of law, we review the

claim de novo.6 A sentence is illegal if it exceeds statutory 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 its substance, or is a sentence that the judgment of

conviction did not authorize.7

(6) On appeal, Damiani-Melendez argues, as he did below, that his

sentences violate the Double Jeopardy Clause and run afoul of legislative intent

because he received more than one sentence for the robbery of each store. More

specifically, Damiani-Melendez argues that the “single-theft rule”8 precludes his

convictions and sentencing for multiple robbery counts arising from the robbery of

one store because his actions constituted a continuous course of conduct for which

he may only be punished once. Damiani-Melendez also argues that his sentences

5
Fountain v. State, 2014 WL 4102069, at *1 (Del. Aug. 19, 2014).
6
Id.
7
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
8
See Parker v. State, 201 A.3d 1181, 1189 (Del. 2019) (explaining that “[i]n the theft context, …
where property belonging to different owners is taken at the same time and place as a single or
continuous act or transaction, that taking constitutes a single criminal offense” under the
multiplicity doctrine).

3
for aggravated menacing must merge with his sentences for first-degree robbery.

We find no merit to Damiani-Melendez’s arguments.

(7) “[I]t is well-settled law that a defendant may be separately charged and

punished for multiple counts of robbery occurring during a single episode of robbery

when there are multiple victims involved.”9 We recently reaffirmed this rule.10 We

note that, contrary to Damiani-Melendez’s claim on appeal, robbery is not a property

crime. “Robbery is a violent crime against the person of the victim. Therefore, the

multiplicity doctrine implications applicable to robbery are more akin to those

arising in sexual assault cases than in cases involving property-oriented crimes.”11

Simply put, Damiani-Melendez’s convictions and sentences for multiple robbery

counts when there were multiple victims involved neither violate the Double

Jeopardy Clause nor run afoul of legislative intent.

(8) We review Damiani-Melendez’s argument that his aggravated

menacing charges should have merged with his robbery charges for plain error

9
Elder v. State, 1996 WL 145812, at *2 (Del. Mar. 8, 1996); see Neal v. State, 3 A.3d 222, 224
(Del. 2010) (affirming a defendant’s convictions for robbery counts involving store owners where
the defendant intimidated the store owners before taking the store’s money from other employees).
10
Yelardy v. State, 2024 WL 1954299 (Del. May 2, 2024) (affirming the Superior Court’s denial
of a defendant’s motion for correction of illegal sentence where the defendant had been convicted
of four counts of first-degree robbery stemming from a single bank robbery involving four bank
tellers).
11
Washington v. State, 836 A.2d 485, 489 (Del. 2003) (upholding a defendant’s two convictions
for first-degree robbery that involved the same victim and took place almost contemporaneously
because the evidence showed that the defendant had formed separate intents to commit the
robberies).

4
because he did not raise it in the Superior Court in the first instance. 12 There is no

plain error here. It is true that a defendant’s convictions for first-degree robbery and

aggravated menacing merge when they involve the same victim and take place

during the same occurrence.13 But not so here, where the conduct that formed the

basis for Damiani-Melendez’s aggravated menacing charges either involved a

different victim or took place during a different occurrence than conduct that formed

the basis for his first-degree robbery convictions.

NOW, THEREFORE, IT IS HEREBY ORDERED that the motion to affirm

be GRANTED and the judgment of the Superior Court be AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura
Justice

12
Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for
review; provided, however, that when the interests of justice so require, the Court may consider
and determine any question not so presented.”).
13
Poteat v. State, 840 A.2d 599, 606 (Del. 2003) (holding that a defendant’s convictions for first-
degree robbery and aggravated menacing must be merged when they involve the same victim and
take place during the same occurrence).

5