State v. Phillips

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THE STATE OF DELAWARE )
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v. )
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OTIS PHILLIPS, ) Case No.: 1210013321
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Defendant. )
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)

Date Submitted: October 10, 2024
Date Decided: November 15, 2024

Upon hearing Defendant’s Motion for Post Conviction Relief. DENIED.

ORDER

Andrew J. Vella, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attorney for the State of Delaware.

Otis Phillips, Pro Se.

SCOTT, J.
This 15th day of November 2024, upon consideration of Defendant’s Motion for
Postconviction Relief pursuant to Superior Court Criminal Rule 61 it appears that:

1. Otis Phillips (“Phillips”) has filed a second pro se Motion for

Postconviction Relief, pursuant to Superior Court Criminal Rule 61. For

the reasons set forth below, Phillips’ Motion is DENIED.

2. After a 21 day trial, Otis Phillips was convicted of the following charges;

murder in the first degree, manslaughter (as a lesser-included offense of

murder in the first degree), murder in the second degree ( as a lesser-

included offense of first degree murder), gang participation, conspiracy in

the first degree, five counts of possession of a firearm during the

commission of a felony, assault second degree (as a lesser included offense

of attempted murder in the first degree), and assault third degree.

3. The Court sentenced Otis Phillips to death for murder in the first degree,

life imprisonment for murder in the second degree, and 130 years of

incarceration for the remaining offenses. Otis Phillips appealed, and the

Delaware Supreme Court affirmed his convictions on January 17, 2017.

4. The Supreme Court of Delaware remanded the case for resentencing in

light of its decision in Rauf v. State1, declaring portions of the Delaware’s

death penalty statue unconstitutional.

1
Rauf v. State, 145 A.3d 430 (Del. 2016).
5. On May 17, 2017, the Superior Court of Delaware modified Phillips’ death

sentence for murder first degree to a life term pursuant to 11 Del. C. §

4209.

6. On March 6, 2017, Otis Phillips, acting pro se, filed his first Motion for

Postconviction Relief for Ineffective Assistance of Trial Counsel. The

Superior Court of Delaware denied the Motion on November 20, 2019.

Otis Phillips appealed, and the Delaware Supreme Court affirmed the

denial of his post-conviction motion on July 21, 2020.

7. Now, Otis Phillips filed a Second Motion for Post Conviction Relief

pursuant to Delaware Superior Court Criminal Rule 61 asserting that the

Delaware Supreme Court Case Rauf v. State2 renders his conviction of life

imprisonment unlawful.

8. Otis Phillips’ Second Rule 61 Motion for Post Conviction Relief is brought

before this Court under three grounds: (1) Phillips’ rights under the Eighth

and Fourteenth Amendments have been violated because 11 Del. C. § 4209

was declared unconstitutional, and the legislature did not provide for an

alternative sentence; (2) Phillips’ has been denied due process because the

Court did not conduct a sentencing hearing in accord with § 4209(b)(2);

and (3) Phillips’ Fourteenth Amendment rights have been violated because

2
Id.
of “an ex post facto sentencing scheme within 11 Del. C. § 4209 …” and

the Court’s “disproportionate” sentence.

9. Delaware Superior Court Criminal Rule 61 “governs the procedure on an

application by a person in custody under a sentence of this Court seeking

to set aside judgement of conviction or a sentence of death on the ground

that the court lacked jurisdiction or any other ground that is sufficient

factual and legal basis for a collateral attack on a criminal conviction or

capital sentence.”3 Further, “the remedy afforded by this rule may not be

sought by a petition for a writ of habeas corpus or in any manner other than

as provided herein.”4

10. Otis Phillips’ claim seeks a correction of an alleged illegal sentence and

does not set aside or collaterally attack the conviction. A post-conviction

motion that seeks to correct a sentence and does not seek to set aside or

collaterally attack a conviction should be raised under Delaware Superior

Court Criminal Rule 35 (“Rule 35”).5

3
Del. Super. Ct. Crim. R. 61.
4
Del. Super. Ct. Crim. R. 61.
5
Wilson v. State, 900 A.2d 102 (Del. 2006); State v. Serfuddin El, 2009 WL 74128,
at *1 (Del. Super. Ct.) (A motion to attack the legality of the sentence is properly
considered under Delaware Superior Court Criminal Rule 35).
11. Rule 35(a) provides “the court may correct an illegal sentence at any time

and may correct a sentence imposed in an illegal manner within the time

period provided herein for the reduction of sentence.”6 Rule 35(b) provides

no time bar for challenging an ‘illegal sentence,’ but does impose a time

bar of 90 days in the absence of “extraordinary circumstance,”7 for

challenging a “sentence imposed in an illegal manner.”8

12. The distinction between 35(a) and 35(b) is critical for Otis Phillips

because his motion was filed seven years after his sentence was originally

imposed. The Delaware Supreme Court has held that a sentence is illegal:

when the sentence imposed exceeds the statutorily
authorized 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 the
substance of the sentence, or is a sentence which the
judgment of conviction did not authorize.9

6
Del. Super. Ct. Crim. R. 35 (a).
7
State v. Serfuddin El, 2009 WL 74128, at *1 (Del. Super. Ct.) citing DEL.SUPER.
CT.CRIM. R. 35(b); Walley v. State, 2007 WL 135615 at *1 (Del.) (holding that a
claim that the trial court improperly failed to hold a separate hearing to determine
habitual offender status was equivalent to a claim that the sentence was imposed in
an illegal manner and, therefore, was required to be asserted within 90 days of
sentencing.).
8
Id.
9
Wilson v. State, 2006 WL 1291369 at *3 (Del.2006) (quoting Brittingham v.
State, 705 A.2d 577, 578 (Del.1998)).
13. Otis Phillips asserts that his sentence is an illegal sentence. Thus, there is

no applicable time bar under Rule 35(a). Therefore, the Court may consider

Otis Phillips’ Motion on the merits.

14. Otis Phillips asserts his modified sentence of life term pursuant to 11 Del.

C. § 4209 is incorrect as a matter of fact and as a matter of law according

to Delaware Supreme Court ruling in Rauf v. State.10

15. First, Otis Phillips asserts that his rights under the Eighth and Fourteenth

Amendment have been violated because 11 Del. C. § 4209 was declared

unconstitutional, and the legislature did not provide for an alternative

sentence. However, Rauf does not address whether an alternative life-

without parole sentence could be severed from the capital sentencing

scheme.11 Instead, Powell v. State is the applicable law in which the

Supreme Court of Delaware held a petitioner’s death penalty could be

restored to a lesser sentence of life without parole, if the death penalty were

to be invalidated.12 Thus, Otis Phillips’ death sentence, which was vacated

10
Rauf v. State, 145 A.3d 430 (Del. 2016).
11
Zebroski v. State, 179 A.3d 855, 859 (Del. 2018) citing Rauf v. State, 145 A.3d
430 (Del. 2016).
12
Powell v. Delaware, 153 A.3d 69 (Del. 2016).
under Rauf 13and Powell,14 and his resentence in the alternative to life

without parole does not abrogate Otis Phillips’ constitutional rights.

16. Second, Otis Phillips contends the Court did not conduct a sentencing

hearing in accord with § 4209(b)(2). However, a defendant’s presence is

not always necessary when a sentence is corrected.15 On May 17, 2017,

this Court modified Phillips’ death sentence for murder in the first degree

to a life term pursuant to § 4209(b)(2). The Supreme Court of Delaware,

in Powell v. State held the death penalty unconstitutional, which converted

all death sentences to life without parole and eliminated the need for

individual hearings to modify sentences.16 Thus, in accordance with

Powell v. State, Otis Phillips is not entitled to a hearing for a modification

of his death sentence to a life term.

17. Third, Otis Phillips contends his Fourteenth Amendment rights have been

violated because of “an ex post facto sentencing scheme within 11 Del. C.

§ 4209” and the Court’s disproportionate sentence. As previously stated in

the above, Otis Phillips Fourteenth Amendment rights have not been

violated because Powell v. State only invalidates the death penalty

13
Rauf, 145 A.3d 430.
14
Powell, 153 A.3d 69.
15
Gibbs v. State, 229 A.2d 502, 504 (Del. Super. Ct. 1967); See also
Super.Ct.Crim.R. 36. Compare Super.Ct.Crim.R. 35.
16
Powell, 153 A.3d 69.
provision of § 4209 and does not abrogate a resentence to a life term

thereafter.17 Thus, Otis Phillips’ resentence to a life term does not abrogate

his constitutional rights.

CONCLUSION

Therefore, for the reasons stated above, the Defendant’s Motion for

Postconviction Relief is DENIED.

IT IS SO ORDERED.

/s/ Calvin L. Scott

Judge Calvin L. Scott, Jr.

17
Powell, 153 A.3d 69.