State v. Shelley

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
) ID No. 9804001318
v. )
)
LEROY SHELLEY, )
)
Defendant. )
)

Submitted: April 23, 2026
Decided: April 28, 2026

Upon Defendant’s Motion Pursuant to Rule 35(a) to Correct an Illegal Sentence
DENIED.

ORDER

Brian J. Robertson, Esquire, Deputy Attorney General, DEPARTMENT OF
JUSTICE, 820 N. French St., Wilmington, Delaware, Attorney for the State of
Delaware.

Leroy Shelley, SBI# 603729, James T. Vaughn Correctional Center, 1181 Paddock
Road, Smyrna, DE 19977, Defendant, pro se.

WHARTON, J.
This 28th day of April 2026, upon consideration of Defendant Leroy Shelley’s

(“Shelley”) current Motion to Correct an Illegal Sentence Pursuant to Rule 35(a),1

and the record in this matter, it appears to the Court that:

1. Shelley was convicted by a jury in 2007 of two counts each of Robbery

First Degree, Kidnapping Second Degree, and Possession of a Firearm During the

Commission of a Felony (“PFDCF”), as well as a single count of Conspiracy Second

Degree. He waived his right to counsel and represented himself at trial. He was

sentenced on March 6, 2008, to 18 ½ years of unsuspended imprisonment followed

by probation. That period of imprisonment was broken down as follows: four years

with no probation to follow on each robbery charge, five years suspended after two

years for probation on each kidnapping charge, three years with no probation to follow

on each PFDCF charge, and six months with no probation to follow on the conspiracy

charge.

2. Shelley did not file a direct appeal. Instead, he has steadily pursued, with

one minor exception, unsuccessful collateral attacks on his conviction and sentences.

First he moved for postconviction relief in 2009. That motion was denied as

procedurally defaulted because Shelley’s claims could have been raised on direct

appeal had he filed one. 2 Shelley’s appeal to the Delaware Supreme Court of that

order was dismissed as untimely. 3 After an unsuccessful attempt at federal habeas

1
D.I. 113.
2
D.I. 28.
3
Shelley v. State, 2010 WL 1627335 (Del. Apr. 21, 2010).
2
corpus relief in 2010, 4 Shelley filed his first attempt to vacate his sentence. That

motion, in which he argued that his re-indictment was defective, causing the court to

lack jurisdiction, was treated as a second postconviction relief motion and was denied

again for procedural default.5 The Delaware Supreme Court affirmed that decision. 6

This Court summarily dismissed his third postconviction relief motion on October 27,

2014. 7 It denied Shelley’s Motion for Modification of Sentence on March 7, 2017.8

The Supreme Court affirmed.9 This Court denied his Petition for a Writ of Habeas

Corpus on April 20, 2017.10 The Supreme Court affirmed. 11 A Motion for Sentence

Clarification was denied on October 6, 2017. 12 The Supreme Court affirmed.13

Shelley’s Motion to Recuse was denied on July 13, 2018. 14 The Supreme Court

dismissed his appeal. 15 A Motion to Vacate Sentence was denied on July 12, 2019.16

A second Motion to Vacate was denied on July 31, 2019. 17 That decision was

affirmed on January 7, 2020.18 His fourth postconviction relief motion was denied by

4
Shelley v. Delaware, 2012 WL 379907 (D. Del. 2012).
5
D.I. 61.
6
Shelley v. State, 53 A.3d 303 (Del. 2012).
7
Shelley v. State, 2014 WL 5713236 (Del. Super. Oct. 27, 2014).
8
D.I. 53.
9
Shelley v. State, 2017 WL 2686551 (Del. Jun. 21, 2017).
10
D.I. 63.
11
Shelley v. State, 2017 WL 3122316 (Del. Jul. 17. 2107).
12
D.I. 66.
13
Shelley v. State, 2018 WL 3173852 (Del. Jun. 26, 2018).
14
D.I. 74.
15
Shelley v. State, 2018 WL 6331623 (Del. Dec. 3, 2018).
16
State v. Shelley, 2019 WL 3248617 (Del. Super. July 12, 2019).
17
State v. Shelley, 2019 WL 3458725 (Del. Super. July 31, 2019).
18
Shelley v. State, 2020 WL 91816 (Del. Jan. 7, 2020).
3
this Court on January 28, 2020.19 That denial was affirmed on June 30, 2020.20 On

March 26, 2021, Shelley filed a Motion for Bail Pending Appeal.21 That motion was

denied on April 5, 2021.22 Shelley did not appeal. On December 4, 2023, this Court

denied his Motion Pursuant to Rule 35 to Correct an Illegal Sentence. 23 That denial

was affirmed on May 13, 2024. 24 On May 20, 2025, this Court denied a similar

Motion to Correct an Illegal Sentence under Rule 35(a). 25 It denied another Motion

to Correct an Illegal Sentence Pursuant to Rule 35(a) on June 12, 2025. 26 That denial

was affirmed on October 27, 2025.27 Another Motion to Correct an Illegal Sentence

was denied on February 13, 2026.28 His most recent Rule 35(a) motion to correct

allegedly illegally imposed fees was granted in part and denied in part on April 14,

2026. 29 He has a postconviction relief motion pending. 30

3. The current motion, again brought under Rule 35(a), alleges that

Shelley’s sentences are illegal because they violate double jeopardy.31 Citing Poteat

19
State v. Shelley, 2020 WL 4911441 (Del. Super. Jan. 28, 2020).
20
Shelley v. State, 2020 WL 2989264 (Jun. 3, 2020).
21
D.I. 96.
22
D.I. 97.
23
State v. Shelley, 2023 WL 8373204 (Del. Super. Ct. Dec. 4, 2023).
24
Shelley v. State, 2024 WL 2148632 (Del. May 13, 2024).
25
D.I. 112.
26
State v. Shelley, 2025 WL 1664001 (Del. Super. Ct. June 12, 2025).
27
Shelley v. State, 2025 WL 3012881 (Del. Oct. 27, 2025).
28
D.I. 128.
29
D.I. 134. (The Court vacated a $70.00 security fee, but left in place two other
relatively small fees).
30
D.I. 125.
31
D.I. 135.
4
v. State,32 and State v. Bridgers, 33 as well as comments made by the trial judge upon

the return of the verdict,34 Shelley contends that his convictions on two counts each

of Robbery First Degree and PFDFC should merge because, quoting the trial judge,

‘“nothing was taken from the two employes’” only the cash register was robbed. 35

4. Pursuant to Criminal Rule 35(a), the Court may correct an illegal

sentence at any time. 36 A sentence is illegal if it violates double jeopardy, 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 that the judgment of conviction

did not authorize.37

5. Shelley misconstrues both cases he cites as well as the trial judge’s

comments. The trial judge made no ruling that the charges should merge, but only

asked the parties to “think about” whether they should. 38 In fact, they should not have

merged. Neither Poteat, nor Bridgers holds otherwise. In Poteat, four masked

gunmen entered a liquor store in Newark.39 In the store at the time were the husband

32
840 A.2d 599 (Del. 2003).
33
988 A.2d 939 (Del. Super. Ct. Oct. 19, 2007) aff’d. sub nom. Stater v. Bridgers,
2009 WL 834536 (Del. May 30, 2009).
34
D.I. 135, at Ex. 1.
35
Id.
36
Super. Ct. Crim. R. 35(a).
37
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
38
Id.
39
Poteat, 840 A.2d at 601.
5
and wife proprietors, their five-year old son, and one customer.40 Upon entering the

store, the four gunman - with their weapons drawn - split up.41 Two went behind the

counter where the wife was standing. 42 One pointed a gun at her chest, the other at

her head, telling her not to “do anything stupid.” 43 They then forced her to open the

cash register and safe. 44 The third and fourth gunmen went to the back of the store.45

One gunman confronted the husband, while the other confronted the customer.46 With

a gun to his head, the husband was forced to lie on the floor while the robber went

through his pockets.47 The customer, too, was forced to lie on the floor, gun to his

head, while he was robbed of some cash in his pockets.48

6. Poteat was convicted of three counts of Robbery in the First Degree,

three counts of PFDCF related to the robbery charges, three counts of Aggravated

Menacing, and three counts of PFDCF related to the menacing charges. 49 At trial,

Poteat requested that the menacing charges and the related PFDCF charges be

merged with the robbery charges and the PFDCF charges related to the robbery.

The trial judge declined to merge the offenses.50

40
Id.
41
Id.
42
Id.
43
Id.
44
Id.
45
Id.
46
Id. at 601-02.
47
Id. at 602.
48
Id.
49
Id. at 601.
50
Id.
6
7. The issue before the Delaware Supreme Court was whether the charges

of Aggravated Menacing merged into the charge of Robbery in the First Degree.51

The Court concluded that the General Assembly intended for Aggravated Menacing

to be a lesser-included offense of Robbery in the First Degree, resulting in the

convictions for those separate crimes during the same occurrence merging.52 The

issue resolved in Poteat – whether Aggravated Menacing is a lesser included offence

of Robbery First Degree - is not the issue Shelley raises here. Shelley argues that

threatening the immediate use of force upon two employees to compel them to give

him the property of their employer constitutes one robbery, not two. Poteat provides

no support for that position.

8. In Bridgers, the other case Shelley cites, the defendants robbed a bank,

taking money from several bank employees and threatening several customers at

gunpoint.53 As the robbery unfolded, one defendant confronted nine customers at

gunpoint.54 The defendants did not take anything from them, but the customers were

held at bay in order to prevent them from interfering in the robbery.55 The jury

convicted on all counts including those related to the customers from whom nothing

was taken. 56 Post-trial, the defendants asked the court to reconsider whether, as a

51
Id. at 603.
52
Id.
53
State v. Bridgers, 988 A.2d at 940.
54
Id.
55
Id.
56
Id.
7
matter of law, threatening a bystander while robbing someone else also makes the

bystander a robbery victim.57 The Court held:

Taking the cases from Delaware and elsewhere into
account, the court assumes that anyone from whom
property is taken by threat or force and anyone actively
involved during a theft-in-progress, such as an arresting
officer or a pursuing homeowner, may be a robbery victim.
The court holds, however, that someone who is merely a
threatened bystander has not been robbed. A threatened
bystander is a victim of the violent, class E felony
specifically meant to apply to armed threats - aggravated
menacing - not a victim of robbery...Therefore, the
robbery convictions as to the customers cannot stand.58

9. Here, however, the two robbery victims were not customers or

bystanders. They were employees of the store, as Shelley acknowledges in his

motion.59 Under Delaware's law, each employee from whom he took money was a

separate robbery victim. For example, in Hamilton v. State, 60 Hamilton entered a

Wachovia Bank branch in Wilmington, carrying two backpacks.61 He approached

the bank manager, who asked Hamilton how she could help him.62 Hamilton

responded that “his family ... was being held, and that he had a bomb and gun and

would use it if necessary because he needed money.”63 Hamilton ordered the manager

57
Id.
58
Id. at 944.
59
D.I. 135 (“nothing was taken from the two employees”).
60
970 WL 4597345 (Del. Oct. 16, 2008).
61
Id. at *1.
62
Id.
63
Id.
8
to fill one of his backpacks with money, and then followed her to the teller area.64

She instructed another bank employee who was behind the counter to fill the

backpack. 65 That employee put money in the backpack and handed it to Hamilton,

but he told the women that it was not full enough, so they went to another teller to get

more money.66 Hamilton again complained that the backpack was not full enough,

but he was told that there was no more money, and he fled.67 Hamilton was convicted

of two robberies and he appealed, arguing that the trial court erred in denying his

motion to merge the two robbery counts.68 The Court affirmed his convictions on

both counts, holding that it is settled law that, “multiple criminal counts are permitted

in a single transaction when harm, such as that which occurs in a robbery, results to

several persons.”69 There were two victims, both were threatened, and both

participated in providing money to Hamilton. 70 Thus, Hamilton was properly charged

with two robberies and the trial court correctly denied his motion to merge those

charges. 71

10. The operative principle, as the Delaware Supreme Court stated in

Washington v. State,72 is, “the language of the robbery statute demonstrates that

64
Id.
65
Id.
66
Id.
67
Id.
68
Id.
69
Id. at *2 (quoting Bass v. State, 2000 WL 1508724, at *3 (Del. Sept. 13, 2000)).
70
Id.
71
Id.
72
836 A.2d 485 (Del. 2003).
9
robbery is primarily a crime of physical violence against a person. 73 Shelley

threatened two people with the immediate use of force, as confirmed by his

convictions for kidnapping both of them, and, thus, there were two robberies. The

fact the property was taken from their employer does not alter that conclusion.

THEREFORE, Defendant Leroy Shelley’s Motion to Correct an Illegal

Sentence pursuant to Rule 35(a) is DENIED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton
Ferris W. Wharton, Judge

oc: Prothonotary
cc: Investigative Services

73
Id. at 490.
10