Fulton v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

GENE L. FULTON, §
§
Defendant Below, § No. 123, 2025
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 1508009967 (N)
§
Appellee. §

Submitted: May 12, 2025
Decided: July 1, 2025

ORDER

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

Upon consideration of the parties’ briefs and the record below, it appears to the

Court that:

(1) The appellant, Gene L. Fulton, filed this appeal from a Superior Court

order denying his motion under Superior Court Rule of Criminal Procedure 35. The

State has moved to affirm the judgment below on the ground that it is manifest on

the face of Fulton’s opening brief that his appeal is without merit. We agree and

affirm.

(2) On August 13, 2015, Fulton broke into a senior citizen’s home and stole

some jewelry. A grand jury indicted him for second-degree burglary, theft from a

senior, and driving a vehicle while his license was suspended or revoked. Fulton
pleaded guilty to the burglary and theft charges. In the plea agreement, Fulton

agreed that he was subject to habitual offender sentencing under 11 Del. C. § 4214(a)

and had the following prior felony convictions: second-degree burglary in

September 2004, three counts of third-degree unlawful sexual penetration in July

1992, second-degree assault in July 1992, carrying a concealed deadly weapon in

1985, escape in 1981, and second-degree robbery in January 1981. The State agreed

to cap its sentencing recommendation at twelve years. The truth-in-sentencing form

that Fulton signed on the date of his plea stated that he faced a sentence up to life

imprisonment on the second-degree burglary charge to which he was pleading guilty,

with a minimum-mandatory sentence of eight years on that charge.

(3) On March 24, 2016, the State filed a motion to declare Fulton a habitual

offender under Section 4214(a). The body of the motion identified the following

predicate felony convictions: (i) carrying a concealed deadly weapon, for which

Fulton was sentenced on January 9, 1986; (ii) second-degree assault, for which

Fulton was sentenced on September 18, 1992; (iii) three counts of third-degree

unlawful sexual intercourse, for which Fulton was sentenced on September 18,

1992;1 and (iv) second-degree burglary, for which Fulton was sentenced on

1
In that case, Fulton had been charged with four counts of third-degree unlawful sexual
intercourse, among other offenses. Contrary to the statement in the body of the habitual-offender
motion, in 1992 Fulton pleaded guilty to, and was sentenced for, three counts of third-degree
unlawful sexual penetration, as lesser-included offenses of three of the original charges, and one
count of endangering the welfare of a child. The exhibits to the habitual-offender motion
demonstrated that history.

2
September 23, 2004. On April 29, 2016, the Superior Court granted the habitual-

offender motion and sentenced Fulton as follows: (i) fifteen years of imprisonment

for second-degree burglary, under Section 4214(a); and (ii) two years of

imprisonment, suspended for decreasing levels of supervision, for theft from a

senior.

(4) Fulton did not file a direct appeal. In June 2016, however, Fulton’s

counsel filed a motion for modification of sentence on his behalf. Shortly thereafter,

Fulton filed a pro se “Motion for Modification of Sentence and/or Correction of an

Illegal Sentence.” In the pro se motion that he filed in 2016, Fulton asserted, among

other things, that he told his counsel before sentencing that the habitual-offender

motion contained an error—specifically, that it said Fulton had been convicted of

three counts of third-degree unlawful sexual intercourse, although he was actually

convicted of lesser-included offenses. The Superior Court denied the motions, and

Fulton did not appeal.

(5) In June 2023, Fulton filed a pro se motion for correction of illegal

sentence. He argued that he was erroneously declared a habitual offender, and his

sentence for second-degree burglary therefore is illegal because it exceeds the

statutory maximum penalty of eight years. More specifically, Fulton contended that

the 1992 assault and sexual-penetration convictions were not separate predicate

offenses under Section 4214(a) because he was convicted and sentenced for those

3
offenses on the same date, and he argued that he was sentenced on the basis of

materially untrue information because the habitual-offender motion incorrectly

stated that he was convicted of third-degree unlawful sexual intercourse.2

(6) After filing his pro se motion, Fulton retained counsel. Counsel then

filed a ‘Motion to Correct a Sentence Imposed in an Illegal Manner and Motion to

Modify Sentence.” That motion argued, based on the error in the habitual-offender

motion as to the predicate sexual offenses, that Fulton’s sentence was imposed in an

illegal manner and that the error constituted extraordinary circumstances warranting

consideration of the motion more than ninety days after sentencing.3 After briefing,

oral argument, supplemental briefing, and review of the record—including the

transcript of the habitual-offender and sentencing proceeding—the Superior Court

denied Fulton relief under Rule 35. The court held that the sentence is not illegal

and that the error in the body of the habitual-offender motion did not warrant relief

outside the ninety-day period for seeking correction of a sentence imposed in an

illegal manner. Fulton has appealed to this Court.

(7) We review the denial of a motion under Rule 35 for abuse of discretion,

although questions of law are reviewed de novo.4 The Superior Court may correct

2
See supra note 1 & accompanying text.
3
See DEL. SUPER. CT. R. CRIM. PROC. 35(a), (b) (providing that in extraordinary circumstances the
court may correct a sentence imposed in an illegal manner more than ninety days after the sentence
is imposed).
4
Gladden v. State, 2020 WL 773290, at *1 (Del. Feb. 17, 2020); Fountain v. State, 2014 WL
4102069, at *1 (Del. Aug. 19, 2014).

4
an illegal sentence at any time.5 A sentence is illegal if it exceeds statutory limits,

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 its substance, or is a sentence that the judgment of

conviction did not authorize.6 Motions for relief under Rule 35 on other grounds are

subject to a ninety-day time bar, except in extraordinary circumstances.7

(8) We agree with the Superior Court’s determination that Fulton’s

sentence is not illegal. When Fulton committed the burglary for which he received

the habitual-offender sentence, Section 4214(a) provided in relevant part:

Any person who has been 3 times convicted of a felony, other than
those which are specifically mentioned in subsection (b) of this section,
under the laws of this State . . . and who shall thereafter be convicted of
a subsequent felony of this State is declared to be an habitual criminal,
and the court in which such fourth or subsequent conviction is had, in
imposing sentence, may in its discretion, impose a sentence of up to life
imprisonment upon the person so convicted. Notwithstanding any
provision of this title to the contrary, any person sentenced pursuant to
this subsection shall receive a minimum sentence which shall not be
less than the statutory maximum penalty provided elsewhere in this title
for the fourth or subsequent felony which forms the basis of the State’s
petition to have the person declared to be an habitual criminal except
that this minimum provision shall apply only when the fourth or
subsequent felony is a Title 11 violent felony, as defined in § 4201(c)
of this title.8

5
DEL. SUPER. CT. R. CRIM. PROC. 35(a).
6
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
7
DEL. SUPER. CT. R. CRIM. PROC. 35(a), (b).
8
11 Del. C. § 4214(a) (effective July 3, 2013, to July 18, 2016).

5
The applicable version of Section 4201(c) designated second-degree burglary as a

violent felony.9 Thus, Fulton was subject to a sentencing range of eight years to life

under Section 4214(a) if he had three prior felony convictions.10 Fulton does not

dispute that he had three separate, predicate felonies—carrying a concealed deadly

weapon, second-degree assault, and second-degree burglary—even without

considering the 1992 sexual offenses.11 Fulton’s fifteen-year sentence is not

illegal.12

(9) The mistake in the habitual-offender motion also does not constitute

extraordinary circumstances that overcome the requirement that motions seeking

correction of a sentence imposed in an illegal manner—or otherwise seeking a

sentence reduction—be brought within ninety days of sentencing. “‘Extraordinary

9
See id. § 4201(c) (effective June 2, 2015, to September 2, 2015) (designating Burglary in the
Second Degree under 11 Del. C. § 825 as a violent felony).
10
See id. § 825 (effective July 12, 2004, to September 15, 2019) (classifying second-degree
burglary of a dwelling as a class D felony); id. § 4205(b)(4) (effective June 30, 2003, to present)
(establishing a sentencing range of zero to eight years for a class D felony); id. § 4214(a) (effective
July 3, 2013, to July 18, 2016) (“[T]he court in which such fourth or subsequent conviction is had,
in imposing sentence, may in its discretion, impose a sentence of up to life imprisonment . . . .
Notwithstanding any provision of this title to the contrary, any person sentenced pursuant to this
subsection shall receive a minimum sentence which shall not be less than the statutory maximum
penalty provided elsewhere in this title for the fourth or subsequent felony . . . [if] the fourth or
subsequent felony is a Title 11 violent felony, as defined in § 4201(c) of this title.”).
11
As noted above, Fulton agreed when he pleaded guilty that he was subject to habitual-offender
sentencing under Section 4214(a) and had prior felony convictions that included second-degree
burglary, second-degree assault, and carrying a concealed deadly weapon, in addition to the three
counts of third-degree unlawful sexual penetration and other felonies.
12
Fulton did not present to the Superior Court his argument that his sentence is illegal under
Erlinger v. United States, 602 U.S. 821 (2024), and we will not consider the issue for the first time
on appeal. DEL. SUPR. CT. R. 8.

6
circumstances’ are circumstances that specifically justify the delay; are entirely

beyond a petitioner’s control; and have prevented the applicant from seeking the

remedy on a timely basis.”13 Fulton has not shown such circumstances; indeed, he

asserted in a motion that he filed nearly a decade ago that the habitual-offender

motion incorrectly identified the sexual offenses of which he was previously

convicted. Because Fulton’s sentence is not illegal and he has not shown

extraordinary circumstances to overcome the ninety-day time bar, the Superior Court

appropriately denied his request for relief under Rule 35.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT:

/s/ Collins J. Seitz, Jr.
Chief Justice

13
Bodnari v. State, 2019 WL 3945647, at *2 (Del. Aug. 20, 2019) (internal quotations omitted).

7