June 2, 2015
STATE OF DELAWARE, Plaintiff-Below, Appellee/Cross-Appellant,
JEFFREY W. BARNES, Defendant-Below, Appellant/Cross-Appellee
Submitted May 20, 2015.
Case Closed July 8, 2015
Court Below: Superior Court of the State of Delaware in and for Sussex County. C.A. No. S14M-01-002 THG.
Elizabeth R. McFarlan, Esquire, Sean P. Lugg, Esquire (argued), Karen V. Sullivan, Esquire, Kathryn J. Garrison, Esquire, State of Delaware Department of Justice, Wilmington, Delaware, for the State of Delaware.
Robert H. Robinson, Jr., Esquire, Bernard J. O'Donnell, Esquire (argued), Office of Public Defender, Wilmington, Delaware, for Jeffrey W. Barnes.
Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ, Justices, constituting the Court en banc.
STRINE, Chief Justice:
This appeal involves a single question: whether the provisions of the Truth In Sentencing Act of 1989 (the " TIS Act" ) that indisputably abolished parole as to Title 11 and Title 16 of the Delaware Code also apply to felony DUI offenses imposed under § 4177 of Title 21. If the answer to that question is yes, as the State now argues, felony DUI offenders are ineligible for parole. But for nearly a generation, the judicial and administrative answer to the question has consistently been no. That is, the Superior Court and the Board of Parole have operated with the understanding that the provisions of the TIS Act that eliminated parole do not apply to felony DUI offenses. In addition, the Delaware Sentencing Accountability Commission (" SENTAC" ), which is statutorily charged with providing guidelines to courts and attorneys about sentencing practices in criminal cases, adhered to this position in its 2014 Benchbook. Because the Code can reasonably be interpreted to continue parole eligibility for DUI offenses, that long-standing judicial and administrative interpretation must be given great weight. We thus adhere to principles of stare decisis and judicial restraint, and give the Code the reading most consistent with the settled expectations of the public.
II. THE TRUTH IN SENTENCING ACT
The General Assembly passed the Truth In Sentencing Act on July 17, 1989, to provide more certainty about the length of sentences to be served by criminal defendants. The TIS Act expressly amended statutes contained in Titles 11 and 16 only,
although many of the amended provisions, including those governing the accumulation of good time credits, had previously been applied to offenses contained in other titles by the interaction of the Code's provisions. Most relevant to this appeal, the TIS Act amended 11 Del. C. § 4205 to state, " [n]o sentence to Level V incarceration imposed pursuant to this Section is subject to parole."  Section 4205 is a backbone provision of Title 11 that sets forth certain minimum and maximum sentences for levels of felonies contained in the Code. The TIS Act also stated that it took effect with respect to " all crimes" committed after June 30, 1989.
When the TIS Act was enacted, DUIs were unclassified misdemeanor offenses contained in § 4177 of Title 21. In 1995, the General Assembly amended § 4177 to create felony DUI offenses. The maximum penalties for felony offenses were increased in 2009, and the minimum penalties for felony DUI offenses were increased in 2012. Accordingly, persons imprisoned for DUI offenses today are serving longer sentences than those who were incarcerated when the TIS Act was enacted.
III. PROCEDURAL BACKGROUND
The procedural background of this case is complicated. On May 24, 2013, Jeffrey Barnes pled guilty to his fifth DUI offense. The Superior Court sentenced Barnes under
21 Del. C. § 4177(d) to five years at Level V incarceration for his class E felony. In accordance with what seems to have been standard practice in the Superior Court for DUI offenses, the sentence order designated the offense as " non-TIS." 
In August 2013, Barnes filed an application to the Board of Parole for early release. The Board granted Barnes' application over the State's opposition and Barnes was released after serving only six months of his sentence. The State then filed an emergency motion to correct an illegal sentence in the Superior Court, arguing for the first time that Barnes' sentence was erroneously labeled as " non-TIS" because the TIS Act applied to felony DUI convictions, and thus Barnes was ineligible for parole. After the Superior Court refused to rule on the State's motion, the State filed two petitions for a writ of mandamus directing the Board of Parole to rescind its decision releasing Barnes.
On January 24, 2014, the Superior Court issued an order addressing both of the State's petitions. In determining that Barnes was eligible for parole, the Superior Court relied on a previous decision of that court finding that DUI sentences are non-TIS offenses, but nonetheless concluded that Barnes should not have been released because he had not completed the portion of his sentence that was mandatory under 21 Del. C. § 4177.
Barnes then appealed and the State filed a cross-appeal of right under 10 Del. C. § 9902(e). Shortly thereafter, Barnes filed a notice of voluntary dismissal of his appeal because his term of incarceration would have ended by the time his appeal was decided, and thus, the issue of his incarceration had become moot. The State, however, wished to maintain its
cross-appeal, and both parties filed briefs. After hearing oral argument, this Court decided to resolve the central question--whether a felony DUI is covered by the TIS Act-- en banc, after briefing and oral argument, as a matter of public importance.
Accordingly, the Court appointed the Public Defender, who represented Barnes, to support the position that felony DUIs are not covered by the TIS Act. Although Barnes did not wish to pursue his appeal given his release, for the sake of clarity, we refer to him as the proponent of the position that the TIS Act does not apply to felony DUI offenses. Barnes took that position in his briefing and in oral argument in front of this Court, before the Public Defender was appointed to submit additional briefing.
The parties dispute whether the TIS Act eliminated parole for all crimes contained in the Delaware Code, including felony DUI offenses contained in Title 21, or only crimes contained in Titles 11 and 16. The State argues that because the TIS Act states that it applies to " all crimes," persons serving prison sentences for felony DUIs, which are crimes under the definition in Title 11, are ineligible for parole. By contrast, Barnes contends that the TIS Act provisions that eliminated parole only apply to crimes contained in Titles 11 and 16, because the TIS Act only amended and referred to statutes contained in those titles. Barnes also points out that for nearly a generation, the Board of Parole and the Superior Court have operated under the understanding that felony DUI offenses are eligible for parole, and SENTAC adhered to that position in its 2014 Benchbook.
In addressing this matter, we hew to a narrow version of the dispute before us,
which is whether defendants convicted of felony DUI offenses under 21 Del. C. § 4177 are eligible for parole. Because the debate about this specific question arises twenty years after the adoption of felony DUIs, it would be hazardous to make any broader pronouncement about the complicated interaction of the various Code titles than is necessary to resolve this appeal.
We review issues of statutory construction de novo. The starting point for the interpretation of a statute begins with the statute's language. When a statute is susceptible to two different interpretations, as it is here, the court is required to interpret the statute based on " available, relevant information and evidence." 
We acknowledge that the State's argument is a strong one as an initial matter. If one were interpreting the Code in 1995, shortly after the adoption of felony DUIs, this Court might take the position that the better reading of the statute is the one that the State now advances. But, the contrary interpretation advanced by Barnes is also a reasonable one. The most direct provision of the Code upon which the State relies in this appeal is 11 Del. C. § 4205, which states, " [n]o sentence to Level V incarceration imposed pursuant to this Section is subject to parole."  Admittedly, § 4177 makes a fifth DUI offense a class E felony, and § 4205 specifies the backbone terms of incarceration for each class of felonies. But the Code also states that Title 11 will not govern the sentencing for crimes in other titles if the " context otherwise requires."  Section 4177 of Title 21 is largely a self-contained statute, and includes detailed prescriptions for sentencing a DUI offender, including the maximum and minimum term of incarceration. As such, a court
need not look to § 4205 when sentencing a felony DUI offender, as the State conceded at oral argument. In fact, to do so would be hazardous, because § 4205 only fixes the maximum term of incarceration for a class E felony at five years. This would not give a judge enough information to sentence a class E felony DUI offender, such as Barnes, because § 4177 has detailed provisions governing the sentence range that must be followed in sentencing such an offender and the minimum amount of time that he must serve.
Reading the Code to continue parole eligibility for felony DUI offenders is not only plausible, it the interpretation that has been held by the Superior Court and the Board of Parole--both composed of sophisticated, repeat players in our criminal justice system, who grapple with the Code on a daily basis--for the entire period since DUIs were made felonies in 1995. The Superior Court has twice addressed the question raised in this appeal and each time concluded that Title 21 offenses are not subject to the TIS Act. The Attorney General was a party to both of those cases, but did not challenge the Superior Court's finding in either, despite the reality that its acquiescence ensured that the defendants would not be subject to provisions of the TIS Act that would have otherwise limited the amount of good time credit available to each. In addition, the Board of Parole, which has authority to release on parole persons incarcerated for non-TIS sentences, claims that it has continually exercised jurisdiction over Title 21 offenses since the passage of the Act in 1989, and has granted parole to persons incarcerated for DUI offenses.
Moreover, SENTAC stated that Title 21 offenses are not covered by the TIS Act in its 2014 Benchbook, which is used by all judges and attorneys who handle criminal cases. SENTAC is a committee composed
of " four members of the judiciary . . . appointed by the Chief Justice, the Attorney General, the Public Defender, the Commissioner of Correction and four members at large."  It thus represents key stakeholders in our criminal justice system. In addition, the General Assembly has given SENTAC statutory authority to interpret the Code to establish " detailed, objective criteria" for judges to use when assigning punishment for offenders.
The consistent position taken by both the judicial and administrative branches supports the plausibility of Barnes' interpretation for a compelling reason. It suggests that, for a generation, none of the key governmental stakeholders most involved in implementing the felony DUI provisions of the Code--the Department of Justice, the Public Defender, the Department of Correction, the Board of Parole, SENTAC, and the Superior Court--believed the enactment of the TIS Act to have deprived the Board of Parole of authority to grant parole to offenders convicted under § 4177. Their understanding is entitled to strong consideration when giving practical effect to what the Code means, given the important role that the Superior Court, Board of Parole, and SENTAC play in giving life to the Code in the most central way relevant to this appeal: how the Code operates to impose punishment on offenders.
When a statute has been applied by courts and state agencies in a consistent way for a period of years, that is strong evidence in favor of that interpretation. Under the doctrine of stare decisis,
we must take seriously the longstanding interpretation of a statute held by our Superior Court, especially when it has been relied upon by the key actors in our criminal justice system. The doctrine of stare decisis exists to protect the settled expectations of citizens because, " [e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly."  The same principles also explain the weight given to long-standing administrative interpretations that have been relied upon by the public.
Predictability and certainty in the law is all the more important when the statute in question involves criminal penalties, as it does here.
Yet after years of acquiescence, the State now asks this Court to deem this settled interpretation implausible under the plain language of the statute, even though it has been held by sophisticated stakeholders in our criminal justice system for over a decade. And it asks us to weigh in even though the General Assembly is aware of the long-standing, contrary interpretation and has not acted to alter it. " [W]hen the prior judicial interpretation was subject to being overturned by the operation of the legislative process and was not overturned, the justification for departing from stare decisis is even more tenuous."  A fundamental canon of statutory construction states that " [t]he long time failure of [the legislature] to alter [a statute] after it had been judicially construed . . . is persuasive of legislative recognition that the judicial construction is the correct one." 
We know the General Assembly is aware that the Board of Parole continues to exercise jurisdiction over persons imprisoned for crimes contained in Title 21 because it considered legislation that would have clarified the application of the TIS Act last session. The fact that the Board of Parole's
exercise of jurisdiction over Title 21 offenses has been brought to the attention of General Assembly, who has not altered it, further cautions against our taking action to disrupt the settled sentencing practices employed by courts, the Department of Correction, and the Board of Parole.
For the foregoing reasons, we adhere to stare decisis, the principles of consistency and predictability we have articulated, and therefore hold that the TIS Act does not apply to felony DUI offenses under 21 Del. C. § 4177. If the General Assembly wishes to amend the Code to alter this long-standing interpretation, it is free to do so.