June 15, 2015
STATE OF DELAWARE, Plaintiff-Below, Appellant,
ANDY LABOY, Defendant-Below, Appellee
Submitted June 10, 2015
Case Closed July 1, 2015.
Court Below: Superior Court of the State of Delaware, in and for New Castle County.
REVERSED AND REMANDED.
Karen V. Sullivan, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, for Appellant.
David J. J. Facciolo, Esquire, Minster & Facciolo, LLC, Wilmington, Delaware, for Appellee.
Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.
STRINE, Chief Justice.
Andy Laboy was arrested in July 2012 and indicted on charges of driving under the influence. He pled guilty, admitting in his plea colloquy with the Superior Court and his plea agreement that he was eligible to be sentenced as a third-time offender under 21 Del. C. § 4177 (the " DUI statute" ) because he had been convicted of two previous DUIs. The Superior Court nevertheless sentenced Laboy as a first-time offender. The State now appeals, arguing that the Superior Court erred in disregarding his first two DUI offenses.
We agree. The Superior Court did not have discretion to ignore Laboy's previous DUI convictions under the DUI statute. The statutory framework established by the General Assembly sets out the minimum penalties a judge must impose on third-time offenders like Laboy. It was thus error for the Superior Court to impose a sentence that fell below these requirements. We therefore reverse and remand so that Laboy can be sentenced in accordance with the DUI statute as a third-time offender.
Laboy was arrested on July 28, 2012, on suspicion of DUI. Laboy's BAC was measured by an intoxilyzer as 0.15. Laboy did not dispute before the Superior Court that this offense was his third DUI: he pled guilty to his first DUI in Maryland District Court on August 27, 1999, and was found guilty by a Delaware jury of a second DUI on January 16, 2001. Because of his previous offense, Laboy was sentenced in 2001 by the Court of Common Pleas as a second-time offender. Accordingly, in this case, the State charged Laboy as a third-time offender.
Consistent with his record, Laboy affirmed in a colloquy with the Superior Court after agreeing to a plea deal that he understood he was pleading guilty to a third offense and that he could be sentenced to a Class G felony as a third-time offender under the DUI statute. He also signed a plea agreement, Truth in Sentencing guilty plea form, and revocation of driver's license form, which all stated that he was being sentenced for his third DUI offense. Laboy's counsel confirmed that
Laboy had entered the plea " after intense discussion over many months," and that counsel had " gone through the Truth-in-Sentencing Guilty Plea Form with my client in excruciating detail." 
Despite Laboy's acknowledgement and the record evidence of his two previous DUI convictions, the Superior Court sentenced Laboy as a first-time offender. At his sentencing hearing, the Superior Court opined, " I have some doubt about the first Maryland conviction. Probably it satisfies the statute. I mean, I don't think they would call it 'driving under the influence' if it was anything other than the statute that prohibits people from driving under the influence of alcohol or drugs."  But the court informed Laboy: " I know in good faith I can treat this as a first offense because of the doubt I have over the Maryland conviction. . . . I am going to cut you a break, and I am going to sentence you as a first offender."  The Superior Court then hedged: " if you are arrested for DUI again, you will clearly be a third offender. And if you get this judge, he may find you as a fourth offender. He may change his mind about the Maryland conviction." 
The Superior Court sentenced Laboy as a first-time offender to one year of Level V incarceration, suspended for the entire time to supervision at Level III, and a $500 fine. The State moved to reargue, attaching to its motion a copy of a Superior Court decision affirming a defendant's
conviction as a second-time DUI offender when the first offense occurred in Maryland. The Superior Court denied the State's motion, holding that the " State presented absolutely no evidence about the Maryland statute in effect at the time of Defendant's 1999 conviction. Therefore there was no basis upon which the court could conclude that Delaware's current statute and the 1999 Maryland statute are 'similar.'"  The State has now appealed to this Court.
The State argues on appeal that the Superior Court erred as a matter of law in sentencing Laboy as a first-time offender despite his previous two DUI convictions. We agree: the DUI statute left no discretion to the Superior Court to sentence a third-time offender as a first-time offender.
The DUI statute provides specific, mandatory penalties for DUI offenders who have committed " prior offenses."  A first-time offender can be fined between $500 and $1,500, or " imprisoned not more than 12 months or both. Any period of imprisonment imposed under this paragraph may be suspended."  By contrast, 21 Del. C. § 4177(d)(3) mandates that a third-time offender " be guilty of a class G felony, be fined not more than $5,000 and be imprisoned not less than 1 year nor more than 2 years."  Unlike a first-time offense, the first three months of the third-time offender's sentence cannot be suspended, " but shall be served at Level V and shall not be subject to any early release, furlough or reduction of any kind."  These provisions leave no discretion to the sentencing judge: any DUI offender who has committed two " prior offenses" for purposes of the act must be sentenced in accordance with § 4177(d)(3).
Nor does the DUI statute give discretion to the trial court to determine whether a previous conviction counts as a " prior offense" : 21 Del. C. § 4177B(e)(1) sets out its own definition of " prior or previous conviction or offense," separate from 11 Del. C. § 4215A, which otherwise defines " previous convictions" for sentencing purposes. The DUI statute defines a " prior offense" to include:
A conviction or other adjudication of guilt . . . pursuant to § 4175(b) or § 4177
of this title, or a similar statute of any state or local jurisdiction, any federal or military reservation or the District of Columbia . . .; [or] Participation in a course of instruction or program of rehabilitation or education pursuant to § 4175(b) of this title, § 4177 of this title or this section, or a similar statute of any state, local jurisdiction, any federal or military reservation or the District of Columbia, regardless of the existence or validity of any accompanying attendant plea or adjudication of guilt.
Here, the record is clear that Laboy was convicted in Maryland under a " similar statute" to Delaware's DUI statute. Although the State did not introduce a copy of the Maryland statute as evidence in the Superior Court proceedings, it did provide a certified copy of Laboy's criminal record from the Maryland District Court, which showed that Laboy pled guilty to " Dr. While Intox., Under the Influ. of Alcohol or Drugs."  As a result, he was required to " abstain from alcohol," " submit to alcohol and drug evaluation," and use a " DWI monitor."  Laboy's certified Delaware driving record, provided to the Superior Court with his presentencing report, indicated that Laboy's Delaware driver's license was revoked following the Maryland conviction, and was only returned after he completed an alcohol rehabilitation and treatment program. As part of the Driver's License Compact, a pact among most states codified in Title 21 of the Delaware Code, the Division of Motor Vehicles is required to revoke driving privileges when a Delaware driver commits a motor vehicle offense in another state that would require revocation had the act occurred in Delaware.
Further, the certified records from our own Court of Common Pleas for Laboy's 2001 DUI offense stated that Laboy had been convicted of and sentenced for a second-offense DUI, which was based on the earlier Maryland conviction. Under the DUI statute, Laboy was not permitted to challenge the validity of that earlier conviction in these proceedings. There was thus more than sufficient evidence in the record to support the State's argument that the Maryland offense was sufficiently " similar" to a Delaware DUI for purposes of the DUI statute, and thus Laboy should have been treated as a third-time offender.
Based on that record, the Superior Court erred in faulting the State for not presenting the text of the Maryland statute. The State had no reason to expect to have to prove the similarity of the Maryland statute by bringing in a copy, given Laboy's own acknowledgement that he had committed two previous DUI offenses, Laboy's certified record from Maryland that the State introduced in its motion to sentence him as a third-time offender, and his conviction as a second-time offender in the Delaware Court of Common Pleas. His previous offense in Maryland was plainly similar to a Delaware DUI. Moreover, if the Superior Court had any doubts about the similarity of the relevant Maryland statute, it could have requested the parties to bring in a copy, or looked up the statute itself before or even during the sentencing hearing on its own computer in court.
Laboy nonetheless now argues that under Alleyne v. United States, the State was required to prove " beyond a reasonable doubt" that his previous Maryland conviction " substantially conformed" to Delaware law, and it failed to meet this burden because it did not present the text of the statute to the Superior Court. His argument misreads the DUI statute and this Court's precedent interpreting it. In Stewart v. State, this Court held that " [a] plain reading of section 4177B(e)(1)a reflects that a sentencing court in Delaware [i]s only required to determine that [the defendant] had been convicted in [another state] pursuant to a statute that was 'similar' to Delaware's."  The Stewart Court rejected the defendant's argument that the provisions of the habitual offender statute--which require " substantial conformance" of another state's law to Delaware's--should apply to DUIs, based on the plain language of the DUI statute.
The U.S. Supreme Court's decision in Alleyne v. United States does not alter that result. In Apprendi v. New Jersey, the U.S. Supreme Court held that mandatory maximum penalties are elements of the crime which the State must prove beyond a reasonable doubt. Alleyne merely extended the Court's rationale in Apprendi to mandatory minimum penalties. But the holding in Apprendi specifically exempted a " prior conviction" as an element that " must be submitted to a jury and proved beyond a reasonable doubt."  The Court's analysis in Alleyne cited the holding in Apprendi with approval, and did not reconsider the exception created for " prior convictions."  We thus have no reason to reconsider this Court's holding in Talley v. State, in which we rejected a similar argument by a defendant convicted as a fourth-time DUI offender: " [h]ere, because the increase in Talley's sentence was occasioned solely by his prior convictions, Apprendi is inapplicable."  Likewise,
Alleyne is inapplicable to this case, where Laboy is subject to enhanced penalties solely because of his two previous DUI convictions. The State thus did not need to prove beyond a reasonable doubt that Laboy had previously been convicted of two DUIs; it only needed to establish that he had twice been convicted, pled guilty, or participated in a DUI course or rehabilitation under § 4177 or " a similar statute of any state."  Laboy's certified court records from Maryland and Delaware were sufficient to meet this burden.
We therefore reverse and remand so that the Superior Court can sentence Laboy as a third-time offender in accordance with 21 Del. C. § 4177(d)(3).