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Scott v. State

Superior Court of Delaware

December 18, 2018

OMARR J. SCOTT Appellant,
v.
STATE OF DELAWARE, Appellee.

          Submitted: October 4, 2018

         On Appeal from the Court of Common Pleas. REVERSED.

          Benjamin S. Gifford IV, Esquire, Law Office of Benjamin S. Gifford IV, Wilmington, Delaware, Attorney for Appellant Omarr J. Scott.

          Erik C. Towne, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for Appellee the State of Delaware.

          MEMORANDUM OPINION

          Richard R. Cooch, R.J.

         I. INTRODUCTION

         Before this Court is Appellant's appeal of a Court of Common Pleas' January 16, 2018, ruling in five cases of Driving While Suspended pursuant to 21 Del. C. § 2756(a), adjudicated by a consolidated bench trial, finding Appellant guilty of all five charges. Appellant was ultimately sentenced to four years of Level V incarceration, suspended after two years for one year of Level III probation. Appellant's appeal raises one issue: whether he was properly convicted (from five separate occasions) of Driving While Suspended under 21 Del. C. § 2756(a), when he drove a motor vehicle on a public roadway after his license suspension period ended, but before he paid the license reinstatement fee.

         The Court finds that Appellant should not have been convicted under 21 Del. C. § 2756(a) under the facts of this case and because of a decision by the Delaware Supreme Court in Dehorty v. State, 2002 WL 31946069 (Del. 2002), that stated: "While [the defendant] did drive at the time of the offense without having taken steps to reinstate her license, her actual revocation period expired [a year before her offense] ....At most, the record reflects that she could have been charged with and convicted of Del. Code Ann. tit. 21 § 2701(b) [instead of Driving While Suspended pursuant to 21 Del. C. § 2756(a)]."[1] Here, Appellant drove a motor vehicle after his license suspension period ended, but before his license was reinstated. As this Court reads Dehorty, the most that the Appellant in this case could have been convicted of was Driving Without a License under 21 Del. C. 2701(b). Accordingly, and as was ordered by the Delaware Supreme Court in Dehorty, the Court vacates Appellant's five convictions under § 2756(a).

         II. FACTS AND PROCEDURAL HISTORY

         The Delaware Division of Motor Vehicles ("DMV") initially suspended Appellant's license and driving privileges on September 2, 2011, for a period of six months due to lack of insurance. More than a year after his initial suspension period ended, the DMV suspended Appellant's license and driving privileges for a second time on November 22, 2013, for a period of two months. The second period of suspension ended on January 22, 2014. For each suspension, Appellant received an official notice of suspension from the DMV which stated that in order to be eligible for reinstatement, Appellant was required to serve the full term of the suspension and pay a $25.00 reinstatement fee at the DMV.[2] The notice stated "[y]our driver license and/or driving privileges remain suspended until this fee is paid."[3] Although the DMV did not suspend Appellant's privileges a third time, Appellant never took steps to reinstate his license after either the 2011 or 2013 suspensions.

         From August 6, 2014, to February 13, 2017, Appellant was charged by information in the Court of Common Pleas with a multitude of traffic violations as a result of several traffic stops.[4] In total, Appellant faced five counts of Driving While Suspended, [5] one count of Driving Without a License, [6] one count of Failure to have Required Insurance, [7] two counts of Expired Tags, [8] one count of Failure to Have Insurance Identification in Possession, [9] and one count of Failure to Have License in Possession.[10] On August 8, 2017, Appellant's cases proceeded to a consolidated bench trial in the Court of Common Pleas. After trial, the parties were ordered to brief the legal issues presented during trial, specifically whether Appellant's driver's license and privileges were suspended at the time of the five traffic stops.[11] The dispositive issue for the five counts of Driving While Suspended was whether Appellant was still legally suspended for the purposes of 21 Del. C. § 2756(a) after his period of suspension ended, but before Appellant paid the $25.00 reinstatement fee to the DMV to reinstate his license. The Court considered the official notices of suspension that Appellant received, as well as the testimony of Mrs. Kami Beers, Chief of Driver Services for the DMV, who stated that "there were various requirements which must be fulfilled to lift a suspension, including paying fines ... [and] a suspension remains in effect until the enumerated conditions are completed."[12] At the time of each of the underlying traffic stops Appellant's Full Driving Record on file with the DMV listed him as suspended.[13]

         The Court of Common Pleas issued its written decision on January 16, 2018, and found Appellant guilty of five counts of Driving While Suspended, one count of Driving Without a License, two counts of Failure to Have Required Insurance, and two Counts of Expired Tags.[14] The parties did not cite Dehorty in their briefs below, nor did the Court of Common Pleas discuss that case. In essence, the Court of Common Pleas held, with respect to defining the period of suspension under 21 Del. C. § 2756(a), that '"the key determination' [was] whether Defendant possessed driving privileges when he was charged."[15] The Court held that a period of suspension "not only includes the monthly 'term of the suspension,' but also the period prior to reinstatement of the offender's driver's license or driving privileges."[16]

         On February 13, 2018, Appellant was sentenced to an aggregate of four years Level V incarceration, suspended after two years for one year Level III probation.[17]On May 15, 2018, Appellant filed a timely Notice of Appeal to this Court.

         III. PARTIES' CONTENTIONS

         A. Appellant's Contentions

         Appellant argues that the Court of Common Pleas committed reversible error by finding him guilty of five counts of Driving While Suspend or Revoked under 21 Del. C. § 2756(a). Appellant contends that a violation of § 2756(a) can only occur if an offender drives a motor vehicle "during the period of suspension or revocation[.]"[18] Conversely, the language in 21 Del. C. § 2701(b) - Driving Without a License states that an offender is in violation if the offender operates a motor vehicle "after serving a period of suspension, revocation, or license denial, without first having obtained a valid license through reinstatement procedures[.]"[19]Appellant argues that he was eligible to initiate the reinstatement process, but merely "failed to reinstate [his driving] privilege[s] after serving the entirety of his period of suspension."[20] Thus, Appellant contends, at most he could have been charged with and convicted of Driving Without a License under § 2701(b).

         Appellant strongly relies on the Delaware Supreme Court's holding in Dehorty v. State. In Dehorty, the defendant-driver appealed inter alia her conviction under 21 Del. C. § 2756(a), arguing that she could not be convicted under the statute because her revocation period had expired before her alleged misconduct.[21] The Delaware Supreme Court vacated Dehorty's conviction of Driving While Suspended. The Court explained that while Dehorty failed to take steps to reinstate her license, her revocation period had expired by the time of the offenses charged.[22]Appellant contends that Dehorty is binding precedent and "directly addressed" the issue on appeal before this Court.

         B. Appellee's Contentions

         The State argues that the Court of Common Pleas correctly determined that Appellant drove a motor vehicle on a public roadway during a period of suspension or revocation, because Appellant's suspensions were still in effect according to the DMV records. The State stresses that Dehorty is distinguishable because the prosecution in Dehorty did not submit any evidence regarding whether defendant-driver had other conditions, beyond the period of suspension, to fulfill before she could reinstate her license. In the instant appeal, the notice Appellant received from the DMV stated "[y]our driver license and/or driving privileges remain suspended until this fee is paid."[23] Furthermore, Kami Beers, Chief of Driver Services for the DMV, testified at trial that "there were various requirements which must be fulfilled to lift a suspension, including paying fines ... [and] a suspension remains in effect until the enumerated conditions are completed."[24] Thus, the State contends that due to Appellant's "inaction to satisfy[] all of the enumerated conditions on two proper DMW suspensions, both underlying suspensions remained in effect on [Appellant's] license and driving privileges at the times charged."[25] Essentially, the State argues that Appellant's suspension remained in effect beyond the enumerated time period, and was still in effect at the time of the underlying traffic stops, because Appellant failed to satisfy the additional requirement to pay a fee to reinstate his license.[26]

         IV. STANDARD OF REVIEW

         "In reviewing appeals from the Court of Common Pleas, this Court sits as an intermediate appellate court, and its function mirrors that of the Supreme Court."[27] "Questions of law are subject to de novo review."[28] This Court also reviews issues of statutory construction de novo to determine whether the Court of Common Pleas erred as a matter of law in interpreting a statute.[29]

         V. DISCUSSION

         A. Pursuant to the Delaware Supreme Court's holding in Dehorty v. State, Appellant's convictions under 21 Del. C. § 2756 must be vacated.

         Appellant's case is very similar to that of the defendant-driver in Dehorty. In Dehorty, the defendant-driver appealed inter alia her conviction under 21 Del. C. § 2756(a), arguing that she could not be convicted under the statute because her period of suspension had expired before her alleged misconduct.[30] Notably, the State in Dehorty conceded on appeal that Dehorty should not have been convicted under § 2756(a), but rather convicted under 21 Del. C. § 2701(b).[31] In its answering brief in Dehorty the State broadly "concede[d]" that:

Shelly Dehorty was indicted for the offense of driving while suspended or revoked ... in that she drove a motor vehicle on December 24, 1999, when her driver's license was suspended or revoked. ... The record shows a 12 month revocation, effective May 5, 1997. ... In order to be convicted of driving during revocation under 21 Del. C. § 2756(a), the State was required to prove that Dehorty's driver's license was validly revoked in 1997 for 12 months and that she drove during the period of revocation. The State concedes that since Dehorty's revocation period expired on May 5, 1998, [one year and seven months before the underlying offense, ] she can not legally be convicted of driving during revocation, but should have been convicted of the lesser included offense of failing to reinstate her driver's license as a second offense. As a result of the State's confession of error in this regard, this Court should vacate the driving during revocation conviction and sentence and remand this case back to the Superior Court with instruction to enter a conviction for failing to reinstate her license.. ."[32]

         Adopting the State's concession, the Delaware Supreme Court vacated Dehorty's conviction of Driving While Suspended or Revoked. The Court explained that while Dehorty had failed to take steps to reinstate her license, her period of suspension ...


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