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Mills v. State

Supreme Court of Delaware

January 14, 2019

RYDELL MILLS, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: January 9, 2019

          Court Below: Superior Court of the State of Delaware Cr. ID No. N1708012318

         Upon appeal from the Superior Court. AFFIRMED in part, REVERSED in part, VACATED, and REMANDED.

          Bernard J. O'Donnell, Esquire, Office of Public Defender, Wilmington, Delaware, for Appellant, Rydell Mills.

          Maria T. Knoll, Esquire, Department of Justice, Wilmington, Delaware, for Appellee, State of Delaware.

          Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices

          STRINE, CHIEF JUSTICE

         The defendant below, Rydell Mills, appeals from his convictions and sentencing order in the Superior Court for various offenses, including cocaine and heroin drug dealing and two counts of resisting arrest with force or violence. These convictions arise out of a single incident in which two police officers caught Mills in a dark alley with a digital scale in his hands, Mills resisted the two officers' arrest, and the police ultimately found a substantial amount of cocaine and smaller amount of heroin nearby.

         This appeal presents three issues. Each of the first two issues involves a claim by Mills that he was improperly subjected to multiple convictions or sentences for one offense, under either double jeopardy principles or Delaware's statutory codification of those principles, which essentially comes down to a question of legislative intent. First, Mills contests the fact that he was convicted of two counts of resisting arrest with force or violence, both deriving from the attempt of two police officers working together to arrest him. Mills argues that when a defendant resists the attempt of multiple officers to arrest him, the multiplicity doctrine prohibits the State from dividing the resisting arrest offense into separate counts for each officer, as occurred in this case. Second, Mills argues that his separate convictions for resisting arrest with force or violence and heroin drug dealing cannot stand because the State used the resisting arrest offense as an aggravating factor to elevate the drug dealing offense to a higher felony grade. Mills contends that under 11 Del. C. § 206, which is essentially a statutory codification of the Blockburger[1] test, the State cannot use a separate offense as an aggravating element of a higher-grade crime and then have the defendant convicted of both that separate offense and that other higher-grade crime.

         As to the first issue, we hold that convicting a defendant of separate counts of resisting arrest with force or violence based solely on the number of arresting officers violates the multiplicity doctrine drawn from the Double Jeopardy Clauses of the United States and Delaware Constitutions. In light of the relevant statutory language, the resisting arrest offense's place in the overall statutory scheme, its apparent purpose, case law from other jurisdictions, and the inequitable results that would follow from allowing multiple convictions based solely on the number of arresting officers, we conclude that the General Assembly intended for the unit of prosecution for resisting arrest with force or violence to be the arrest itself, not the arresting officer whose arrest the defendant resists. In short, we find that the General Assembly intended it to be one count per arrest, not one count per officer. It was therefore multiplicitous to convict Mills twice when the charges arose solely from two officers' joint attempt to arrest him at the same time and place.

         As to the second issue, we hold that a defendant can be sentenced for both resisting arrest with force or violence and aggravated drug dealing, even when the resisting arrest offense is a necessary aggravating factor for the drug dealing conviction. Here too, we base our decision on the General Assembly's intent as to these two offenses. The legislative history of the drug dealing statute shows that the General Assembly intended to allow separate convictions for not just drug dealing, but any separate offense that acts to aggravate the level of the drug dealing charge. In other words, the General Assembly intended the drug dealing statute to work like the felony murder statute, where the defendant can be convicted of both felony murder and the felony that elevated the homicide to felony murder.

         The third and final issue on appeal deals with an allegedly deficient jury instruction. Here, Mills argues that the trial court erred by omitting from its jury instruction for heroin drug dealing the required element that he intended to deliver the heroin. As to this last issue, we hold that this omission was plain error. Although it is regrettable that defense counsel missed the mistake below, this omission of a critical element of the drug dealing offense is glaring and fundamental enough to require reversal even under a plain error standard of review, especially given that the omission was prejudicial under the circumstances of this case.

         We therefore affirm in part and reverse in part the defendant's convictions, vacate his sentence, and remand to the Superior Court for further proceedings consistent with this opinion.

         I. Background

         A. The Arrest[2]

         At approximately 11:30 p.m. on August 17, 2017, two Wilmington Police Department officers, Corporals Donald Palmatary and Robert DiRocco, went to the area of a residence in Wilmington in response to an anonymous call that requested that the police check out the backyard. Entering the alley behind the block, both officers drew their handguns and used the flashlights attached to their guns to illuminate the dark alley. As they exited the alley into the backyard, Officer Palmatary saw a man, later identified as Mills, near the steps at the back of the house. Mills saw the officer and said he "was just taking a piss."[3] Officer Palmatary then ordered Mills to show his hands and, when Mills did so, saw a digital scale in his hands.

         As Officer Palmatary was re-holstering his weapon to detain Mills, Mills took off and tried to charge past the officer to the exit of the alley. Both Officers Palmatary and DiRocco tried to grab Mills, but he escaped their grasp. Officer Palmatary then called for backup and ordered Mills to stop resisting as he and Officer DiRocco took him to the ground again. Mills got back to his feet, continued to struggle, and was again taken to the ground by the officers. Flailing his arms and elbows as he tried to break free, Mills struck Officer DiRocco with an elbow. When backup arrived, Mills and the officers were almost through the alley onto the street. Officer Palmatary grabbed Mills's legs as Officer DiRocco grabbed one of Mills's hands and, with the assistance of other officers who arrived as backup, secured Mills's arms behind his back and handcuffed him. As a result of this incident, Officer DiRocco sustained abrasions and a sprained foot.

         In searching the area, the police found various packages of cocaine and heroin, crack cocaine on the ground where Mills was initially standing, three cell phones, four digital scales, and other paraphernalia. In total, the police recovered about 41 grams of cocaine and 0.5 grams of heroin in packaging. The police also got a warrant to search one of the cell phones belonging to Mills, and found text messages suggestive of drug sales.

         B. Procedural History

         After being arrested, Mills was indicted for aggravated possession of cocaine, cocaine drug dealing, heroin drug dealing, possession of drug paraphernalia, felony resisting arrest by force or violence (two counts), second-degree assault, and loitering. The State nolle prossed the second-degree assault offense before trial. After a three-day trial in February 2018, the jury returned guilty verdicts on all of the pending offenses except aggravated possession of cocaine, for which the jury could not reach a unanimous agreement on at that time. The State entered a nolle prosequi on the aggravated possession of cocaine charge.

         On March 1, 2018, the State filed a motion to declare Mills a habitual offender as to his two convictions for resisting arrest with force or violence.[4] On June 1, 2018, the Superior Court granted the State's motion and sentenced him to an aggregate of 44 years and six months at Level V incarceration, suspended after 20 years for decreasing levels of supervision.

         Mills timely appealed from the Superior Court's sentencing order.

         II. Analysis

         A. Issues on Appeal

         On appeal, Mills claims that the Superior Court erred in three ways. The first two issues each involve an argument by Mills that he was improperly subjected to multiple convictions or sentences for one offense. As to the first issue, Mills argues that the Superior Court improperly sentenced him twice for resisting arrest with force or violence, which Mills casts as a violation of the multiplicity doctrine arising from the Double Jeopardy Clauses of the United States and Delaware Constitutions because the charges arose out of a single incident and course of conduct. As to the second issue, Mills contends that the trial court erred by sentencing him for both resisting arrest with force or violence and heroin drug dealing because the former was an included offense of the latter under 11 Del. C. § 206, which is essentially Delaware's codification of the test laid out by the United States Supreme Court in Blockburger v. United States[5] to determine whether two offenses are the same for double jeopardy purposes. The last issue, which involves an allegedly deficient jury instruction, falls into a different category. Here, Mills argues that the trial court erred by omitting from its jury instruction for heroin drug dealing the required element that he intended to deliver the heroin. Regrettably, Mills did not raise any of these issues below and denied our Superior Court an opportunity to address them in the first instance.

         B. Standard of Review

         Because Mills did not present any of his claims on appeal to the court below, we review for plain error.[6] Under this standard, the error "must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process," and our review "is limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice."[7] We have "previously held, however, that a multiplicity violation may constitute plain error."[8] We have also held that, even in the context of plain error review, issues of statutory interpretation are reviewed de novo.[9]

         C. The Superior Court Erred by Sentencing Mills Twice for Resisting Arrest with Force or Violence

         Mills first claims that the Superior Court erred by sentencing him twice for resisting arrest with force or violence, which he contends was a violation of the multiplicity doctrine under the United States and Delaware Constitutions.[10] In response, the State argues that there was no error because each charge was associated with a different police officer.[11]

         The multiplicity doctrine, which is rooted in the prohibition against double jeopardy, prohibits the State from dividing one crime into multiple counts by splitting it "into a series of temporal or spatial units."[12] In approaching multiplicity questions, we have generally weighed whether the defendant's acts are sufficiently differentiated by time, location, or intended purpose.[13] Under this approach, "[t]he critical inquiry is whether the temporal and spatial separation between the acts supports a factual finding that the defendant formed a separate intent to commit each criminal act."[14] But, in considering double jeopardy claims based on multiple punishments, we have also observed that whether a defendant can be punished multiple times is a question "of statutory construction," and we must ask whether "the General Assembly intend[ed] to impose more than one punishment for a single occurrence of criminal conduct."[15]

         The State's argument that Mills's conduct amounts to two violations of the resisting arrest statute is premised on the notion that, based on the language of the resisting arrest statute, the General Assembly intended to provide for a separate punishment for each officer whose arrest the defendant resists. Mills disputes the State's reading of the statutory text and, citing similar cases from other jurisdictions under statutory schemes similar to ours, argues that the General Assembly's classification of resisting arrest as an offense related to custody, rather than an offense against the person, indicates legislative intent that there be only one count per arrest. He also points to the inequitable consequences that would flow from the State's theory as cutting against its reading of the statute. Because this is a pure statutory interpretation issue, the standard of review is effectively de novo.[16]

         The resisting arrest statute, 11 Del. C. § 1257, reads as follows:

§ 1257 Resisting arrest with force or violence, class G felony; resisting arrest, class A misdemeanor.
(a) A person is guilty of resisting arrest with force or violence when:
(1) The person intentionally prevents or attempts to prevent a peace officer from effecting an arrest or detention of the person or another person by use of force or violence towards said peace officer; or
(2) The person intentionally flees from a peace officer, who is effecting an arrest or detention of the person, by use of force or violence towards said peace officer; or
(3) While a peace officer is effecting an arrest or detention of a person, the person causes physical injury to the peace officer.
Resisting arrest with force or violence is a class G felony.
(b) A person is guilty of resisting arrest when the person intentionally prevents or attempts to prevent a peace officer from effecting an arrest or detention of the person or another person or intentionally flees from a peace officer who is effecting an arrest or detention of the person.
Resisting arrest is a class A misdemeanor.

         Mills was charged and convicted twice under subsection (a)(1): once for resisting Officer Palmatary and once for resisting Officer DiRocco.[17] In other words, even though Officer Palmatary and Officer DiRocco jointly worked together to arrest Mills, Mills was convicted of two counts of resisting arrest.

         Subsection (a) of § 1257 is a relatively new provision. In the original Criminal Code in 1972, resisting arrest was only a misdemeanor and closely resembled the language of the current statute's subsection (b).[18] The General Assembly added subsection (a) in 2006 to establish a higher penalty for resisting arrest when the defendant uses "force or violence."[19] In effect, the 2006 amendment split subsection (b) into two provisions-putting the "prevents a peace officer from effecting an arrest or detention" clause in subsection (a)(1) and the "flees from a peace officer who is effecting an arrest or detention" clause in subsection (a)(2)-and added an aggravating factor for the "use of force or violence."[20] The 2006 amendment also added a third provision (subsection (a)(3)) for cases where the defendant caused physical injury to the arresting officer, regardless of whether the defendant intended to do so.[21]

         Focusing solely on the statutory text, it is unclear whether the General Assembly intended to provide for a separate punishment for each officer whom the defendant resists. On the one hand, the statute refers to "a peace officer, "[22] which the State reads as making the peace officer the "unit" of the crime, such that each arresting officer provides the basis for a separate count. In support of the State's position, some courts in other jurisdictions have, in determining the unit of their resisting arrest and other criminal statutes, distinguished between the use of the pronouns "a" and "any," with the former suggesting that whatever immediately follows the pronoun is the unit of the crime and the latter suggesting that something else may be the unit of the crime.[23] On the other hand, Delaware's statute also refers to "an arrest or detention, "[24] which Mills claims is the unit of the crime, and the "a" versus "any" logic could apply with equal force here. On this view, the number of arresting officers would be immaterial. In support of this interpretation, an intermediate appellate court in Oregon has interpreted its own resisting arrest statute, which provided that "[a] person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer in making an arrest" and defined resistance in terms of "creat[ing] a substantial risk of physical injury," as allowing for one count per arrest, not per officer.[25] The language of the Oregon statute is very similar to our own.[26] Likewise, an intermediate appellate court in New Jersey has interpreted its resisting arrest statute, which provided that "[a] person is guilty . . . if he purposely prevents a law enforcement officer from effecting a lawful arrest . . . [and] he . . . uses or threatens to use physical force or violence against the law enforcement officer," as providing for one count per arrest, "no matter how many police officers are attempting to effect the arrest."[27] Again, that statute's language closely resembles our own. In addition, the title of Delaware's resisting arrest statute-"[r]esisting arrest with force or violence" for the felony version and "resisting arrest" for the misdemeanor version[28]-supports the notion that the arrest, not the peace officer, is the unit of the offense.

         To resolve this ambiguity, we must consider the statute's apparent purpose. In effect, the parties offer two competing theories: the State's theory being that the statute is primarily intended to protect peace officers from harm, and Mills's theory being that it is primarily intended to ensure that peace officers can effectively enforce the law. The former theory would support a one-count-per-officer reading of the statute, in the same way that we might read the first-degree murder statute as allowing the State to charge a defendant who intentionally kills two different people at the same time and place with two counts of murder because the statute is intended to protect the murder victim. The latter theory, by contrast, would support the one-count-per-arrest reading of the statute, in the same way that we treat first-degree arson cases as one-count-per-building cases, even when there are multiple people inside the building, and theft cases as one-count-per-heist cases, even when the property is owned by multiple different people, because these statutes focus on the protection of property, not the individual.[29]

         Our case law does not provide clear guidance on this issue, [30] but in light of the resisting arrest statute's place in the overall statutory scheme, we believe that the effective law enforcement theory fits best. Unlike assault, murder, and other offenses intended to protect individuals from physical harm, the General Assembly put resisting arrest in Chapter 5, Subchapter VI of the Criminal Code, entitled "Offenses Against Public Administration," and specifically in Subpart E, entitled "Escape and Other Offenses Relating to Custody."[31] Subchapter VI is filled with offenses designed to ensure effective and honest public administration, such as bribery, [32] perjury, [33] witness and juror tampering, [34] providing a false statement to law enforcement, [35] refusing to aid a police officer, [36] obstructing fire-fighting operations, [37] and escape.[38] The decision by the General Assembly to categorize resisting arrest as an Offense Against Public Administration is consistent with one leading treatise's description of resisting arrest as an "obstruction form of offense" and categorization of the offense as an "Offense Against Public Authority and Government."[39] Likewise, the Model Penal Code categorizes resisting arrest as an "Offense Against Public Administration," and specifically in the subcategory of "Obstructing Governmental Operations; Escapes."[40] The Model Penal Code's explanatory note describes offenses in this subcategory as "involv[ing] conduct by which the actor attempts some interference with the administration of justice or other governmental operation."[41]

         Crimes intended to protect individuals from physical harm, by contrast, tend to be found in Chapter 5, Subchapter II of the Criminal Code, entitled "Offenses Against the Person."[42] Subchapter II also contains several provisions that punish harm to law enforcement officers specifically, [43] which suggests that the General Assembly knows where to put an offense when it's designed to protect the individual officer rather than ensure effective public administration. For example, the Subchapter II offense of second-degree assault reduces the "serious physical injury" requirement to just "physical injury" where the victim is a law enforcement officer.[44]

         The effective law enforcement theory is bolstered by the description of the resisting arrest offense in the official Commentary to the Criminal Code, which this Court has previously looked to for guidance in double jeopardy cases.[45] The resisting arrest portion of the Commentary explained that the provision was "designed to make resisting an arrest by a peace officer a substantive offense," with "[t]he goal" being "to have him submit, calmly explain to the officer that the arrest was not warranted, and if that fails to explain it to the committing magistrate."[46] The Commentary further justified the provision as "good policy to insist that [peace officers'] efforts to make an arrest meet with no physical resistance."[47] The Commentary thus focuses on the facilitating the orderly administration of justice, not protecting the arresting officer from harm.

         The statute's provision of a penalty even in situations where the risk to officer safety is remote also supports the public administration view. Indeed, the original misdemeanor version of the resisting arrest statute did not require that the defendant use force or violence or cause any physical harm to an arresting officer. Instead, a defendant could be charged with resisting arrest simply for running away from the officer or otherwise attempting to prevent the arrest by nonviolent means.[48]Meanwhile, there is little indication that the General Assembly intended the 2006 amendments, which hewed closely to the language of the misdemeanor version (with the addition of an aggravating factor for "the use of force or violence"), to effect any change to the unit of prosecution. Instead, the singular purpose of the amendments appears to have been to create a higher penalty for what would otherwise be a misdemeanor when the defendant resists with force or violence.[49]

         We also note that courts in other jurisdictions appear to have, for the most part, emphasized the public administration purposes of their resisting arrest statutes and held that the appropriate unit of prosecution is the arrest, not the officer.[50] As the Appellate Division of the Superior Court of New Jersey explained:

Resisting arrest on a single occasion is one offense no matter how many police officers are attempting to effect the arrest. If a person resists arrest by running away from five law enforcement officers who give chase, the person is not committing five offenses. The offense is against the criminal justice system, not against the law enforcement officer or officers individually whose attempt to effect the arrest is an element of the offense. Even though using or threatening to use physical force or violence against a law enforcement officer would raise the offense to a crime, the crime of resisting arrest is still against the system of justice, not against the officer individually.[51]

         Finally, the State's view of the resisting arrest statute could lead to inequitable results. As the United States Supreme Court has observed when interpreting the federal resisting arrest statute, "[p]unishments totally disproportionate to the act . . . could be imposed because it will often be the case that the number of officers affected will have little bearing on the seriousness of the criminal act."[52] The Florida Supreme Court agrees, warning that adopting the officer-centered view could lead to "an endless number of counts of resisting arrest simply depending on the number of officers present."[53] In a similar vein, our sister court in Maryland wrote:

Defining the unit of prosecution by the number of officers involved in executing the legal duty would lead to an absurd result. Imagine an armed individual waiving his gun in the direction of the 100 officers unsuccessfully attempting to induce his surrender. Or imagine the motorist who continues driving despite an order to pull-over, resulting in a chase involving 100 squad cars, each occupied by two officers. Is it reasonable to believe that the legislature contemplated the single acts of resistance to constitute 100 counts of resisting an officer with violence and 200 counts of resisting an officer without violence?[54]

         Even if those particular scenarios seem extreme, the fundamental point is sound. In Delaware, a misdemeanor resisting arrest violation is punishable by up to a year of incarceration, [55] and a felony resisting arrest violation is punishable by up to two years.[56] According to the State's theory of the statute, then, a defendant who runs away from ten officers trying to arrest her, or physically resists five officers trying to arrest her, could be punished with up to ten years in prison. In many cases, the punishment for resisting arrest could eclipse the punishment for the underlying crime.

         For these reasons, we hold that the unit of prosecution for resisting arrest with force or violence is the arrest, not the officer, and charging separate counts based solely on the number of arresting officers violates the multiplicity doctrine. We therefore reverse one of Mills's convictions for resisting arrest, vacate his sentence, and remand to the Superior Court for resentencing.

         D. The Superior Court Properly Sentenced Mills for Both Resisting Arrest with Force or Violence and Heroin Drug Dealing

         Mills argues next that the Superior Court erred by sentencing him for both resisting arrest with force or violence and heroin drug dealing because the former was an included offense of the latter.[57] Specifically, Mills points out that resisting arrest with force or violence was a necessary "aggravating factor" for the tier of drug dealing for which he was sentenced, with the addition of that aggravating factor elevating the offense from a Class D felony to a Class C felony.[58] That, Mills argues, means he could not be convicted of both offenses because 11 Del. C. § 206 prohibits convicting a defendant of more than one offense where one offense "is established by the proof of the same or less than all the facts required to establish the commission of the" second offense.[59] The State argues that § 206 is not controlling here because the General Assembly intended to allow the defendant to be convicted of both drug dealing and the predicate aggravating factor for that tier of drug dealing, as evidenced by a statement to that effect in the synopsis of the bill that created the drug dealing offense.[60]

         Section 206 effectively codifies the test laid out by the United States Supreme Court in Blockburger v. United States[61] for determining whether two offenses are the same for double jeopardy purposes.[62] Under this test, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."[63] We have previously noted, however, that Blockburger and § 206 are "only an aid to statutory construction," and they "do[] not negate clearly expressed legislative intent."[64] If "a better indicator of legislative intent is available," a literal application of Blockburger and § 206 "does not apply."[65] Put another way, this Court's precedents indicate that § 206 must be read in the context of the specific case before the Court, and, if the other provisions of the Criminal Code and accompanying legislative history evidence a clear legislative intent to allow (or prohibit) convictions under two separate statutes, that legislative intent controls. This is consistent with the more general canon of statutory interpretation "that, to the extent of any conflict, the expression of legislative intent in a more specific and later-enacted statute controls the former, more general statute."[66]

         Under a Blockburger or § 206 analysis, resisting arrest with force or violence would appear to be an included offense of drug dealing, such that Mills could not be convicted of both. The drug dealing offense at issue here provides, in relevant part, that "any person who . . . manufactures, delivers, or possesses with the intent to manufacture or deliver a controlled substance, and there is an aggravating factor . . . shall be guilty of a class C felony."[67] Without an aggravating factor, a defendant charged under those circumstances could be convicted of only the Class D felony version of drug dealing.[68] The aggravating factor is necessary to convict a defendant of the Class C version, which carries a substantially longer sentence.[69] The drug dealing statute lists several potential aggravating factors, including commission of the offense "within a protected school zone";[70] commission of the offense "within a protected park or recreation area, or church, synagogue or other place of worship";[71]commission of the offense "in a vehicle";[72] the involvement of a juvenile in dealing or receiving the drugs under certain circumstances;[73] and certain types of resisting arrest.[74] Here, the State used the aggravating factor that applies when "[t]he defendant, during or immediately following the commission of any offense in this title . . . prevented or attempted to prevent a law-enforcement officer . . . from effecting an arrest or detention of the defendant by use of force or violence towards the law-enforcement officer."[75] That language tracks the resisting arrest with force or violence provision of which Mills was convicted, which provides that "[a] person is guilty of resisting arrest with force or violence when . . . [t]he person intentionally prevents or attempts to prevent a peace officer from effecting an arrest or detention of the person or another person by use of force or violence towards said peace officer."[76] Because resisting arrest with force or violence can be "established by the proof of . . . less than all the facts required to establish the commission of" the drug dealing offense of which Mills was convicted, [77] a literal application of § 206 would therefore seem to preclude convicting Mills of both offenses.

         But here, "a better indicator of legislative intent" shows that the General Assembly did not intend for § 206 to apply.[78] Specifically, the synopsis to the bill that created the drug dealing offense clarifies that "[a] person could be convicted of both a drug offense with this aggravating factor [for resisting arrest with force or violence] and a separate charge of [resisting arrest with force or violence]."[79] That is about as clear a statement of legislative intent as one could ask for, other than a statement to that effect in the statutory text itself. And given this context and the statutory language in the pertinent Code sections specifying the two crimes, it ...


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