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State v. Xenidis

Superior Court of Delaware

April 26, 2019

STATE of Delaware,
Theodore XENIDIS, Defendant.

         Submitted: February 21, 2019

          Written Decision Issued: June 27, 2019

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[Copyrighted Material Omitted]

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         Upon Defendant’s Motion to Exclude Use of Prior Maryland DUI Conviction for Sentencing Under 21 Del. C. § 4177(d)(4), DENIED.

          Matthew F. Hicks, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, for the State of Delaware.

         Michael W. Modica, Esquire, The Law Office of Michael W. Modica, Esquire, Wilmington, Delaware, for Defendant, Theodore Xenidis.


         WALLACE, J.


          Theodore Xenidis was convicted after two separate trials of two separate felony counts of Driving Under the Influence of Alcohol that arose from two separate and distinct 2018 incidents— one occurring on January 21st and the other on February 8th (the "2018 DUI convictions"). The question presented now is whether each conviction, for sentencing purposes, constitutes a third or a fourth DUI conviction under Delaware’s Motor Vehicle Code. And the answer to that question depends on whether a Maryland DUI conviction Xenidis incurred in 1991 can be used as an enhancer under Delaware’s recidivist DUI statute.

         Xenidis moves to exclude that 1991 conviction from his sentencing’s calculus, arguing that it would violate Article I, § 7 of the Delaware Constitution for the Court to count it as an aggravating prior— because, he says, the Court should deem that conviction "uncounseled." While he admits his claim would fail under the Sixth Amendment of the Federal Constitution, Xenidis urges the Court to declare that Delaware’s due process clause provides greater protection than the Sixth Amendment of the Federal Constitution with respect to the

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use of evidence of such a prior out-of-state conviction to enhance the classification of and penalty for a later Delaware conviction.


         Twenty-one Del. C. § 4177(d), the statute governing Xenidis’s present DUI offense, is a recidivist statute providing for an enhanced severity in charge and sentence if the offender has prior DUI convictions.[1] Under the statute, a third DUI conviction is a class G felony carrying up to two years imprisonment, three months of which cannot be suspended.[2] By contrast, 21 Del. C. § 4177(d)(4) mandates that a fourth-time offender: be guilty of a class E felony; be fined up to $ 7,000; and, be imprisoned not less than two years nor more than five years.[3] The first six months of a fourth-time offender’s sentence cannot be suspended, "but shall be served [in prison] and shall not be subject to any early release, furlough or reduction of any kind."[4]

         These provisions leave no discretion to a sentencing judge. Any DUI offender who has been convicted of two previous offenses defined by Delaware’s DUI laws must be sentenced as a third offender; when he has three prior convictions, he must be sentenced in accordance with § 4177(d)(4).[5] And our DUI laws expressly state that a "prior or previous conviction or offense" includes:

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.[6]

         The parties agree that the several prior Delaware DUI convictions Xenidis has collected subject him to no less than a felony conviction and sentencing as a third offender. While inclusion of the 1991 Maryland conviction provokes a higher grade felony and minimum sentence.[7]


          The facts underlying Xenidis’s 2018 DUI convictions are truly of no moment to the disposition of the sentencing issue now before the Court, so they won’t be detailed here. But the procedural histories of Xenidis’s

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1991 Maryland DUI conviction and his course of attacks launched to avoid sentencing as a fourth DUI offender for each of his 2018 DUI convictions are pivotal, so they are now recounted.


         It appears that Xenidis, in 1991, first faced the charge of Driving or Attempting to Drive While Intoxicated before Maryland’s District Court.[8] But, for some reason absent from the record, either after trial or by plea (which it was, is also unexplained) he was convicted of the lesser charge of Driving Under the Influence— a traffic statute penalized by a fine of not more than $ 500, a term of not more than two months incarceration, or both.[9] Xenidis admits that he was in fact fined $ 500 but given no jail time.[10]

          Xenidis’s demonstrates a situation regularly faced by our courts in recidivist DUI cases, where repeat offenders regularly cross state lines. Seemingly, the only available Maryland state court record that documents this almost three-decade-old conviction, and is relied upon by the parties says nothing on the issue of counsel’s involvement. It is unknown from the record provided there (and developed here) whether Xenidis had his DUI trial or plea: without counsel; and, if so, without notice of his entitlement to retain counsel; or, if so and indigent, without notice of his ability to have counsel provided. In short, the only record of Xenidis’s Maryland DUI conviction now-available is completely silent on whether Xenidis had counsel, waived counsel, or the participation of counsel was ever even addressed. And Xenidis is perfectly fine with that silence. Because, he suggests, that silence breeds a constitutionally intolerable unreliability. And unabashedly, he feels, that gives him license to label his Maryland DUI conviction "uncounseled."


         Xenidis’s first and only challenge to his 1991 Maryland DUI conviction has been brought here, in this Court, in these two cases. Interestingly, according to the records provided in these proceedings, that "prior or previous conviction or offense" has already been used twice to enhance prior sentences Xenidis received under Delaware’s DUI law.[11] That itself is a

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problem for Xenidis.[12] The second difficulty Xenidis faces is that the Delaware DUI statute expressly prohibits collateral attacks on priors during DUI sentencing proceedings; [13] both parties are mute on that bar. Challenging too, ...

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