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State v. Xenidis

Superior Court of Delaware

April 26, 2019


          Submitted: February 21, 2019

          Written Decision Issued: June 27, 2019

         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.


          Paul R. Wallace, Judge.


         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 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 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.

         A. Xenidis's 1991 Maryland DUI Conviction

         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."

         B. Xenidis's 2018 Convictions and Sentencing Challenges

         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 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, is the meandering course Xenidis's postulations have run.

         1. Xenidis's Initial Challenge Under the United States Constitution

         As mentioned Xenidis has (or had)[14] now pending sentencing for each of his two separate 2018 DUI convictions as fourth offenses. Xenidis moved first to exclude use of his Maryland conviction citing mainly the United States Supreme Court decision in Burgett v. Texas, but ignoring all subsequent applicable federal case law on the subject.[15]

         Perhaps most significant to Xenidis's claim is the Supreme Court's decision in Nichols v. United States[16] Nichols adopted the previously drawn bright line that divides prior misdemeanor convictions resulting in imprisonment from those that result in a fine or other penalty.[17] Uncounseled misdemeanor convictions that result in a sentence of imprisonment violate the Sixth Amendment right to counsel as applied to the states through the Fourteenth Amendment.[18] But an uncounseled misdemeanor conviction not resulting in incarceration does not violate the Sixth Amendment right to counsel.[19] So, under the Federal Constitution, an uncounseled misdemeanor conviction that does not result in a sentence of imprisonment may be used to enhance the sentence for a subsequent offense.[20] And, under the Federal Constitution, the deeply rooted presumption of regularity-even when the question is adherence to the honoring or waiver of constitutional rights-allows a state court to presume that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained.[21]

         Xenidis's sentence for his 1991 Maryland conviction included no term of imprisonment. Rather, he was only fined for the offense. Under Nichols, the use of the 1991 Maryland DUI conviction to enhance Xenidis's present DUI does not violate the Federal Constitution. Xenidis admitted as much at argument, abandoned his federal constitutional claim, and then took up his Article I, Section 7 claim.[22]

         2. Xenidis's Revised Challenge Under the Delaware Constitution

         After his first failed attempt to knock out the Maryland conviction from his sentencing, Xenidis filed anew, resorting solely to the Delaware Constitution. The Court now must address Xenidis's belated argument under our state constitution.[23]As explained later, the Court must exercise much greater care to identify and resolve the precise issue extant than Xenidis and the State have taken to draw it.

         Xenidis urges the Court to make broad pronouncements on the Delaware constitutional right to counsel and its reach: pronouncements that would speak to far more than just when a prior conviction might be used in a subsequent prosecution.[24]And the State does no better.[25] But the Court will try.


         The Delaware Constitution is not a "mirror image" of the Federal Constitution.[26] And while any Delaware state court must follow the United States Supreme Court in matters of federal constitutional law, it is also duty bound to interpret the provisions of Delaware's Constitution so as to avoid rendering our state's individual legal history and grants of rights to her citizens meaningless.[27] Because Delaware may certainly provide greater protection of individual rights than that required by the United States Constitution.[28]

         When deciding if a particular provision of the Delaware Constitution should be interpreted to provide protections that are greater than the rights accorded by its federal analogue as that has been interpreted by the United States Supreme Court, there are certain precepts that must be kept in mind.

         First, the Court must determine with some precision only "whether, and what situations" specifically demand differing results.[29] For "it is well-established in Delaware that 'a constitutional question will not be decided unless its determination is essential to the disposition of the case.'"[30] The obvious corollary to this rule is that the Court will only decide the narrowly drawn constitutional question that must be determined. In other words, context controls here.[31]

         In the context of determining a criminal defendant's rights, the Delaware Constitution has been oft-seen as "an independent source of rights and relie[d upon] as the fundamental law."[32] Accordingly, our State Constitution may be and, where justified, has been interpreted as providing greater protection of individual rights than that which the Federal Constitution requires.[33] So, while this Court need not be reluctant, where warranted, to show greater sensitivity to Delawareans' individual rights under our Constitution than the United States Supreme Court accords to their rights under the Federal Constitution, the Court must "apply a logical, deductive analytical process" to determine whether a state constitutional provision should be given the same interpretation as "similar language in the United States Constitution."[34] As described by one state supreme court, "[t]he question of state constitutional adjudication [ ] is not whether this Court may interpret our constitution differently than the federal constitution, the issue is whether we must"[35]

         When deciding whether the Delaware Constitution provides some greater protection to criminal recidivists than the Federal Constitution requires, the Court must engage an analysis of one or more of the following from the "partial list of... non-exclusive criteria"[36]: "textual language, legislative history, preexisting state law, structural differences, matters of particular state interest or local concern, state traditions, and public attitudes."[37]


         Xenidis can only succeed here if he can convince the Court that use of his 1991 Maryland DUI conviction to enhance his current sentence violates the Due Process Clause of Article I, Section 7 of the Delaware Constitution. Xenidis suggests that the Maryland Conviction is constitutionally deficient for enhancement purposes since the State has failed to prove that he had counsel, waived counsel, or the participation of counsel was ever even addressed on that occasion.[38] While trying to convince the Court of that, Xenidis seeks a broader blanket declaration of one's state right to counsel.

         Article I, Section 7 of the Delaware Constitution provides that, "in all criminal prosecutions, the accused hath a right to be heard by himself or herself and his or her counsel.. . nor shall he or she be deprived of life, liberty or property, unless by . . . the law of the land."[39] Thus, this one section contains both the single statement of Delaware's right to counsel and its criminal due process guarantee. To be sure, Xenidis's argument implicates these two separate Delaware constitutional provisions, the analysis of which in this context tends to merge. But the Court must be precise in framing that actual question posed here:

Must the State, in order to use a prior DUI misdemeanor conviction to enhance the severity of a defendant's DUI charge and sentence, prove that in the earlier proceeding the defendant was represented by counsel or knowingly and voluntarily waived counsel?

         And in this specific context, a review of the accepted analytical factors leads the Court to find no justification to construe Article I, Sections § 7's due process protection more broadly than its federal analogue.

         A. Textual Language

         As the Delaware Supreme Court observed, "[a] state constitution's language may itself provide a basis for reaching a result different from that which could be obtained under federal law."[40] The language of Article I, Section 7's right-to-counsel clause is significantly different than that found in the Sixth Amendment.

         The Sixth Amendment to the United States Constitution states, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."[41] While the Delaware right-to-counsel provides only that "[i]n all criminal prosecutions, the accused hath a right to be heard by . . . his or her counsel." Were the Court to find that "the phrasing of [that] particular provision in our charter [is] [ ] so significantly different from the language used to address the same subject in the federal Constitution that [the Court] can feel free to interpret our provision on an independent basis," it would not be to Xenidis's benefit. Article I, § 7's language itself would suggest a narrower protection. But any difference existing between the right to counsel granted by the Delaware Constitution and the right to counsel granted by the United States Constitution need not be fully resolved here.[42] Because it is the state due process right implicated by use of this prior out-of-state conviction that is at issue.

         Article I, § 7 of the Delaware Constitution provides also that an individual shall not be "deprived of life, liberty, or property, unless ... by the law of the land." In similar fashion, the Fourteenth Amendment of the United States Constitution provides that "no person shall be deprived of life, liberty, or property without due process of law." "It is well established that the phrase 'nor shall he or she be deprived of life, liberty, or property, unless by . . . the law of the land' in Article I, Section 7 of the Delaware Constitution has substantially the same meaning as 'nor be deprived of life, liberty, or property without due process of law'" in the Federal Constitution.[43]In fact, in a variety of contexts, the Delaware Supreme Court has understood Article I, § 7 as being "similar," "co-extensive" or as having substantially the same meaning as the Federal Constitution's due process provisions.[44] Too, this Court has observed that "in deciding a case of due process under our Constitution we should ordinarily submit our judgment to that of the highest court of the land, if the point at issue has been decided by that Court."[45] And in this context, the federal due process clauses allow for the use Xenidis's Maryland conviction-even if truly uncounseled-to enhance the severity in charge and penalty of his current DUI convictions.[46]

         B. Legislative History

         Traditionally, there was no right to be represented by counsel.[47] Even so, Delaware rejected this common law principle as early as 1719 by way of a statute requiring the Court to appoint counsel for defendants in capital cases.[48] Thereafter, in 1776, Delaware adopted its Declaration of Rights which provided, in part, that "in all prosecutions for criminal offenses, every man hath a right ... to be allowed Counsel."[49] Enacted in 1792, Article I, § 7 first provided that "[i]n all criminal prosecutions, the accused hath a right to be heard by himself and his counsel."[50] This provision was carried forward into Delaware's 1831 and 1897 Constitutions.[51]

         The due process provision of Article I, § 7 first appeared in the Delaware Constitution of 1792 in much the same form as it exists today.[52] It and its federal due process counterparts share much the same lineage and, as mentioned above, "substantially the same meaning."[53]

         While the legislative history of these Article I, § 7 provisions may be somewhat different, those differences in no way "reveal an intention that will support reading the provision independently of federal law" on the use of prior convictions as sentencing enhancers.

         C. Pre-existing State Law, Structural Differences, Particular State or Local Interest, Distinctive Public Attitudes

         As the Delaware Supreme Court made clear, not each factor in the "partial list" that a court uses to discern whether a provision in the United States Constitution has a meaning identical to a similar provision on the same subject in the Delaware constitution need be addressed.[54] Some, given the subject area, are simply inapplicable. And some, given the subject area, are not so easily disentangled from the others. Just so here.

         The only relevant preexisting state law on the right to counsel was addressed with the legislative history above.[55] At times, the Court might find that "[differences in structure between the federal and state constitutions" provide a basis for interpreting a state constitutional protection differently.[56] But in this context, there is no real difference in state and federal criminal proceedings. And, in sum, Xenidis says nothing more on this factor than that Court might be able to grant greater protection here, not that it must.[57] This issue is not one of particular state or local interest as that phrase has been understood or used in these analyses.[58] Nor is it one in which there is some uniquely discernible distinctive attitude of the Delaware citizenry.[59]

         In turn, none of these factors are particularly helpful in determining whether the Court should read Article I, § 7 independently of federal due process law on the use of a ...

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