           IN THE SUPREME COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                      §
                                        §     No. 169, 2014
      Plaintiff-Below,                  §
      Appellant,                        §
                                        §     Court Below: Superior Court
      v.                                §     of the State of Delaware, in and for
                                        §     New Castle County
ANDY LABOY,                             §
                                        §
      Defendant-Below,                  §
      Appellee.                         §

                           Submitted: June 10, 2015
                            Decided: June 15, 2015


Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.


Upon appeal from the Superior Court. 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.



STRINE, Chief Justice:
                                I.     INTRODUCTION

       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.

                                 II.    BACKGROUND

       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




                                             1
Court of Common Pleas as a second-time offender.1 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.2 He also signed a plea agreement,3 Truth in Sentencing guilty plea form,4 and

revocation of driver‘s license form,5 which all stated that he was being sentenced for his

third DUI offense.6 Laboy‘s counsel confirmed that Laboy had entered the plea ―after


1
  App. to Opening Br. at 60 (Court of Common Pleas Criminal Docket and Sentence).
2
  App. to Opening Br. at 29 (Suppression Hearing Tr.).
3
  App. to Opening Br. at 31 (Plea Agreement).
4
  App. to Opening Br. at 32 (Truth in Sentencing Guilty Plea Form).
5
  App. to Opening Br. at 33 (Revocation of Driver‘s License/Privilege to Drive).
6
  Laboy‘s attorney nonetheless attempted to reserve the right to argue that Laboy‘s conviction in
Maryland did not qualify as a previous offense for purposes of the DUI statute. See App. to
Opening Br. at 28 (Suppression Hearing Tr.) (―But the Court does need to know, as does the
State, that there may be the possibility that legally or factually the Maryland conviction might
not be applicable. . . . My client understands, though, that even if we don‘t raise those issues that
he could face the prospect of being sentenced as a third offense, and notwithstanding the fact that
it was a 1999 trigger that might be the one that triggers it from another state . . . he understands
that he might become a Class G felon. He‘s entering this plea knowing that that‘s more likely
than not. . . .‖). We note our concern about this feature of the record. Although neither party
emphasizes it on appeal, Laboy‘s plea was not ambiguous. See id. at 29 (Superior Court: ―It‘s
your intention to plead guilty to Driving Under the Influence Third Offense as noted on the plea.
Is that correct?‖ Laboy: ―Yes.‖. . . . Superior Court: ―You admit you‘re eligible for sentencing
under 21 Delaware Code 4177(d)(3) based upon the following prior convictions: DUI, offense
date 5-21-2000, conviction date January 16th, 2001; DUI in Maryland, offense date April 28th,
1999, conviction date April – August 27th, 1999. . . . Is that your understanding of the entire
written plea agreement?‖ Laboy: ―Yes.‖); App. to Opening Br. at 31 (Plea Agreement)
(―Defendant will plead guilty to: Driving under the influence – 3rd offense.‖). For Laboy to be
allowed later on to renounce his plea by arguing, albeit without any legal or factual basis to do
so, that he was not eligible to be sentenced as a third time DUI offender is troubling. If Laboy
did not wish to plead guilty, he was free not to do so. What he was not free to do was to enter a
plea of guilty to a third DUI offense under 21 Del. C. § 4177(d)(3), and then subject the State
and Superior Court to debate about an issue that he had conceded. Cf., Downer v. State, 543
A.2d 309, 312 (Del. 1988) (―Downer, through a voluntary and intelligent plea bargain, has
                                                 2
intense discussion over many months,‖ and that counsel had ―gone through the Truth-in-

Sentencing Guilty Plea Form with my client in excruciating detail.‖7

        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.‖8 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.‖9 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


forfeited his right to attack the underlying infirmity in the charge to which he pleaded guilty.‖).
For its part, the Superior Court should have either held Laboy to his plea or refused to accept it.
Instead, scarce taxpayer resources of several kinds were wasted on further proceedings that
involved an issue that the guilty plea itself had settled.
7
  App. to Opening Br. at 28-29 (Suppression Hearing Tr.).
8
  App. to Opening Br. at 73 (Sentencing Hearing Tr.).
9
  Id. Notwithstanding his 2001 DUI conviction in Delaware, Laboy could not be sentenced as a
second-time offender because more than ten years had passed between his first and second
Delaware DUIs. Under the DUI statute, a ―second offense‖ must be committed within 10 years
of the first. See 21 Del. C. § 4177(d)(2) (providing enhanced penalties for ―a second offense
occurring at any time within 10 years of a prior offense‖); § 4177(e)(2)(a) (―For sentencing
pursuant to § 4177(d)(2) of this title, the second offense must have occurred within 10 years of a
prior offense.‖). By contrast, there are no time limits for a third DUI to qualify as a ―third
offense‖ under the DUI statute. See 21 Del. C. § 4177(d)(3); § 4177B(e)(2)(b) (―For sentencing
pursuant to § 4177(d)(3) . . . of this title there shall be no time limitation and all prior or previous
convictions or offenses as defined in paragraph (e)(1) of this section shall be considered for
sentencing.‖). As a result, if Laboy‘s Maryland conviction did not qualify as a ―previous
conviction,‖ his second DUI would not qualify either, and he would be eligible for sentencing as
a first-time offender. But if the Maryland conviction qualified, Laboy would need to be
sentenced as a third-time offender.
                                                   3
find you as a fourth offender. He may change his mind about the Maryland

conviction.‖10

       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.11 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.‘‖12

The State has now appealed to this Court.

                                       III.   ANALYSIS

       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.13




10
   App. to Opening Br. at 73 (Sentencing Hearing Tr.).
11
   See App. to Opening Br. at 76-77 (State‘s Motion for Rearg‘t) (citing Davis v. State, 2014 WL
1312742 (Del. Super. Feb. 28, 2014)).
12
   App. to Answering Br. at 129 (Denial of Motion for Rearg‘t).
13
   We review questions of law, including those involving statutory construction, de novo. See,
e.g., State v. Fletcher, 974 A.2d 188, 195 (Del. 2009).
                                               4
       The DUI statute provides specific, mandatory penalties for DUI offenders who

have committed ―prior offenses.‖14 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.‖15 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.‖16 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.‖17 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).18

       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. § 4177(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.19 The DUI

statute defines a ―prior offense‖ to include:


14
   21 Del. C. § 4177(d).
15
   21 Del. C. § 4177(d)(1).
16
   21 Del. C. § 4177(d)(3).
17
   Id.
18
   21 Del. C. §4177(d)(11) (―If it shall appear to the satisfaction of the court at a hearing on the
motion that the defendant falls within paragraph (d)(3) . . ., the court shall enter an order
declaring the offense for which the defendant is being sentenced to be a felony and shall impose
a sentence accordingly.‖).
19
   11 Del. C. § 4215A (defining ―previous conviction‖ as ―an offense specified in the laws of this
State or . . . an offense which is the same as, or equivalent to, such offense as the same existed
and was defined under the laws of this State existing at the time of such conviction; or . . . an
                                                 5
       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.20

       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.‖21 As a

result, he was required to ―abstain from alcohol,‖ ―submit to alcohol and drug

evaluation,‖ and use a ―DWI monitor.‖22 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.23 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




offense specified in the laws of any other state, local jurisdiction, the United States, any territory
of the United States, any federal or military reservation, or the District of Columbia which is the
same as, or equivalent to, an offense specified in the laws of this State.‖) (emphasis added).
20
   21 Del. C. §4177(e)(1).
21
   App. to Opening Br. at 51 (Dist. Ct. of Md. Traffic System Citation Information).
22
   App. to Opening Br. at 53 (Dist. Ct. of Md. Traffic System Citation Information).
23
   App. to Opening Br. at 118 (State of Delaware Driving Record).
                                                  6
when a Delaware driver commits a motor vehicle offense in another state that would

require revocation had the act occurred in Delaware.24

       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.25 Under the DUI

statute, Laboy was not permitted to challenge the validity of that earlier conviction in

these proceedings.26 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.27

       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-

24
   See 21 Del. C. § 8101 (―(a) The licensing authority in the home state, for the purposes of
suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same
effect to the conduct reported . . . as it would if such conduct had occurred in the home state in
the case of convictions for . . . [d]riving a motor vehicle while under the influence of intoxicating
liquor or a narcotic drug.‖).
25
   App. to Opening Br. at 59-60 (Court of Common Pleas Criminal Docket and Sentence).
26
   See 21 Del. C. § 4177B(e)(5) (―In any proceeding under § 2742 of this title, § 4177 of this title
or this section, a person may not challenge the validity of any prior or previous conviction,
unless that person first successfully challenges the prior or previous conviction in the court in
which the conviction arose and provides written notice of the specific nature of the challenge in
the present proceeding to the prosecution at least 20 days before trial.‖).
27
   We understand the Superior Court‘s impulse toward mercy and its good faith attempt to
exercise lenity. But the DUI statute does not permit the Superior Court to deviate from the
defined mandatory minimum penalties.
                                                 7
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.‖28 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.29

       The U.S. Supreme Court‘s decision in Alleyne v. United States does not alter that

result.30 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



28
   930 A.2d 923, 926 (Del. 2007).
29
   See id.
30
   133 S. Ct. 2151 (2013).
                                             8
reasonable doubt.31 Alleyne merely extended the Court‘s rationale in Apprendi to

mandatory minimum penalties.32 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.‖33 The Court‘s analysis in Alleyne cited the holding in Apprendi with

approval, and did not reconsider the exception created for ―prior convictions.‖34 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.‖35 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.‖36 Laboy‘s certified court records from Maryland and Delaware were

sufficient to meet this burden.




31
   530 U.S. 466 (2000).
32
   See Apprendi v. New Jersey, 530 U.S. 466 (2000).
33
   133 S. Ct. 2151 (2013).
34
   See Alleyne, 133 S.Ct. at 2160, n.1 (noting that ―[i]n Almendarez–Torres v. United States, 523
U.S. 224 (1998), we recognized a narrow exception to this general rule [that facts that expose
defendants to greater penalties are elements of a separate offense] for the fact of a prior
conviction. Because the parties do not contest that decision‘s vitality, we do not revisit it for
purposes of our decision today.‖).
35
   Talley v. State, 2003 WL 23104202, at *2 (Del. Dec. 29, 2003).
36
   21 Del. C. § 4177(e)(1).
                                                9
       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).37




37
   Laboy‘s argument that there is a double jeopardy concern with reversing his illegal sentence
also fails: under 10 Del. C. § 9902(f), the State has ―an absolute right to appeal any sentence on
the grounds that it is unauthorized by, or contrary to, any statute or court rule, in which case the
decision or result of the State‘s appeal shall affect the rights of the accused.‖ Here, his original
sentence was contrary to the DUI statute. Re-sentencing Laboy within the mandatory parameters
merely corrects that error. Cf. Bozza v. United States, 330 U.S. 160, 166-67 (1947) (holding that
there is no double jeopardy concern when a judge corrects an erroneous sentence).
                                                10
