IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CURTIS J. BROWN,

Appellant/Defendant Below,

)
)
)
)
V. ) Case ID: 1502004036
)
STATE OF DELAWARE, )

)

)

Appellee/Plaintiff Below,

Submitted: September 9, 2016
Decided: January 9, 2017

Upon Consideration of
Appellcmt ’S Appeal of Decision
Of the Court OfCommon Pleas, AFFIRMED.

MEMORANDUM OPINION

Albert M. Greto, Esquire, LaW Offlces of Albert M. Greto, Wilmington, Delaware.
Attorney for Appellant.

Matthew C. Bloom, Esquire, Department of Justice, Wilmington, Delaware.
Attorney for Appellee.

BUTLER, J.

FACTUAL BACKGROUND AND PROCEDURAL POSTURE

On or about February 7, 2015, Curtis Brown (“Appellant”) Was arrested for
Driving Under the Influence of Alcohol (“DUI”) and driving at an unreasonable
speed. Corporal Richard Angelucci, While driving his marked patrol vehicle on
Route l in NeW Castle County at approximately l:30am, observed a black Audi
approaching his vehicle from behind at a high rate of speed. Despite the officer
traveling above the 65-mile-per-hour speed limit, the Audi Was still able to catch
up to Corporal Angelucci.

Corporal Angelucci stopped the Audi. Appellant Was in the driver’s seat.
Appelant had had trouble collecting his license, registration and insurance card.
His eyes Were Watery and glassy, his speech slow and slurred. He had a moderate
odor of alcohol. Corporal Angelucci asked Appellant to step out of the vehicle and
Appellant complied although accompanied by some struggles With his balance.

Corporal Angelucci administered, and Appellant failed, three field sobriety
tests. On the horizontal gaze nystagmus test, Appellant exhibited all six clues
indicating a 77% likelihood of impairment On the Walk and Turn test, Appellant
exhibited five of eight clues indicating a 68% likelihood of impairment On the
One-Leg-Stand, BroWn exhibited three clues, indicating a 65% likelihood of
impairment Corporal Angelucci placed Appellant under arrest at the conclusion of

these tests under the belief that Appellant Was under the influence of alcohol.

Appellant’s case proceeded to a bench trial in the Court of Common Pleas
on July 8, 2015. Corporal Angelucci testified as the sole witness for the State.
While the trial court expressed concern over the State’s lack of audio in the police
cruiser to accompany the video entered into evidence by the State, the court found
the testimony of Corporal Angelucci to be credible and that he provided sufficient
explanation for all the scientific data of the standard field sobriety tests he
administered

At the conclusion of evidence, the trial judge found Appellant guilty of both
the DUI charge and driving at an unreasonable speed. The court delayed
sentencing to allow the State to produce a certified copy of the Appellant’s
Pennsylvania records, showing a 2011 enrollment in Pennsylvania’s Accelerated
Rehabilitative Disposition (“ARD”) program, a DUI diversionary program. The
trial court held a hearing on this matter on October 27, 2015, at which point the
court held that Appellant’s ARD participation constituted a prior DUI offense
under 21 Del. C. § 4177B(e)(l) and granted the State’s application to sentence
Brown as a second DUI offender pursuant to 21 Del. C. § 4177(d)(2). The trial
court found that the Delaware and Pennsylvania DUI Statutes generally, and the
Delaware FOP Statute and Pennsylvania ARD Statutes, as well as their

diversionary programs, are substantially similar.

Appellant subsequently filed a motion for reargument on February 26, 2016
which the trial court denied. Appellant raised concerns within the motion regarding
lack of notice and Sixth Amendment issues. Although not properly before the
court, in the interest of justice, the trial court addressed them briefly in turn.
Appellant argued that he was never placed on notice that his participation in the
Pennsylvania ARD Program would constitute a “prior offense” for future DUI
prosecutions, and that the Sixth Amendment of the United States Constitution
prevented the State from using his participation in the Pennsylvania ARD Program
as a predicate “prior offense” for sentencing purposes.

As to notice, the trial court found that neither the Delaware FOP Statute or
the Pennsylvania ARD Statute require a defendant to be notified of potential
sentencing consequences when electing to participate in the programs With
respect to Appellant’s Sixth Amendment concerns, the trial court found that the
Delaware Supreme Court had already rejected Appellant’s argument in both T alley
v. State] and State v. Lab0y2. In Laboy, the Court held that in order for the
defendant to be sentenced as a repeat offender, the State “only needed to establish

that he had twice been convicted, pled guilty, or participated in a DUI course or

 

‘ 2003 WL 23104202, at *2 (Del. 2003).

2 117 A.3d 562 (Del. 2015).

rehabilitation under § 4177 of ‘a similar statute of any state,”’ and the court found
certified court records to be sufficient to meet that burden.3

On Appeal, there are two questions before the Court. First, did sufficient
evidence exist for the trial court to convict Appellant of DUI? Secondly, can
participation in the Pennsylvania ARD be considered a “prior offense” pursuant to
21 Del. C. § 4177B(e)(1), regardless of notice to the defendant?

STANDARD OF REVIEW

This Court reviews appeals from the Court of Common Pleas in the same
manner as the Supreme Court would consider an appeal.4 `The Court’s function is
limited to correcting legal error and determining whether the factual findings made
by the trial judge are “sufficiently supported by the record and are the product of
an orderly and logical deductive process.”5 Errors of law are reviewed de novo.6
Findings of fact are reviewed only to verify that they are supported by substantial

evidence.7

 

3 Id. at 568.

4 Layne v. State, 2006 WL 3026236, at *l (Del. Super. Sept. 26, 2006).

5 State v. Anderson, 2010 WL 4513029, at *4 (Del. Super. Nov. l, 2010).
6 State v. Godwin, 2007 WL 2122142, at *2 (Del. Super. July 24, 2007).

71a

When the issue on appeal is the sufficiency of evidence to convict, the Court
must discern “whether, considering the evidence in the light most favorable to the
State, including all reasonable inferences to be drawn there from, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.”8 The Court does not distinguish between direct and circumstantial
evidence.9 Factual findings will be overturned only where the record below
indicates the trial court’s findings are “clearly wrong.”lo

DISCUSSION

I. THE EVIDENCE WAS SUFFICIENT TO SUPPORT A
CONVICTION

Appellant’s first argument may be dispatched in straightforward fashion.
The fact finder found him guilty on the evidence presented All facts that
suggested his guilt must be considered in the light most favorable to sustaining the
verdict.

Whether the defendant was “drunk”ll is not particularly relevant. Rather,

the State is required to produce sufficient evidence for a reasonable fact finder to

 

8 Church v. State, 2010 WL 5342963, at *1 (Del. Dec. 22, 2010) (citing Dixon v. State, 567 A.2d
854, 857 (Del. 1989)).

9 ld.
10 Anderson v. Sraze, 21 A.3d 52, 57 (Dei. 2001).

ll Lewis v. State, 626 A.2d 1350, 1355 (Del. 1993).

5

conclude that the defendant’s ability to drive safely was impaired by alcohol.12
The Delaware Supreme Court has held that determining whether this burden has
been met is “within the realm of common knowledge.”13 Accordingly,
investigative tests, such as chemical or sobriety tests, are not necessary to establish
the impairment required by statute.14 “The State may meet its burden by producing
circumstantial evidence of alcohol’S influence through the defendant’s conduct,
demeanor, and statements.”15

In this case, from the moment Corporal Angelucci made contact with
Appellant, Angelucci observed numerous indicators that Appellant was under the
influence. Appellant had trouble focusing on the officer, his speech was slow and
slurred, and his eyes were watery and glassy. Additionally, Corporal Angelucci
was able to detect an odor of alcohol, Appellant fumbled as he collected the
documents requested by Corporal, and Corporal testified that Appellant lost his
balance and swayed when exiting the vehicle. Once out of the vehicle, Corporal

Angelucci administered three field sobriety tests, and Appellant failed all three. In

the trial transcript, Corporal Angelucci was found to be “very credible”,

 

12 Id'
13 Chwch, 2010 WL 5342963, 31*2.
14 Id

15 Srevens v. Slme, 110 A.3d 1264, 1271 (Del. super. 2015).

6

“knowledgeable” and “held well under cross-examination.” The trial judge
characterized Corporal Angelucci’s testimony as “unimpeachable.”

While Appellant invites us to review all of the evidence, piece by piece, the
Court declines.16 He had an opportunity before a fact finder, who was in far better
position to gauge the credibility of the testimony, and the fact finder found proof
beyond a reasonable doubt. Barring some untoward evidentiary issue ~ a
complaint not raised here - this Court will not second guess the fact finder’s
verdict. The fact finder found Appellant guilty, and we see nothing in this record

to warrant second guessing that conclusion upon appellate review.17

 

16 For example, defendant urges that while his performance on 3 different field sobriety tests
was perhaps less than stellar, the likelihood that he was therefore under the influence was no
better than 80%. While that may be true as to a fail on any one test, the statistical probability of
failing all three tests but not being under the influence decreases dramatically. So if a fail on the
One Legged Stand yields about an 80% likelihood of intoxication, and a fail on the Horizontal
Gaze Nystagmus test also indicates an 80% likelihood of intoxication, the resultant likelihood
that our suspect is intoxicated does not remain at 80%. Rather, the odds increase by a multiple.
And having failed all three, any reference to statistics only reinforces the verdict based on all the
evidence.

17 Appellant also argues that he was entitled to a Deberry instruction due to the absence of audio
to accompany the video of the traffic stop as a result of a technical malfunction with Corporal
Angelucci’s MVR. Deberry v. State, 457 A.2d 744 (Del. 1983). This Court has already held in
DeLoach v. State that the Delaware State Police do not have an affirmative duty to video record
all driving under the influence investigations 2012 WL 2948188, at *4 (Del. Super. July 16,
2012). This Court held “a defendant is not entitled to a Deberry instruction for a police officer’s
failure to preserve his field notes taken during a DUI stop.” Ia’.

While it should be noted that it was a bench trial, the trial judge did give himself a
Deberry instruction as to the Appellant’s statements that were not audio recorded. Appellant was
not entitled to the Deberry instruction at the trial level, and the fact that the trial judge decided to
give the instruction anyway certainly does not mean that Appellant had the right to one. There is
no evidence that even suggests bad faith on the part of Corporal Angelucci and we are satisfied
that the lack of audio to the MVR video was simply a result of the device malfunctioning

7

II. THE EFFECT OF A PENNSYLVANIA ARD ON A
DELAWARE DUI CONVICTION

Appellant’s next argument concerns his sentencing as a second DUI
offender based on a prior Pennsylvania ARD. First, Appellant contends that he was
entitled to notice that participation in the ARD program would constitute a “prior
offense.” Second, Appellant argues that using the Pennsylvania ARD participation
as a “prior offense” violates his Sixth Amendment rights.

A. Notification of the Potential Consequences of an ARD on Subsequent
Convictions ls Not Necessarv.

Appellant’s first attack on the use of his Pennsylvania ARD is essentially
foreclosed by the existing law of this state. The rule was first articulated in
Krewson v. State, in which the Delaware Supreme Court held that where the
defendant is “under no illusion that he has entirely avoided the judicial process
with none of its statutorily imposed sanctions, there is clearly no requirement that
he be informed of every contingency, including subsequent offenses, which might
result in penalty enhancement.”18 Later, in State v. Carr, the Delaware Supreme
Court held that “we conclude that a conviction for driving under the influence,
which occurs as part of a judicial proceeding, is not rendered invalid because the

defendant was not given a judicial warning of the subsequent penalties which are

 

18 552 A.2d 840 (De1. 1998).

triggered by the first conviction. We further rule that a defendant electing to
participate in a first offender program, incident to a judicial proceeding, need not
be warned of the triggering effect of the first offense on any subsequent conviction

”19 These cases make clear that any “notice”

for driving under the influence
argument defendant may have elsewhere, there is no room for such an argument as

a matter of Delaware law.20

B. ARD Under Pennsylvania Law is Substantiallv Similar to Delaware’s
First Offender’s Program

Appellant’s Second point of attack on his predicate offense is that ARD in
Pennsylvania operates somewhat differently from an FOP under Delaware law.
Under our DUI laws, a prior FOP election “counts” as a predicate offense even if
the defendant successfully completes the requirements of the First Offender’s
Program and has not suffered a “conviction” for other purposes. The Code further
provides that completion of a program resembling Delaware’s FOP in a different
State should likewise “count” as a prior conviction for purposes of considering
whether the defendant is subject to sentencing as a first or subsequent offender.21

So, predictably, Appellant argues that Pennsylvania’s ARD provisions are

 

19 State v. Carr, 641 A.2d 833, 834 (Del. 1994).

20 See also Schez'nert v. Hena’erson, 800 F.Supp 263, 267 (E.D. Pa. 1992) (lack of notification
that ARD may enhance a future sentence does not deny defendant of due process);
Commonwealth v. Reeb, 593 A.2d 853 (Pa. Super. Ct. 1991) (notice that ARD may enhance
subsequent penalties not required).

2121 Del. C. § 4177B(e)(1).

distinctly different from Delaware’s FOP and even though he agrees he completed
ARD in Pennsylvania, it should not be counted as a prior conviction for
Delaware’s enhanced penalty purposes

States everywhere have enacted DUI first offender laws to give first
offenders a legal means to get their alcohol issues under control, obtain treatment
and go on with their lives without suffering the collateral burdens of a
“conviction.” The variety of these experiments is as imaginative as the legislatures
that pass them. Delaware recognizes that the states vary by programming and
nomenclature and therefore makes no attempt to specifically identify them by
name Instead we are instructed to consider the sister state’s program and
determine if it is “a similar statute of any state, local jurisdiction, any federal or
military reservation or the District of Columbia.”22

Appellant essentially concedes that ARD is a rehabilitative program offered
to offenders charged with DUI in order to avoid a conviction.23 And he concedes
he elected an ARD disposition in 2011. Appellant argues that if one elects an
ARD with a BAC between .08 and .10, then ARD is available again should a

driver pick up a second DUI within 10 years. Delaware has no comparable

provision. But this is truly the proverbial distinction without a difference The

 

11 21 Del. C. § 4177B(e)(1)(d).

23 See 75 Pa. C. s. § 3807.
10

required instructional/rehabilitative program is in pari materia with Delaware’s
FOP program; indeed, defendant does not argue otherwise The fact that
Pennsylvania allows its drivers a “second bite” sometimes, under the right
circumstances, does not change the fundamental character of the “first bite,” which
is what the “first” offender’s program is all about. This argument might be more
interesting if the State were pressing for a third offense sentencing after a
Pennsylvania driver had two prior trips through Pennsylvania’s ARD program, but
that is not this case

Appellant’s second attack on “similarity” grounds is that a Delaware FOP
failure is met with an adjudication of guilty of the offense charged, while a
Pennsylvania ARD failure is met with a return to Court for adjudication

There are any number of ways for the courts to respond to a failure in a
diversionary program. Some courts may accept a “conditional guilty plea” in
which the defendant tenders a guilty plea but the Court sets it aside pending
successful completion of programming If the defendant completes successfully,
the guilty plea is discarded; if he fails, it is “accepted” and the defendant is
sentenced accordingly.24 A second approach is a “stipulated non-jury trial” in

which the defendant admits to all of the facts contained in the police reports and

 

21 See 21 De1. C. § 4177B.

11

waives a jury trial. The diversion court judge accepts all of this but makes no
finding unless and until the defendant fails in the diversion programming25

Probably the least efficient approach is to defer any adjudication until there
has been a program failure and then require the State to marshal and produce all of
its evidence of the defendant’s guilt despite its making the ameliorative effects of
the deferred adjudication available to him. This is the path chosen by
Pennsylvania.26 So the question becomes: does Pennsylvania’s inefficient method
for resolving the charge in light of a program fail make its ARD program
Sufficiently different from Delaware’s FOP program to render a prior ARD
resolution ineffective as a sentence enhancer under Delaware’s DUI law?

We think the answer is clearly no. The essence of a “similar” program is not
the procedural consequences of a fail, but the steps required of drivers who
succeed in the program. Almost universally, these programs seek to ensure that the
driver has suffered some consequence that reinforces the undesirability of the
behavior, but more importantly does something affirmative to deal with his alcohol

issue The Pennsylvania ARD program includes some rather elaborate checks on

 

25 Delaware Superior Court, A Particz'pant’s Guz'de/Handbook to the Drug Court Diversion
Program (2015),
http://courts.delaware.gov/superior/pdf/drug_court_participants_handbook_english_201 5 .pdf

26 75 Pa. C. s § 3807(@).

12

the severity of the driver’s issues that may include inpatient rehab.27 These are the
very issues the General Assembly addressed in its FOP law. Exactly how a state
chooses to address the consequences of a failure of the programming is not
particularly germane to the purposes for which these deferral programs exist.

III. THE SIXTH AMENDMENT IS NOT A BAR TO

CONSIDERATION OF DEFENDANT’S PRIOR ACCEPTANCE OF

ARD.

Appellant saves his most pointed criticism for last, arguing that his
Pennsylvania ARD resolution in 2011 cannot be considered a predicate offense
because doing so is barred by the Sixth Amendment.

While not exactly a model of clarity, we understand Appellant’s argument to
be that his ARD participation was used to enhance the penalty imposed and since
his ARD resolution was not presented to the fact finder in an adjudicatory
proceeding, it runs afoul of the U.S. Supreme Court’s jurisprudence in Apprendz' v.
New Jersey28 and its progeny.

But the biggest hurdle Appellant must overcome for his argument to succeed

is Almena’arez-Torres v. United States.29 This was a case in which the defendant

was prosecuted and convicted for illegal entry into the United States after having

 

21 75 Pa. c. s. § 3807(1>)(11)-(111).
28 530 U.s. 466 (2000).

22 523 U.s. 224 (1998).
13

been previously deported upon conviction for felonies in the United States.
Because of the prior convictions, his sentence was statutorily “aggravated” beyond
that called for in a “normal” illegal reentry case The defense argued that the
aggravator (prior felony convictions) should not apply because it had not been
found by a jury - or even charged in the indictment by the prosecution

The United States Supreme Court distinguished the Apprena’i line of cases
when it comes to consideration of a defendant’s prior record. Since the aggravated
sentence “simply authorizes a court to increase the sentence for a recidivist,” it was
not an element of an offense and need not be charged in the indictment or proven
up to a jury. According to the Court, “the sentencing factor at issue here_
recidivism_is a traditional, if not the most traditional, basis for a sentencing
court’s increasing an offender's sentence.”30

A second consideration bears mention here: if Appellant were correct, that
his prior record, be it an ARD, FOP or prior conviction for DUI, which would also
enhance his penalty, were constitutionally required to be found by a jury, there is
obvious prejudice to the defendant resulting from such disclosures in the midst of

the factual findings of his guilt or innocence of the charged offense As the Court

put it, “we do not believe, other things being equal, that Congress would have

 

201¢1. 31243.
14

wanted to create this kind of unfairness in respect to facts that are almost never
contested.”3 l

So while there is indeed a tantalizing argument to be made that defendant’s
ARD resolution must be submitted to a jury, the argument is refuted when the
“prior conviction” merely structures the penalty in a way it would not otherwise
have been structured In such cases, Almena’arez-Torres takes the prior record out
of the jury’s fact finding function and, consequently, the Apprena’i “rights”
guaranteed by the Sixth Amendment

The remaining argument Appellant makes is that even if his prior record is
not subject to a jury finding, his ARD is not a “conviction” and it is only
“convictions” that a Court may consider in the absence of a jury finding; a Court
may not “find” a “prior” ARD. This argument is simply illogical. First, Appellant
conceded the existence of the prior ARD in 2011 in Pennsylvania. There is no
question but that he underwent this process Second, the State produced certified
records that were not impeached Third, as a matter of Pennsylvania law, it is the

acceptance of ARD that triggers its “counting” for enhanced sentencing for

subsequent DUI convictions32 lf the defendant accepted ARD, it matters not how

 

311d. a1235.

32 See Commonwealth v. William Love, 957 A.2d 765 (Pa. Super. 2008) (trial court properly
considered defendant’s acceptance of ARD for his first DUI violation as a prior offense
occurring within statutory ten-year look-back period of defendant’s second DUI violation,

15

he performed in the program, it all “counts” as a prior for subsequent offense
purposes

Finally, recalling our earlier discussion about the variety of ways States work
out the consequences of a driver’s failure to complete his diversion programming,
some result in virtually automatic convictions, some in only potential convictions
ln fact, in Pennsylvania, an ARD “counts” as a prior “conviction” even if the
driver fails out of the ARD program, is brought back to court and is acquitted of
the underlying DUI.33 lt is the acceptance of the diversionary process that triggers
the enhanced penalty, not the conviction in the event of failure

Frankly, given Appellant’s somewhat sprawling arguments, we are not sure
if we have covered them in sufficient detail, so we will add this. Appellant goes on
about ARD not being a “conviction” and that Apprena’i and Almarendaz-Torres
limits a Court’s non-jury findings to prior convictions, not these “off brand”
resolutions that do not result in convictions We think the answer is that defendant
places too much weight on the term “conviction.” 21 Del. C. § 4177B(d) includes
not only out of state convictions, but also “a conditional adjudication of guilt, any
court order, or any agreement sanctioned by a court requiring or permitting a

person to apply for, enroll in or otherwise accept first offender treatment or any

 

notwithstanding that ARD acceptance was later revoked and the second violation occurred
before defendant was sentenced for first offense).

33 See Com. v. Bowers, 25 A.3d 349 (Pa. Super. 2011).
16

other diversionary program...” as well as “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.”

So, as a matter of statutory construction, the Court has no doubt but that
Appellant’s ARD and course of treatment moves Appellant into the category of
repeat offender under the Delaware Code His further protestations that the Sixth
Amendment or Apprena’i prohibit consideration of the ARD disposition fail as a
matter of law and must be rejected

Judgment Affirmed.

IT IS SO ORDERED.

 

/.l'udge Charles E\Butl& )

17

