IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JACLYN MUNCE, : C.A. No.: SlSA-12-002
Case No.: 18070()6510 (J.P. Ct.)
Complainant in Error, : 1807020747 (Super. Ct.)
v.
JUSTICE OF THE PEACE

COURT NO. 14, STATE OF
DELAWARE, AND MAGISTRATE
MICHELLE JEWELL,

Defendants in Error.

Submitted: February 5, 2019
Decided: February 8, 2019

Upon the State of Delaware ’s Motion to Dismiss
Defena’ant’s Petitionfor Writ of Certiorari. Granted.

MEMORANDUM OPINION

Stephen W. Welch, Esquire, Law Offlce of Edward C. Gill, P.A., Georgetown, Delaware,
Attorney for Petitioner/Defendant.

Caroline C. Brittingham, Esquire, Delaware Department of Justice, Georgetown,
Delaware, Attorney for the State of Delaware.

KARSNITZ, J.

`Nature of the Proceedings

Petitioner Defendant Jacyln Muncel filed a petition for Writ of Certiorari asking
this Court to review a judgment of the Justice of the Peace Court (“JP Court”). That
judgment vacated Defendant’s plea and sentence to a misdemeanor first offense charge of
driving under the influence The JP Court’s decision allowed the State of Delaware
(“State”) to indict Defendant on the more serious charge of felony third offense driving
under the influence Defendant seeks to have the Order set aside

Factual Background"

This case proves the vitality of Murphy’s Law. Defendant was arrested on July 9,
2018, and charged with driving under the influence pursuant to ll Del. C. §4177(a) and
another minor offense She was scheduled to be arraigned in JP Court on July 27, 2018.
At her arraignment, Defendant pled guilty to the charge as a first offense and was
sentenced to a period of supervised probation and a $500.00 fine Eighteen days later, the
State filed a motion entitled “Motion to Correct Illegal Sentence” with JP Court. The
motion was treated as a motion to vacate Defendant’s sentence The motion asserted that

the defendant had two prior convictions that would qualify as “prior offenses,”3 triggering

 

'Petitioner is in fact the petitioner in this civil complaint. She Was, and is, the defendant
in her criminal case described herein. For ease of reference, and because through much of the
history of this matter she was described as the defendant, I will continue to use that
nomenclature

2 The facts are derived from the filings of the parties and do not appear disputed.

3211)€1. C. § 4177(d)(11).

the enhanced penalties of 21 Del. C. §4177(d)(3). Why information about the prior
offenses was not known at an early time or, in particular, at the time the plea was entered
and the sentence imposed is unknown.

The parties submitted legal authorities to JP Court and a hearing was held
following which the parties made further written submissions to the Court. On November
28, 2018, the Justice of the Peace Court issued a decision granting the State’s motion to
vacate the plea and sentence The Court determined it had no jurisdiction to hear the case
against defendant4

The State’s argument was straight forward. Section 4177(d)(3)-(9) of Title 21
elevates any driving under the influence charge that is a third offense or more to a felony
and, therefore, any such charge falls outside the subject matter jurisdiction of JP Court.
Specifically, 21 Del. C. §4177(d)(12) provides:

The Court of Common Pleas and Justice of the Peace
Courts shall not have jurisdiction over offenses which
must be sentenced pursuant to paragraph (d)(3), (d)(4),
(d)(5), (d)(6), (d)(7), (d)(8) or (d)(9) of this section.

According to the State, the entire processing of the case against defendant was
void ab initio and the guilty plea and sentence were property vacated.

The State now has indicted defendant in Superior Court for felony driving under

the influence In response, Defendant has filed a petition for Writ of Certiorari asking

this Court to enter an order requiring JP Court to vacate its November 28, 2018 order, and

 

4 see 21 Del. C. §4177(d)(12).

restore Defendant’s original conviction of first offense driving under the influence Of
course, to Defendant the action is critical. If the requested relief is granted, she will
suffer the more modest penalties associated with first offender status. If the relief is not
given, and she either pleads or is found guilty of the felony charge of third offense driving
under the influence, she will be sentenced as 2l Del. C. § 4177(d)(3) dictates.

The State has filed a response to the petition and requested that I dismiss it on its
face. Argument was held on the State’s application on February 4, 2019, and this is my
opinion and decision on the State’s request.

There is an element of this case that reeks for lack of finality. Defendant did as the
Court and the State required of her, was sentenced, and proceeded on with her life. On
the other hand, Defendant, and perhaps no one else at the time of her sentencing, knew
she had offended on two prior occasions. In a similar case, State v. Zickgmf,5 the State
initially treated a driving under the influence charge as a first offense but, upon discovery
of prior offenses, the State entered a nolle prosequi in the Court of Common Pleas
(“CCP”) and brought the charge in Superior Court. The defendant argued the indictment
should be dismissed because the State erred in filing first in CCP. As Judge Ableman
remarked, “The solution... is not to grant a windfall escape to a defendant who seems to

have an alarming habit of driving drunk....”6

 

5 2005 WL 4858688 (Del. Super. Ct. Aug. 19, 2005) (“Zickgraf’).

6Ia'.,at"‘l.

The comprehensive statute that addresses the serious societal problem of operating
a motor vehicle after consuming alcohol did not contemplate the specific circumstances
of this case However, in my opinion, the clear intent of the statute is to ensure that
multiple offenders are dealt with stringently, and with a third (or more) strike, with felony
charges. There is no doubt that the Legislature wanted and commanded in no uncertain
terms that any offenses beyond a second one be heard in Superior Court, and not in either
JP Court or CCP. Based on the record in this case, I must deny Defendant’s petition and
grant the State’s application to dismiss it.

MMQF_IMU

A Writ of Certiorari is a common law writ which can be issued by a Superior
Court to one of lesser jurisdiction demanding review of the record in the lower court.
Delaware law provides both the Supreme Court and the Superior Court the power to
review lower court decisions upon Writ of Certiorari.7 The Superior Court may issue a
Writ of Certiorari to all inferior tribunals, including the JP Court.8 Because the result of
the decision of the JP Court in this case was a determination that there was no conviction,
Defendant had no right to appeal. The only mechanism for review of the JP Court order
is the one pursued by Defendant.

At oral argument, the parties indicated there were no material disputes of fact and

 

710 Del. C. §§ 142, 562.
8 Shoemaker v. State, 375A.2d 431 (Del. 1977)

4

the case could be decided as a matter of law.
The Parties’ Cnntentions

The State’s position was as set forth previously and will not be repeated Suffioe it
to say, the State advocated that no jurisdiction lay in JP Court, and the Justice of the
Peace was correct in vacating all her action.

Defendant raises several issues. First, Defendant cites State v. Laboy9 to support
her claim that it was the State’s burden to provide evidence to the Court prior to her
sentencing to establish the applicability of 21 Del. C. § 4177(d)(3) and its failure to do so
vested JP Court with jurisdiction, since Defendant’s offense would necessarily then be
considered a first offense In Laboy, our Supreme Court stated that the State could prove
previous offenses by court records, and did not need to prove them beyond a reasonable
doubt. Defendant asserts Laboy requires the State to provide some evidence of prior
convictions and because it provided none here, her case must be treated as a first
offense '0

At argument on the State’s motion, Defendant’s counsel admitted that his client
had two prior qualifying offenses. Defendant’s counsel also admitted that the timing of

the State’s discovery of Defendant’s prior offenses was the determining factor. Had the

 

9 117 A.3d 562 (Del. 2015).

'0 The parties differed on the question of who, or if anyone, on behalf of the State was
present at Defendant’s arraignment when she was allowed to enter a plea to a first offense The
State claims no one was there and Defendant believes a police officer was present. In my view,
this factual question is not material to the issues.

5

State appeared before sentencing, it would have been permitted to raise the issue, dismiss
the charges, and indict Defendant in Superior Court on the more serious offense By
failing to do so, Defendant claims the State lost this ability.

Several cases are worthy of discussing. In Zickgraf, the State charged the
defendant in JP Court with driving under the influence Defendant removed his case to
CCP. Before much else happened, the State realized that the defendant had three prior
driving under the influence charges. The State dismissed the charges in CCP, and
indicted the defendant in Superior Court. The defendant subsequently moved to dismiss
the indictment The Court determined that the Attorney General’s actions were in
accordance with the law and that jurisdiction lay in Superior Court, not in CCP. The
Court denied the defendant’s motion and allowed the case to proceed

In State v Hatcher,“]udge Davis had to resolve a case that was a few steps further
towards resolution than Zickgraf. In Hatcher, the defendant was charged with a second
offense driving under the influence The defendant disputed the charge, went to trial, and
was found guilty. The court ordered a pre-sentence investigation in which it was
determined that the defendant had three prior convictions for driving under the influence
Both the defendant and the State argued that the court had jurisdiction because, inter alia,
the Attorney General’s office as a matter of discretion could reduce the “charge.” The

court rejected the arguments, found it had no jurisdiction, declared its finding of guilt a

 

ll2010 WL 5551306 (Del. Ct. Com. Pl. Dec. 20, 2010).
6

nullity and vacated the finding of guilt. The court also gave the State time to indict the

defendant in Superior Court.

This case takes the issue once step further -the State raised the additional
offenses/enhanced penalties issue eighteen days post sentencing. Section 4177(d)(1l) of

Title 21 reads in pertinent part:

...if at any time after conviction and before sentence it
shall appear to the Attomey General or to thc Sentencing
M that by reason of such conviction and prior or
previous convictions, a person should be subjected to

Paragraph (d)(3), (d)(4), (d)(5), (d)(6) 01‘ (d)(7) OfthiS

section, the Attomey General shall file a motion to

have the defendant sentenced to those provisions.

lf it shall appear to the satisfaction of the Court at a

hearing on the motion that the defendant falls within

paragraph (d)(3)... of this section, the Court shall

enter an Order declaring the offense for which the

defendant is being sentenced to be a felony.12

Several directives of this law stand out. First, the word “shall” is used; the statute

is mandatory. Second and at first blush, the quoted section of §4177 seems to support
defendant’s argument that the “prior convictions” issue must be raised before sentencing
The problem with this argument is that §4177(d)(l 1) contemplates that the “sentencing
court” is the Superior Court, not any of the other Courts who hear the “non-enhanced”
driving under the influence cases. The court in Hatcher reached the same conclusion,

with which l agree The last sentence of the quoted section of the law mandates the court

enter an order declaring the offense a felony and only Superior Court can do so. In this

 

'2 21 Del. C. § 4177(d)(l l) (emphasis added).
7

case, the Superior _Court has not acted at all, and thus the timing dictates quoted above
have no application.

Finally, 2l Del. C. §4177(d)(l2) could not be more clear. If evidence shows
multiple (more than two) offenses neither JP Court nor CCP has jurisdiction and any
action taken in any such case by JP Court or CCP is, as Judge Davis said in Hcitcher, a
nullity.

Defendant also raised an issue in her petition concerning the double jeopardy
clause of the State and Federal Constitutions. Defendant’s counsel properly conceded
that a determination by a court without jurisdiction did not implicate the constitutional
provisions and the codification of them in ll Del. C. § 210.

Q)Mif>_n

This case raises troubling process and timing issues of handling driving under the
influence cases. While not before me, I have concerns about the existence of similar
cases which may have greater time lags than eighteen days between sentencing and the
State’s discovery, and raising of, prior offenses, At some point a final judgment should
and must become final. However, in this case, the State acted promptly and within any
normal appeal period Because the JP Court properly found it lacked jurisdiction to hear
Defendant’s case, it properly vacated its judgment. As a result, there is no basis for the
petition for Writ of Certiorari and it must be dismissed

IT IS SO ORDERED.

