IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

)
OMARR J. SCOTT )
)
Appellant, )
) ID# 1408()03726, 1605010033
v. ) 1606017066, 1607023828, and
) 1611018494
STATE OF DELAWARE, )
)
Appellee. )
)

Submitted: October 4, 2018
Decided: Decernber 18, 2018

On Appeal from the Court of Cornrnon Pleas.
REVERSED.

MEMORANDUM OPINION

Benjamin S. Gifford IV, Esquire, LaW Offlce of Benjamin S. Gifford IV,
Wilmington, DelaWare, Attorney for Appellant Omarr J. Scott.

Erik C. ToWne, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, DelaWare, Attorney for Appellee the State of Delaware.

COOCH, R.J.
I. INTRODUCTION

Before this Court is Appellant’s appeal of a Court of Cornmon Pleas’ January
l6, 2018, ruling in live cases of Driving While Suspended pursuant to 21 Del. C.
§ 2756(a), adjudicated by a consolidated bench trial, finding Appellant guilty of all
five charges. Appellant Was ultimately sentenced to four years of Level V
incarceration, suspended after two years for one year of Level III probation.
Appellant’s appeal raises one issuer Whether he Was properly convicted (from five
separate occasions) of Driving While Suspended under 21 Del. C. § 2756(a), When

he drove a motor vehicle on a public roadway after his license suspension period
ended, but before he paid the license reinstatement fee.

The Court finds that Appellant should not have been convicted under 21 Del.
C. § 2756(a) under the facts of this case and because of a decision by the Delaware
Supreme Court in Dehorty v. State, 2002 WL 31946069 (Del. 2002), that stated:
“While [the defendant] did drive at the time of the offense Without having taken steps
to reinstate her license, her actual revocation period expired [a year before her
offense] At most, the record reflects that she could have been charged with and
convicted of Del. Code Ann. tit. 21 § 2701 (b) [instead of Driving While Suspended
pursuant to 21 Del. C. § 2756(a)].”] Here, Appellant drove a motor vehicle after his
license suspension period ended, but before his license Was reinstated. As this Court
reads Dehorty, the most that the Appellant in this case could have been convicted of
Was Driving Without a License under 21 Del. C. 2701(b). Accordingly, and as Was
ordered by the Delaware Supreme Court in Dehorty, the Court vacates Appellant’s
five convictions under § 2756(a).

II. FACTS AND PROCEDURAL HISTORY

The Delaware Division of Motor Vehicles (“DMV”) initially suspended
Appellant’s license and driving privileges on September 2, 2011, for a period of six
months due to lack of insurance. More than a year after his initial suspension period
ended, the DMV suspended Appellant’s license and driving privileges for a second
time on November 22, 2013, for a period of two months. The second period of
suspension ended on January 22, 2014. For each suspension, Appellant received an
official notice of suspension from the DMV Which stated that in order to be eligible
for reinstatement, Appellant Was required to serve the full term of the suspension
and pay a $25.00 reinstatement fee at the DMV.2 The notice stated “[y]our driver
license and/or driving privileges remain suspended until this fee is paid.”3 Although
the DMV did not suspend Appellant’s privileges a third time, Appellant never took
Steps to reinstate his license after either the 2011 or 2013 suspensions.

From August 6, 2014, to February 13, 2017, Appellant Was charged by
information in the Court of Common Pleas With a multitude of traffic violations as

 

1 Dehorty v. State, 817 A.2d 804 (Table), 2002 WL 31946069, at *2, 117 (Del. 2002) (No. 494,

2000)
2 State’s Answering Br. at 12, n.20.
3 Id. at l9.

a result of several traffic stops.4 In total, Appellant faced five counts of Driving
While Suspended,5 one count of Driving Without a License,6 one count of Failure to
have Required Insurance,7 two counts of Expired Tags,8 one count of Failure to Have
Insurance Identification in Possession,9 and one count of Failure to Have License in
Possession.10 On August 8, 2017, Appellant’s cases proceeded to a consolidated
bench trial in the Court of Common Pleas. After trial, the parties Were ordered to
brief the legal issues presented during trial, specifically Whether Appellant’s driver’s
license and privileges Were suspended at the time of the five traffic stops.11 The
dispositive issue for the five counts of Driving While Suspended Was Whether
Appellant Was still legally suspended for the purposes of 21 Del. C. § 2756(a) after
his period of suspension ended, but before Appellant paid the $25.00 reinstatement
fee to the DMV to reinstate his license. The Court considered the official notices of
suspension that Appellant received, as well as the testimony of Mrs. Kami Beers,
Chief of Driver Services for the DMV, Who stated that “there Were various
requirements Which must be lillfilled to lift a suspension, including paying fines
[and] a suspension remains in effect until the enumerated conditions are
completed.”12 At the time of each of the underlying traffic stops Appellant’s Full
Driving Record on file With the DMV listed him as suspended.13

The Court of Common Pleas issued its Written decision on January 16, 2018,
and found Appellant guilty of five counts of Driving While Suspended, one count of
Driving Without a License, two counts of Failure to Have Required Insurance, and
two Counts of EXpired Tags.14 The parties did not cite Dehorty in their briefs below,
nor did the Court of Common Pleas discuss that case. ln essence, the Court of

 

4 Appellant Was charged based on five traffic stops that occurred on: August 4, 2014; May 14,
2016; June 21, 2016; July 31, 2016; and November 28, 2016. Appellant Was charged by five
separate informations dated: August 6, 2014; June 20, 2016; August 1, 2016; August 17, 2016;
and February 13, 2017. See State’s Answering Br. at 1-2.

5 21 Del. C. § 2756(a).

6 21 Del. C. § 2701(b).

7 21 Del. C. § 2118(a).

8 21 Del. C. § 2115(1).

9 21 Del. C. § 2118(p)(l).

10 21 Del. C. § 2721(b).

11 State’s Answering Br. at 2.

12 Ia'. at 7.

13 State v. Scott, 2018 WL 1801269, at *3-4 (Del. Com. Pl. Jan. 16, 2018).

14 Scott, 2018 WL 1801269, at *11. After the State’s case in chief, Appellant moved for Judgment
of Acquittal pursuant to Court of Common Pleas Criminal Rule 29(a), as to the charge of Failure
to Have License in Possession. The motion Was granted as to that charge alone, because Appellant
had never been issued a valid license. Id.

Common Pleas held, with respect to defining the period of suspension under 21 Del.
C. § 2756(a), that “‘the key determination’ [was] whether Defendant possessed
driving privileges when he Was charged.”15 The Court held that a period of
suspension “not only includes the monthly ‘term of the suspension,’ but also the
period prior to reinstatement of the offender's driver's license or driving
privileges.”16

On February 13, 2018, Appellant was sentenced to an aggregate of four years
Level V incarceration, suspended after two years for one year Level lll probation.17
On May 15, 2018, Appellant filed a timely Notice of Appeal to this Court.

III. PARTIES’ CONTENTIONS

A. Appellant’s Contentions

Appellant argues that the Court of Common Pleas committed reversible error
by finding him guilty of five counts of Driving While Suspend or Revoked under 21
Del. C. § 2756(a). Appellant contends that a violation of § 2756(a) can only occur if
an offender drives a motor vehicle “during the period of suspension or
revocation[.]”18 Conversely, the language in 21 Del. C. § 2701(b) - Driving Without
a License states that an offender is in violation if the offender operates a motor
vehicle “after serving a period of suspension, revocation, or license denial, without
first having obtained a valid license through reinstatement procedures[.]”19
Appellant argues that he was eligible to initiate the reinstatement process, but merely
“failed to reinstate [his driving] privilege[s] after serving the entirety of his period
of suspension.”ZO Thus, Appellant contends, at most he could have been charged with
and convicted of Driving Without a License under § 2701(b).

Appellant strongly relies on the Delaware Supreme Court’s holding in
Dehorty v. State. In Dehorty, the defendant-driver appealed inter alia her conviction
under 21 Del. C. § 2756(a), arguing that she could not be convicted under the statute
because her revocation period had expired before her alleged misconduct.21 The
Delaware Supreme Court vacated Dehorty’s conviction of Driving While

 

15 Id. (citing State v. Kimbi, 2015 WL 5007981, at *2 (Del. Com. Pl. Aug. 21, 2015)).

16 Id.

17 State’s Answering Br. at 2.

18 21 Del. C. § 2756(a) (emphasis added).

19 21 Del. C. § 2701(b) (emphasis added).

20 Appellant’s Opening Br. at 7, 11_12.

21 Appellant’s Opening Br., Dehorty, 2002 WL 31946069, D.I. 13, at 26-27 (Del. Mar. 5, 2001).

Suspended, The Court explained that while Dehorty failed to take steps to reinstate
her license, her revocation period had expired by the time of the offenses charged.22
Appellant contends that Dehorty is binding precedent and “directly addressed” the
issue on appeal before this Court.

B. Appellee ’s Contentions

The State argues that the Court of Common Pleas correctly determined that
Appellant drove a motor vehicle on a public roadway during a period of suspension
or revocation, because Appellant’s suspensions were still in effect according to the
DMV records. The State stresses that Dehorty is distinguishable because the
prosecution in Dehorty did not submit any evidence regarding whether defendant-
driver had other conditions, beyond the period of suspension, to fulfill before she
could reinstate her license. ln the instant appeal, the notice Appellant received from
the DMV stated “[y]our driver license and/or driving privileges remain suspended
until this fee is paid.”23 Furthermore, Kami Beers, Chief of Driver Services for the
DMV, testified at trial that “there were various requirements which must be fulfilled
to lift a suspension, including paying fines [and] a suspension remains in effect
until the enumerated conditions are completed.”24 Thus, the State contends that due
to Appellant’s “inaction to satisfy[] all of the enumerated conditions on two proper
DMW suspensions, both underlying suspensions remained in effect on [Appellant’s]
license and driving privileges at the times charged.”25 Essentially, the State argues
that Appellant’s suspension remained in effect beyond the enumerated time period,
and was still in effect at the time of the underlying traffic stops, because Appellant
failed to satisfy the additional requirement to pay a fee to reinstate his license. 26

IV. STANDARD OF REVIEW

“ln reviewing appeals from the Court of Common Pleas, this Court sits as an
intermediate appellate court, and its function mirrors that of the Supreme Court.”27

 

22 Dehorty, 2002 WL 31946069, at *2, 117.

23 State’s Answering Br. at 19.

24 Id. at 7.

25 Id. at 4.

26 Id. at 19.

27 DeLoach v. State, 2012 WL 2948188, at *3 (Del. Super. Ct. July 16, 2012) (citing Baker v,
Connell, 488 A.2d 1303, 1309 (Del. 1985)); See also State v. Richards, 1998 WL 732960, at *1
(Del. Super. Ct. May 28, 1998).

“Questions of law are subject to de novo review.”28 This Court also reviews issues
of statutory construction de novo to determine whether the Court of Common Pleas
erred as a matter of law in interpreting a statute.29

V. DISCUSSION

A. Pursuant to the Delaware Supreme Court’s holding in Dehorty v. State,
Appellant’s convictions under 21 Del. C. § 2756 must be vacated.

Appellant’s case is very similar to that of the defendant-driver in Dehorty. In
Dehorty, the defendant-driver appealed inter alia her conviction under 21 Del. C.
§ 2756(a), arguing that she could not be convicted under the statute because her
period of suspension had expired before her alleged misconduct.30 Notably, the State
in Dehorty conceded on appeal that Dehorty should not have been convicted under
§ 2756(a), but rather convicted under 21 Del. C. § 2701(b).31 ln its answering brief
in Dehorty the State broadly “concede[d]” that:

Shelly Dehorty was indicted for the offense of driving while suspended or revoked

.. in that she drove a motor vehicle on December 24, 1999, when her driver’s
license was suspended or revoked. The record shows a 12 month revocation,
effective May 5, 1997. In order to be convicted of driving during revocation
under 21 Del. C. § 2756(a), the State was required to prove that Dehorty’s driver’s
license was validly revoked in 1997 for 12 months and that she drove during the
period of revocation. The State concedes that since Dehorty ’s revocation period
expired on May 5, 1998, [one year and seven months before the underlying
onense,] she can not legally be convicted of driving during revocation but should
have been convicted of the lesser included ojj”ense of failing to reinstate her driver ’s
license as a second offense As a result of the State’s confession of error in this
regard, this Court should vacate the driving during revocation conviction and
sentence and remand this case back to the Superior Court with instruction to enter
a conviction for failing to reinstate her license. . .”32

Adopting the State’s concession, the Delaware Supreme Court vacated Dehorty’s
conviction of Driving While Suspended or Revoked. The Court explained that while
Dehorty had failed to take steps to reinstate her license, her period of suspension had
expired by the time of the offenses charged. The Supreme Court stated:

 

28 DeLOClCh, 20l2 WL 2948l88, at *3 (Citing J.S.F. PFOpS., LLC v. MCCann, 2009 WL ll63494,
at *1 (Del. Super. Ct. Apr. 30, 2009)).

29 Snyder v. Andrews, 708 A.2d 237, 241 (Del. 1988).

30 Appellant’s Opening Br., Dehorty, 2002 WL 31946069, D.I. 13, at 26-27.

31 State’s Answering Br., Dehorty, 2002 WL 31946069, D.l. 15, at 18-20 (Del. Apr. 4, 2001).

32 Id. at 19_20 (intemal citations omitted) (emphasis added).

We must, as the State has conceded, vacate the judgment and sentence for the
conviction of Driving While Revoked. While Dehorty did drive at the time of the
offense without having taken steps to reinstate her license, her actual revocation
period expired on May 5, 1998 after a one year revocation period. This offense
occurred on December 24, 1999. At most, the record reflects that she could have '
been charged with and convicted of Del. Code Ann. tit. 21 § 2701 (b).33

In response to Appellant’s new (on appeal to this Couit) reliance on Dehorty,
the State argues that in Dehorty the prosecution did not present evidence of
additional requirements that Dehorty needed to fulfill before she could reinstate her
license, as was done in this case at the trial in the Court of Common Pleas. The State
argues the lack of evidence of additional requirements distinguishes Dehorty from
the instant appeal, in which the evidence established that Appellant was required to
pay a reinstatement fee. In support of its argument, the State cites two cases in which
a defendant-driver’s license and privileges were considered suspended or revoked
when the underlying offense occurred after the period of revocation ended. First, in
Bowersox v. State, the Delaware Supreme Court, when examining 21 Del. C. § 2810,
held a driver’s license remained suspended beyond the yearly term of suspension
until the driver satisfied all of the conditions listed under 21 Del. C. § 2809,34
Bowersox’s license had been suspended due to his habitual offender status, pursuant
to 21 Del. C. § 2802. Bowersox was then subsequently arrested for driving a motor
vehicle and indicted under 21 Del. C. § 2810 _ Driving after Judgment. Section 2810
“prohibits a person from driving a motor vehicle while a judgment of the Court
prohibiting such operation remains in effect.”35 The underlying judgment of the
Court suspended Bowersox’s driving privileges for five years, and stated he
remained “subject to the provision of [Title 21,] Chapter 28 of the Delaware Code
until the effective terms of the order ended.”36 Under 21 Del. C. § 2809, Bowersox
was required to fulfill several statutory conditions before reinstatement37 Bowersox
failed to fulfill all conditions at the time of the underlying offense, and thus could be
properly convicted of Driving after Judgment.38

In State v. Taye, the second case relied upon by the State, the defendant-driver
“[was] a paraplegic, who did not undertake special lessons to drive in his condition,
and was not licensed to drive as a handicapped driver. His license was revoked in

 

33 Dehorty, 2002 WL 31946069, at *2, 117 (emphasis added).
34 BOW€FSOX v. State, 819 A.2d 301 (D€l. 2003).

33 Id. at 304.

36 Id

37 S€€ 21 Del. C. §2809.

38 Bowersox, 819 A.2d at 304.

May 2005 prior to becoming a paraplegic.” 39 Subsequent to his own injury, in
December 2008, Taye collided with emergency responder at the scene of an accident
on U.S. Route 13, killing the emergency responder. Taye had not reinstated his
license between May 2005 and the December 2008 accident. He was convicted of
driving while suspended or revoked.40 The Superior Court found that:

The evidence shows that Taye's driving privileges had been revoked since May
2005, and had not been reinstated The evidence determined beyond a reasonable
doubt that Taye was not properly specially licensed as a paraplegic to operate a
motor vehicle. As to Count Vl-Driving a Vehicle While License is Suspended
or Revoked: Joseph Taye's license was revoked in May 2005 and never re-instated.
Accordingly, he is guilty beyond a reasonable doubt of driving a vehicle while
license is suspended or revoked.41

The Court in Taye did not, however, articulate what driving while suspended or
revoked encompasses, or address whether there is a distinction between driving
during a period of suspension versus driving after a period of suspension ends but
before reinstatement.42 Nevertheless, the State contends that Appellant, much like
Taye, failed to complete additional requirements; paying the reinstatement fee in the
Appellant’s case. Thus, the State believes Appellant remained suspended at the time
of the underlying offenses for the purposes of § 2756(a). The State argues that both
Bowersox and Taye are analogous to Appellant’s case.

The State’s arguments, apart from Dehorty’s holding, do have some merit.
However, neither Bowersox nor Taye directly address the issue on appeal before this
Court. The Supreme Court in Bowersox discussed the narrow issue of suspension
pursuant to 21 Del. C. § 2802, Here, Appellant was not suspended under § 2802,
therefore Bowersox is not as analogous as the State would hope.43 As the Court of
Common Pleas explained in its decision below, Bowersox “was analyzing narrower
language and the defendant in Bowersox was subject to additional restrictions

 

39 State v. Taye, 2009 WL 4017638, at *1 (Del. Super. Ct. Nov. 20, 2009), a/f’d on other grounds,
21 A.3d 41 (Del. 2011). The sole issue on direct appeal to the Delaware Supreme Court was
whether the victim that Taye struck “was a firefighter in the performance of her duties, thereby
elevating the offense of manslaughter to first degree murder.” Taye v. State, 21 A.3d 41, 43 (Del.
2011). Regarding Taye’s Driving While Suspended or Revoked conviction, the Supreme Court
stated in a footnote that “[a]t the time of the collision, Taye was not licensed to drive as a
handicapped driver.” Taye, 21 A.3d at 43, n. 1.

40 Taye v. State, 21 A.3d 41, 43 (De1.2011).

41 stare v. Taye, 2009 WL 4017638, at *8, 10.

42 Scott, 2018 WL 1801269, at *6.

43 See Appellant’s Reply Br. at 10. “Finally, the State resurrects two arguments in its Answering
Brief already rejected by the trial court.” Id.

based on his habitual offender status.”44 Secondly, while the defendant-driver in
Taye failed to complete special lessons, which could arguably constitute additional
requirements, the Superior Court did not address the distinction between driving
during a suspension period and driving after the period ended. lt must also be noted
that neither Taye or Bowersox, post-Dehorty cases, addressed the holding in

Dehorty.45

This Court is constrained by the holding in Dehorty and is not now writing on
a clean slate. The applicable language in Dehorty is broad and appears, to this Court,
to compel the reversal of the five convictions below of Driving While Suspended.
Dehorty addressed a very similar issue to the matter before the Court now. Both
Dehorty and Appellant “dr[o]ve at the time of the offense without having taken steps
to reinstate [their] licenses,” but their actual suspension periods had expired.46
Dehorty’s § 2756(a) conviction was vacated. In the instant appeal the State argues
that because there was no evidence that the defendant-driver in Dehorty was required
to fulfill additional requirements before reinstatement, that decision is
distinguishable from Appellant’s appeal. However, the Supreme Court fully adopted
the broad concession by the State in Dehorty Thus, this Court must vacate
Appellant’s five convictions under 21 Del. C. § 2756(a).47 At most, Appellant “could
have been charged with and convicted of’ 21 Del. C. § 2701(b).48

 

44 Scott, 2018 WL 1801269, at *6.

45 ln fact, few cases have cited Dehorty. Those that do discuss issues raised in that case that are
not present in the instant appeal. See Bishop v. Progressive Direct Insurance Co., 2016 WL
7242582, at *2 (Del. Super. Ct. Dec. 15, 2016) (explaining that in Dehorty, “the Delaware Supreme
Court upheld a Reckless Driving conviction when the defendant ran into a turning horse carriage
after attempting to pass it within 100 feet of an intersection, while speeding, at night, on a
shoulderless [sic] country road”); Div. of Farnily Servs. v. JW., 2013 WL 7761082, at *8 (Del.
Fam. Ct. Oct. 30, 2013) (explaining that Dehorty “affirmed the trial court's finding that a victim's
[injuries] were serious physical injuries”); Div. of Famin Servs. v. A.L., 2012 WL 4861426, at
*10, n.51 (Del. Fam. Ct. May 23, 2012) (explaining that Dehorty found “serious physical injury
when victim in reckless driving case suffered broken clavicle, single broken leg bone and had
numerous abrasions”); 1n re Bitar Turou, 2013 WL 5872157, at *3 (Board of lmmigration Appeals
Oct. 2, 2013) (explaining that the Supreme Court in Dehorty “considered the element of
recklessness in Delaware's Assault in the Second Degree offense”).

46 Dehorty, 2002 WL 31946069, at *2, 117.

47 See also State v. Moore, 269 A.2d 242, 243 (Del. Super. Ct. July 23, 1970) (“The essential
elements of [21 Del. C. § 2756(a)] are: (1) That there was a revocation of the license to drive a
motor vehicle; (2) that it Was a legal revocation; and (3) that during the period of such revocation,
the accused operated a motor vehicle on the public highway. . ..”) (emphasis added).

48 Dehorty, 2002 WL 31946069, at *2, 117.

VI. CONCLUSION

F or the foregoing reasons, the decision of the Court of Common Pleas finding
Appellant guilty of the five charges of Driving While Suspended is REVERSED.49

IT IS SO ORDERED.
Richard R. Cooch, R.J.

cc: Prothonotary
Clerk, Court of Common Pleas

 

49 ln his appeal, Appellant’s sole argument was that the Court of Common Pleas committed
reversible error by finding him guilty under 21 Del. C. § 2756(a). Appellant did not address or
raise issue with his remaining convictions or the sentences imposed pursuant to those convictions
Accordingly, Appellant’s remaining convictions of one count of Driving Without a License, two
counts of Failure to Have Required Insurance, and two Counts of Expired Tags stand and remain

unaltered.

10

