State v. Xenidis

¶1I. INTRODUCTION

¶2Theodore 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 21^st and the other on February 8^th (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.

¶3Xenidis 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 *295use of evidence of such a prior out-of-state conviction to enhance the classification of and penalty for a later Delaware conviction.

¶4II. DELAWARE's RECIDIVIST DUI PROVISIONS

¶5Twenty-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

¶6These 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

¶7The 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

¶8III. FACTUAL AND PROCEDURAL BACKGROUND

¶9The 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 *2961991 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.

¶10A. XENIDIS'S 1991 MARYLAND DUI CONVICTION

¶11It 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

¶12Xenidis'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."

¶13B. XENIDIS'S 2018 CONVICTIONS AND SENTENCING CHALLENGES

¶14Xenidis'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 *297problem 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.

¶151. Xenidis's Initial Challenge Under the United States Constitution

¶16As 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

¶17Perhaps most significant to Xenidis's claim is the Supreme Court's decision in Nichols v. United States .16Nichols 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 *298offense.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

¶18Xenidis'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

¶192. Xenidis's Revised Challenge Under the Delaware Constitution

¶20After 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.

¶21Xenidis 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.

¶22IV. THE COURT'S ROLE, DUTY, AND CONSTRAINT WHEN CONSIDERING DECLARATION OF AN INDEPENDENT OR BROADER STATE CONSTITUTIONAL RIGHT

¶23The 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 *299provisions 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

¶24When 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.

¶25First, 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

¶26In 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 *300reluctant, 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

¶27When 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

¶28V. ANALYSIS OF THE ACTUAL STATE CONSTITUTIONAL QUESTION TO BE RESOLVED

¶29Xenidis 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.

¶30Article 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, *301the 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?

¶31And 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.

¶32A. TEXTUAL LANGUAGE

¶33As 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.

¶34The 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.

¶35*302Article 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

¶36B. LEGISLATIVE HISTORY

¶37Traditionally, 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

¶38The due process provision of Article I, § 7 first appeared in the Delaware Constitution of 1792 in much the same form as it *303exists today.52 It and its federal due process counterparts share much the same lineage and, as mentioned above, "substantially the same meaning."53

¶39While 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.

¶40C. RE-EXISTING STATE LAW, STRUCTURAL DIFFERENCES, PARTICULAR STATE OR LOCAL INTEREST, DISTINCTIVE PUBLIC ATTITUDES

¶41As 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.

¶42The 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 "[d]ifferences 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

¶43*304In 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 prior conviction as an offense or sentencing aggravator.

¶44D. STATE TRADITIONS

¶45A state's history and traditions on a given subject may also provide a basis for the independent application of its constitution.60 Here, Delaware's history and traditions on the use of prior convictions as aggravators can be established by examining relevant statutory enactments, court rules, and case law.

¶461. Delaware's Court Rules and Procedures Align With the Federal Sixth Amendment Right to Counsel.

¶47There is no question that Delaware has a long history of permitting the unfettered employment of an attorney by a criminal defendant who engages one.61 And Delaware criminal rules are relatively uniform in providing for the appointment of counsel to an indigent defendant who requests assistance and requiring an express waivers of counsel from anyone who wishes to forego representation in criminal court.62 While the one relevant Delaware statute requires appointment of counsel only "to any person on trial for murder, manslaughter or any offense punishable by death, or the offense of being an accomplice or accessory to any such crime, if such person is unable to obtain counsel."63 The Office of Defense Services represents "each indigent person who is under arrest or charged with a crime" upon request or appointment.64 In practice, this means that publically-funded counsel is provided to indigents charged with a crime for which incarceration may be imposed.65 So, in short, Delaware's history, traditions, and actual practice regarding the right to counsel implicated here are wholly in line with Sixth Amendment jurisprudence.66

¶482. Delaware's Approach to this Particular Issue and to Collateral Attacks on Priors Used as Enhancers

¶49Delaware's DUI statute provides that "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 *305court in which the conviction arose ...."67 Xenidis says that he neither disputes the fact of his Maryland conviction nor is he "collaterally attacking his Maryland DUI conviction."68 But the latter is precisely what he is doing.

¶50By now seeking to question the validity of his previous Maryland DUI conviction in this separate recidivism proceeding, Xenidis, "by definition collaterally attack[s] his previous conviction[ ]; he s[eeks] to deprive [it] of [its] normal force and effect in a proceeding that ha[s] an independent purpose other than to overturn the prior judgment[ ."69 He has done so without showing that conviction suffers the "unique constitutional defect" that might allow such a challenge.70 And when doing so he has attempted to shift the burden the Delaware DUI statute and the courts have said rightly belongs to him.71

¶51In Morris v. State , the Delaware Supreme Court recognized the rule established under Nichols .72 In Morris , the defendant was found guilty in this Court of DUI and received an enhanced sentence as a fourth-offender.73 Morris argued on appeal that this Court erred as a matter of law by using two of his prior misdemeanor DUI convictions to enhance his sentence because he did not have assistance of counsel in those earlier proceedings.74 The Supreme Court found the sentencing judge correctly applied the rationale in Nichols when finding Morris's sentence was subject to enhancement under § 4177(d)(4).75 In affirming this Court's judgment, the Supreme Court held that since only actual imprisonment triggered a Sixth Amendment concern under Nichols , an uncounseled misdemeanor conviction may be used under recidivist statutes to enhance punishment for a future conviction.76

¶52That same year, in State v. Pressley , another DUI recidivist moved this Court to consider his recent DUI conviction as a second offense rather than a fourth.77 Pressley argued that two of his prior DUI convictions could not be used for enhanced penalty consideration because the State could not show that he knowingly and intelligently waived his constitutional right to be represented by counsel.78 Citing Nichols , the Court recognized that "regardless of whether or not defendant was represented by (or waived) counsel in his prior misdemeanor proceedings, any conviction may still be used to enhance the *306sentence on a subsequent offense."79 Further, in accordance with Scott , the Court explained such convictions may be used to enhance a later sentence because the State is under no obligation to appoint counsel for a defendant in a misdemeanor proceeding where he was not sentenced to actual imprisonment. The Court also noted that Delaware's DUI statute "is very specific in requiring the defendant to first successfully challenge the prior convictions in the Court where the convictions arose."80 In denying Pressley's motion, the Court held that it was "constrained" by the requirements of the DUI statute that set forth the procedures for such challenges.

¶53Lastly, in State v. Dean , the Court-relying on the United States Supreme Court's decision in Parke v. Raley81 -held that Dean's prior DUI conviction is presumed valid absent actual evidence to indicate otherwise.82

¶54In sum, the Delaware history and tradition has been that when a collateral attack on a final conviction rests on constitutional grounds, the conviction is nonetheless presumed valid due to the "presumption of regularity" that attaches to final judgments.83

¶553. There is No Justification for Reading the "Presumption of Regularity" out of the Delaware Due Process Clause

¶56In Parke , Ricky Harold Raley moved a Kentucky sentencing court to suppress two of his prior convictions that were the result of guilty pleas. He said the prior convictions were invalid because the records offered contained no transcripts of those prior pleas and, therefore, did not affirmatively show that the pleas were knowing and voluntary.84 The United States Supreme Court ultimately held that it was permissible for the Kentucky state court to presume that a final judgment of conviction offered for sentence enhancement was validly obtained85

¶57The Parke Court observed that statutes punishing repeat offenders more severely have a long tradition dating back to colonial times and continue to exist in all 50 states.86 States, the Court reasoned, have a valid interest in deterring habitual offenders.87 And due process does not require state courts to permit challenges to prior convictions used for enhancement purposes.88

¶58The presumption of regularity that attaches to all final judgments implies *307that every act of a court of competent jurisdiction is presumed to have been rightly done, until evidence of the contrary appears.89 The Parke Court remarked: "[t]he circumstances of a missing or nonexistent record is, we suspect, not atypical, particularly when the prior conviction is several years old."90 But, the Court held, it would defy logic to presume that Raley was not advised of his by-then well-established rights from the unavailability of a years-old transcript of a never before challenged guilty plea.91

¶59Here, Xenidis challenges the inclusion of his almost three-decade-old Maryland DUI conviction because the only available out-of-state record is completely silent on whether he had counsel, waived counsel, or the participation of counsel was ever even addressed. But his circumstance is emblematic of why there is no good reason to suspend the presumption of regularity through mere incantation of Article I, Section 7.

¶60Maryland courts had, long before Xenidis's prosecution there, recognized both the federal and an independent state constitutional "guarantee [of] a right to counsel, including appointed counsel for an indigent, in a criminal case involving incarceration."92 In turn, Maryland trial judges knew well by the time Xenidis appeared there that when one faced prosecution in their courts, they were to: advise the defendant of his rights if he appeared without counsel; conduct a waiver inquiry if he sought to proceed further without counsel; and, make a determination upon proper considerations whether the defendant was eligible to be appointed counsel.93

¶61To exclude this offense the Court would have to presume some constitutional invalidity of the Maryland DUI Conviction. Due process-as defined by both the Federal and Delaware Constitutions-requires no such presumption and no such exclusion under Delaware's DUI recidivist statute.

¶62VI. CONCLUSION

¶63This Court will not accept Xenidis's invitation to engage in an unnecessary exercise of constructing and pronouncing some broad right to counsel under Article I, Section 7. The specific question of whether the State must-in order to use his prior Maryland DUI misdemeanor conviction to enhance the severity of Xenidis's current DUI-prove that in that earlier proceeding Xenidis was represented by counsel or knowingly and voluntarily waived counsel is resolved by application of the Delaware Constitution's due process guarantees. And in this specific context, federal and state constitutional law are in accord. The State need not. Xenidis's motion to exclude use of his prior Maryland DUI conviction is DENIED. He is properly sentenced as a *308fourth offender under 21 Del. C. § 4177(d)(4).

¶64IT IS SO ORDERED.