Opinion
No. 168, 2002
Submitted: July 11, 2002
Decided: September 3, 2002
Court Below: Superior Court of the State of Delaware in and for New Castle County Cr. ID# 0106006720.
Affirmed.
Unpublished opinion is below.
HARRY LYONS, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 168, 2002 In the Supreme Court of the State of Delaware. Submitted: July 11, 2002 Decided: September 3, 2002
Before WALSH, BERGER and STEELE, Justices.
MYRON T. STEELE, Justice.
ORDER
This 3rd day of September 2002, upon consideration of the briefs of the parties, it appears to the Court that:
(1) On June 2, 2001, Wilmington police arrested Appellant Harry Lyons for Driving Under the Influence. The State timely notified Lyons that it would seek "fourth-offender" status for purposes of enhanced sentencing under Del. C. Ann. tit. 21 Del. C. § 4177(d)(4). In November 2001, the Superior Court denied Lyons' "Motion to Declare Fourth Offender Designation Inapplicable." Lyons was convicted of Driving Under the Influence in March 2002 and sentenced as a fourth-offender. This is Lyons' direct appeal.
(2) In 1986, Appellant Lyons entered into a First Offender's Program in a Family Court proceeding after being charged with Driving Under the Influence as a juvenile. Lyons was arrested and charged with Driving Under the Influence for a second time in 1994 and again opted to enter into a First Offender's Program, this time as an adult through the Justice of the Peace Court. In 1999, he was convicted of Vehicular Assault in the Second Degree as a result of negligent operation of a vehicle while under the influence of alcohol. A conviction for a vehicular assault where use of alcohol is an element of the offense constitutes a "prior or previous offense" for purposes of an enhanced penalty under Del. C. Ann. tit. 21 Del. C. § 4177(d). Based on these earlier offenses, the Superior Court determined that the State had established the required elements for fourth offender status and denied Lyons' motion. The sole issue before this Court on appeal is whether or not the Superior Court properly considered the DUI violation adjudicated in the Family Court while he was a minor to be a predicate offense for purposes of establishing Lyons' status as a fourth offender.
Del. C. Ann. tit. 11 Del. C. § 628(2) (2001).
Del. C. Ann. tit. 21 Del. C. § 4177B(e)(1)(b) (2000 Supp.).
(3) Under Delaware's Motor Vehicle Code, a defendant convicted of driving under the influence for a fourth offense is guilty of a class E felony. A "prior or previous conviction or offense," as used in Section 4177, is defined not only as a conviction pursuant to Section 4177 or certain other criminal statutes, but also includes participation in a First Offenders Program of rehabilitation under Section 4177B. This language includes any First Offender election, including that made by a juvenile in Family Court. The mere fact that the disposition of a juvenile charge in Family Court is a finding of delinquency and not a "criminal conviction" does not except it from the plain language of the statute. Indeed, the definition of "offense" includes any "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. . . ." A disposition in the Family Court commonly known as an adjudication of delinquency clearly falls within this definition. Thus, the Superior Court properly considered Lyons' 1988 election to enter a First Offender's Program through the Family Court to be the result of a previous "offense" for the purpose of a fourth offender and sentencing him accordingly.
Del. C. Ann. tit. 21 Del. C. § 4177(d)(4) (1995).
Del. C. Ann. tit. 21 Del. C. § 4177B(e)(1)(d) (2000 Supp.).
Id.
NOW, THEREFORE, IT IS ORDERED that the decision of the Superior Court be, and hereby is, AFFIRMED.