Opinion
Cr. A. No. 1502004036
05-09-2016
STATE OF DELAWARE v. CURTIS J. BROWN, Defendant.
Matthew C. Bloom, Esquire Deputy Attorney General Department of Justice 820 N. French Street, 7th Floor Wilmington, DE 19801 Attorney for the State of Delaware Albert M. Greto, Esquire 715 N. Tatnall Street P.O. Box 756 Wilmington, DE 19899 Attorney for Defendant
Matthew C. Bloom, Esquire
Deputy Attorney General
Department of Justice
820 N. French Street, 7th Floor
Wilmington, DE 19801
Attorney for the State of Delaware Albert M. Greto, Esquire
715 N. Tatnall Street
P.O. Box 756
Wilmington, DE 19899
Attorney for Defendant MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO REARGUE
On February 22, 2016, the Court issued a Memorandum Opinion and Order granting the State's Application to Sentence Curtis J. Brown ("Defendant") as a Second Offender (the "February 22nd Order"). On February 26, 2016, Defendant timely noticed the present Motion for Reargument (the "Motion") pursuant to Court of Common Pleas Criminal Rule 57(b) and Court of Common Pleas Civil Rule 59(e). On February 29, 2016, the Court ordered the State to file a written response to the Motion. After reviewing the parties' briefs, the Court determined that Defendant's Motion shall be addressed by a written Opinion. This is the Final Decision and Order on Defendant's Motion for Reargument.
I. Factual and Procedural Posture
On February 7, 2015, Defendant was arrested and subsequently charged with Driving Under the Influence, in violation of 21 Del. C. §4177 (the "Delaware DUI Statute"), and other driving-related offenses. On July 8, 2015, the Court held trial and found Defendant guilty. The Court postponed sentencing so the State could obtain Defendant's Pennsylvania Certified Driving Record.
On October 16, 2015, Defendant contemporaneously filed three motions: (1) a Motion for Extraordinary Relief, in which he argued that sentencing him as a second DUI offender would violate his constitutional rights under the Sixth Amendment; (2) a Motion for Modification of Judgment of Conviction, in which he challenged the sufficiency of the evidence presented at trial; and (3) a Motion for Briefing Schedule Order and Continuance, in which he requested a briefing schedule to allow time for the State to respond to his motions, and for the defense to file replies.
On October 22, 2015, the Court denied Defendant's Motion for Briefing Schedule Order and Continuance because Defendant failed to cite to any applicable statute under Delaware law, case law, or the Criminal Rules as the basis for his Motion.
Although the record at the time may be confusing, the intent of the Court's October 22, 2015 Order was that defendant did not cite a single statute, court opinion or Criminal Rule that granted the Court of Common Pleas jurisdiction to hear a Motion for Extraordinary Relief. This Court is not an equity Court. The Court finds that this Motion was a de facto untimely Motion five (5) days of filing the Courts original opinion and was not only time barred, but cited no authority to envoke the jurisdiction of this Court.
On October 27, 2015, the parties appeared before the Court for Sentencing (the "October 27th Hearing"). At that time, the State provided the Court with copies of Commonwealth v. Curtis Brown, No. 11-416, Ct. Com. Pl. Accelerated Rehabilitative Disposition (ARD) Program, dated April 18, 2012. The Court and the parties discussed whether Defendant's participation in Pennsylvania's ARD Program qualified as a prior conviction or offense under 21 Del C. §4177B(e)(1). The parties stipulated that subparagraphs (a), (b), and (c) were not at issue. The State argued that Defendant's participation in the Pennsylvania ARD Program qualified as a prior offense as provided by subparagraph (d). Defendant argued that his participation in the ARD Program does not qualify as a prior offense under §4177B(e)(1)(d), and further maintained that the two diversionary programs—the Pennsylvania ARD Program and the Delaware DUI First Offender Program ("DUI-FOP")—were not substantially similar.
At the conclusion of the hearing, the Court ordered briefing on this very limited issue which the Court set forth in a written Brief Schedule. The Court also noted that Defendant filed briefing or issues that need not be addressed until the Court engaged in its comparative statutory analysis. Specifically, the Court indicated that it would stay Defendant's other concerns—the Motion for Extraordinary Relief and the Motion for Modification of Judgment of Conviction—until it determined whether Defendant's participation in the Pennsylvania ARD Program constituted a prior offense as provided by 21 Del. C. §4177B(e)(1)(d). Following oral argument, in a letter dated November 3, 2015, the Court ordered briefing on the following limited issue:
The parties stipulated that subparagraphs (a), (b), and (c) of 21 Del. C. §4177B were not at issue in order for the Court to determine Defendant's Second Offender status qualification. The Court therefore outlined the following issue in its briefing schedule: "At issue . . . for which the Court shall now issue a brief schedule is the application of 21 Del. C. §4177B(e)(1)(d) and specifically whether Brown's A.R.D. papers provided to the Court constitute the following application as to a second offense violation [quoting §4177B(e)(1)(d) in its entirety]. Counsel is requested to provide all applicable Delaware case law, rules of statutory construction, and/or Title 21 Superior Court or Common Pleas adjudications which interpret or assist the Court [in] interpreting Brown's A.R.D. papers and whether this matter should be treated as a second offense of 21 Del. C. §4177(a)."
Letter from John K. Welch, Judge, Delaware Court of Common Pleas, to Renee Leverette, Deputy Attorney General, Department of Justice, and William J.P. Mulgrew, III, Defense Counsel, and Alberto M. Greto, Defense Counsel (Nov. 3, 2015) (on file with the Court of Common Pleas).
On November 30, 2015, the State submitted its opening brief, and advanced two arguments: (1) Pennsylvania ARD Program is a diversionary program similar to Delaware's DUI-FOP; and (2) the Pennsylvania ARD Statute and Delaware FOP Statute are similar for purposes of §4177B(e)(1)(d).
Defendant filed his answering brief on December 30, 2015, and argued that the Delaware DUI-FOP Statute and the Pennsylvania ARD Statute are dissimilar. Defendant further developed this contention, and proffered two additional arguments not based on the statutory construction of §4177B(e)(1). First, Defendant argued that he was never placed on notice that his participation in the Pennsylvania ARD Program would or could constitute a predicate "prior offense" in future DUI prosecutions. Second, Defendant argued that the Sixth Amendment of the United States Constitution prevents the State from using his participation in the Pennsylvania ARD Program as a predicate "prior offense" for sentencing purposes.
On January 12, 2016, the State submitted its reply brief, and maintained its position that the Pennsylvania ARD Statute and Delaware FOP Statute are similar statutes. The State also responded to the two additional arguments raised by Defendant. First, the State argued that Defendant's signing of a Waiver of Speedy Trial/Verification of Criminal History, as well as a Delaware County ARD form upon entering the Pennsylvania ARD Program constituted constructive notice that participation in the program could constitute a "prior offense" in future DUI prosecutions. Second, the State argued that sentencing Defendant as a second DUI offender based on his participation in the Pennsylvania ARD Program comports with the Sixth Amendment.
After reviewing the parties' written submissions, the Court issued its February 22nd Order, finding that both 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. The Court declined to address the additional factual and legal issues presented by Defendant in his brief because these issues were outside of the Court's clear instruction set forth in its briefing schedule. Ultimately, the Court granted the State's application to sentence Defendant as a second DUI offender pursuant to 21 Del. C. §4177B(e)(1)(d).
On February 26, 2016, Defendant filed the instant Motion, and requested that the Court address the notice and constitutional issues he previously raised. On March 21, 2016, the State filed its response.
When filing the present Motion, Defendant contemporaneously filed a Motion to Preclude the State from using Defendant's participation in the Pennsylvania ARD Program as a prior offense.
II. Parties' Contentions
In his Motion, Defendant argues that he raised additional constitutional issues beyond those concerning the comparative statutory analysis that the Court should address prior to sentencing. First, Defendant argued that he was never placed on notice that his participation in the Pennsylvania ARD Program could constitute a "prior offense" in future DUI prosecutions. Second, Defendant argued that the Sixth Amendment of the United States Constitution prevents the State from using his participation in the Pennsylvania ARD Program as a predicate "prior offense" for sentencing purposes. He further maintains that the Court "recognized and noted" these additional issues during the October 27th Hearing, which is why he expounded upon these issues in his briefing following the October 27th Hearing. Ultimately, Defendant requests Reargument so that the Court can address these constitutional concerns prior to sentencing.
Def.'s Mot. ¶ 4.
The State contends that Defendant's Motion should be denied because Defendant has failed to satisfy the standard for a Motion for Reargument under Court of Common Pleas Civil Rule 59(e). The State asserts that the Defendant attempted to unilaterally expand the range of issues before the Court in its briefing following the October 27th Hearing, and now presents those same issues in the instant Motion. The State also contends that Defendant's argument on lack of notice is wholly without merit, and claims that Defendant has failed to demonstrate that the authorities he cites in support of his constitutional claim are controlling. Therefore, the State argues that Defendant has failed to meet his burden in demonstrating that the Court overlooked the additional issues he raised or that there is controlling precedent or legal principles that would change the Court's decision.
III. Legal Standard
The Court of Common Pleas Criminal Rules do not specifically authorize Motions for Reargument. Nevertheless, Court of Common Pleas Criminal Rule 57(b) grants the Court authority to "proceed in any lawful manner not inconsistent with these Rules or with any applicable statute" when the criminal rules are silent as to the proper procedure the Court should utilize. Therefore, when considering a Motion for Reargument in a criminal matter, the Court looks to Court of Common Pleas Civil Rule 59(e), which governs Motions for Reargument in civil matters.
See State v. Dumas, 2016 WL 702003, at *2 (Del. Com. Pl. Feb. 22, 2016); State v. Slaney, 2016 WL 281464, at *2 (Del. Com. Pl. Jan. 20, 2016); Parisan v. Cohan, 2012 WL 1066506, at *1 (Del. Com. Pl. Mar. 29, 2012); see also State v. Munzer, 2009 WL 206088, at *1 (Del. Com. Pl. Jan. 9, 2009).
Pursuant to Court of Common Pleas Civil Rule 59(e), parties may request the Court to reconsider a previous finding of fact, conclusion of law, or judgment. When filing a Motion for Reargument, parties cannot restate arguments that were previously presented to the Court. Conversely, parties are also not permitted to present new arguments not raised in the original proceeding. Unless the moving party demonstrates that the Court either overlooked a controlling precedent or legal principle, or misapprehended the law or facts in a manner that would change the outcome of its decision had it been correctly or fully informed, the Court will not grant a Motion for Reargument. Furthermore, in seeking Reargument, a party must demonstrate that there is newly discovered evidence or a change in the law, or otherwise prove that it has somehow experienced a manifest injustice. The Court will generally deny a Motion for Reargument absent a showing of abuse of discretion.
Slaney, 2016 WL 281464, at *2; State v. Boyer, 2007 WL 1651936, at *1 (Del. Com. Pl. June 8, 2007); Parisan, 2012 WL 1066506, at *1 (quoting Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969)).
Tektree, LLC v. Borla Performance Indus., Inc., 2013 WL 5508761, at *1 (Del. Com. Pl. Oct. 2, 2013) (citing Strong v. Wells Fargo Bank, 2013 WL 1228028, at *1 (Del. Super. Jan. 3, 2013)).
Umphenour v. O'Connor, 2011 WL 2671916, at *1 (Del. Com. Pl. July 1, 2011).
Parisan, 2012 WL 1066506, at *1 (citing Beatty v. Smedley, 2003 WL 23353497 (Del. Super. Mar. 12, 2003)).
Id.
Sweetman v. State Farm Mut. Auto. Ins. Co., 2016 WL 526518, at *1 (Del. Com. Pl. Feb. 9, 2016) (citing Parisan, 2012 WL 1066506, at *1).
IV. Discussion
A. Defendant's Motion for Reargument
The Court has carefully reviewed this matter and Defendant's Motion, and finds that the Court neither overlooked a controlling precedent or legal principle, nor misapprehended the law or facts in a manner that would change the outcome of its February 22, 2016 Order. The sole issue before the Court concerned the "...application of 21 Del. C. §4177B(e)(1)(d) and specifically whether Brown's A.R.D. papers provided to the Court constitute the following application as to a second offense violation."
Supra n. 1.
The fair notice issue and the Sixth Amendment issue raised by Defendant in the present Motion were raised within Defendant's Motion for Extraordinary Relief, and the Court, at the October 27th hearing, explicitly indicated that it would address these issues after addressing the threshold issue concerning the State's application to sentence Defendant as a second offender. These issues have not been and are not currently before the Court. Therefore, Defendant's Motion is improper, and accordingly, is DENIED. Nonetheless, since both parties have provided the Court with argument on these issues in the interest of justice, the Court will address them at this time.
B. Defendant's Notice Argument
In his Answering Brief following the October 27th hearing, Defendant argues that he cannot be sentenced as a second DUI offender because he was never placed on notice that his participation in the Pennsylvania ARD Program could constitute a "prior offense" in future DUI prosecutions. Defendant claims that because he did not receive a "...basic colloquy that would have suggested to him that successful completion of the Pennsylvania ARD Program might constitute a predicate 'prior offense' in Pennsylvania or elsewhere."
Def.'s Answering Br. 8-9.
In response, the State argues that Defendant's notice argument is wholly without merit because Pennsylvania courts have found that neither the Pennsylvania ARD Statute nor the relevant Pennsylvania Rules of Criminal Procedure require that a defendant participating in the ARD Program by notified that participation in the program may constitute a prior conviction for sentencing purposes. Moreover, the U.S. District Court found that, although "...it would be desirable to include a notification of the future potential sentencing effects of participation in ARD . . . , the failure to require or provide notice of such a collateral consequence of a decision to avert prosecution by electing ARD renders [the Pennsylvania ARD Statute] unconstitutional on its face or as applied."
See State's Reply Br. 7 (citing Commonwealth v. Reeb, 593 A.2d 853, 855 (Pa. Super. Ct. 1991). While Defendant seems to take issue with the fact that the Delaware County ARD form differs from the Chester County ARD form because while the Delaware County form does not explicitly put a defendant on notice of the potential sentencing consequences for participating in the ARD Program, the Chester County form includes a paragraph outlining the potential consequences. However, since Pennsylvania law is clear that a defendant is not required to be notified of these consequences, Defendant's complaint that the forms are dissimilar is of no merit for purposes of this Court's analysis.
Scheinert v. Henderson, 800 F. Supp. 263, 267 (E.D. Pa. 1992).
Similarly, the Delaware FOP Statute also does not require a defendant to be notified of potential sentencing consequences when electing to participate in the Delaware FOP Program: "[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 triggered by the first conviction." Therefore, in considering both Pennsylvania law and Delaware law on Defendant's first issue concerning notice, the Court does not find Defendant's argument persuasive. Accordingly, Defendant's request to not be sentenced as a second DUI offender under this basis is DENIED.
State v. Pressly, 2002 WL 664003 at *1 (Del. Super. 2002) (citing State v. Carr, 641 A.2d 833, 834 (Del. 1994)).
C. Defendant's Motion for Extraordinary Relief
In his Motion for Extraordinary Relief, which the Court stayed pending briefing following the October 27th Hearing, Defendant claims that the Sixth Amendment prevents the State from using his participation in the Pennsylvania ARD Program as a predicate "prior offense" for sentencing purposes because it did not submit evidence of his participation in the program during trial. Defendant supports his argument by citing to, inter alia, Alleyne v. United States, and Apprendi v. New Jersey. In Apprendi, the United States Supreme Court held that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." In Alleyne, the Court applied the Apprendi rationale to mandatory minimum penalties, and followed the exception created for prior convictions. Thus, contrary to Defendant's assertions, neither Apprendi nor Alleyne support his argument.
133 S. Ct. 2151 (2013).
530 U.S. 466 (2000).
Id. at 476 (quoting Jones v. United States, 526 U.S. 227, 243, n. 6 (1999)).
Alleyne, 133 S. Ct. 2151 (2013).
Moreover, the Delaware Supreme Court has explicitly rejected Defendant's argument in Talley v. State and State v. Laboy. In Talley, the Court declined to apply Apprendi because "the increase in [the defendant's] sentence was occasioned solely by his prior convictions." Similarly, in Laboy, the Court declined to apply Alleyne because the defendant was "subject to enhanced penalties solely because of his two previous DUI convictions." The Court held that in order for the defendant to be sentenced as a repeat offender, the State "...[o]nly needed to establish that he had twice been convicted, pled guilty, or participated in a DUI course or rehabilitation under §4177 of 'a similar statute of any state,'" and found that certified court records were sufficient to meet that burden. Thus, Defendant's argument fails under Delaware law.
2003 WL 23104202, at *2 (Del. 2003)
117 A.3d 562 (Del. 2015).
Talley v. State, 2003 WL 23104202, at *2 (Del. 2003).
Laboy, 117 A.3d at 567.
Id. (citing 21 Del. C. §4177(e)(1)).
D. Defendant's Motion for Modification of Judgment of Conviction
In his Motion for Modification of Judgment of Conviction, which the Court stayed pending briefing following the October 27th Hearing, Defendant argues that the evidence presented to the Court was insufficient to find him guilty of DUI beyond a reasonable doubt. The Court found Defendant guilty of DUI on July 8, 2015. Defendant filed this Motion for Modification on October 16, 2016. The Court notes that this motion is a guise or substitute for filing a Motion for Reargument, which was never filed. However, for the inherent reason that Defendant cites no applicable rule, case law or other authority that would invoke the jurisdiction of the Court so that it may consider this request, Defendant's Motion for Modification of Judgment of Conviction is DENIED.
Had Defendant properly and timely filed a Motion for Reargument, the Court would have entertained such a motion on its merits. --------
V. Order
For the foregoing reasons, Defendant's Motion for Reargument is DENIED, Defendant's Motion for Reconsideration is DENIED, and for Modification of Judgment of Conviction is DENIED. The Court hereby sets this matter for sentencing at the earliest convenience of the Court and counsel. No further motions or pleadings shall be heard by the Court in this proceeding.
IT IS SO ORDERED this 9th day of May, 2016.
/s/_________
John K. Welch, Judge /jb Cc: Ms. Diane Healy, CCP Judicial Case Manager