IN THE SUPREME COURT OF THE STATE OF DELAWARE
HAROLD DANIELS, § § No. 531, 2019 Defendant Below, § Appellant, § Court Below: Superior Court of § the State of Delaware v. § § ID No. 1812013402(N) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §
Submitted: November 18, 2020 Decided: January 26, 2021
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Benjamin S. Gifford IV, Esq., THE LAW OFFICE OF BENJAMIN S. GIFFORD IV, Wilmington, Delaware, for Appellant, Harold Daniels.
Carolyn S. Hake, Esq., DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, for Appellee, the State of Delaware. TRAYNOR, Justice:
After Harold Daniels pleaded guilty to driving under the influence of alcohol,
the Superior Court sentenced him to a mandatory term of imprisonment as a third-
time offender under 21 Del. C. § 4177(d)(3). The court based its finding that Daniels
had committed two prior offenses in part on its determination that Daniels had been
convicted in New Jersey in 2012 under a statute that was “similar” to Delaware’s
driving-under-the-influence statute. In this appeal, Daniels argues that, because the
New Jersey statute under which he was convicted prohibits conduct that is not
against the law in Delaware—permitting another person to operate a vehicle while
under the influence—the Superior Court erred by counting the New Jersey
conviction against him. For the reasons that follow, we agree with Daniels and
therefore vacate his sentence.
I.
The facts surrounding Daniels’ arrest in December 2018 for driving under the
influence of alcohol are not germane to this appeal. It suffices to understand that
Daniels pleaded guilty to that charge, after which the State moved the Superior Court
to sentence him as a third-time offender. Under Section 4177(d)(3), a third offense
DUI is a Class G felony punishable by up to two years in prison, three months of
which may not be suspended, and a fine of up to $5,000. By contrast, first offenders
are subject to a fine of not less than $500 nor more than $1,500 and a prison sentence,
2 which may be suspended, of up to 12 months.1 Section 4177B defines “prior or
previous conviction” as “[a] conviction or other adjudication of guilt . . . under §
4175(b) or § 4177 . . . or a similar statute of any state or local jurisdiction . . . .”2
In support of its motion, the State submitted certified copies of two
convictions: (1) a 2000 conviction in Delaware for reckless driving (alcohol
related), in violation of 21 Del. C. § 4175(b), and (2) a 2012 conviction in New
Jersey under N.J. Stat. Ann. § 39:4-50 (“N.J. § 39:4-50”), a statute that is entitled
“Driving while intoxicated.” Daniels responded that the court should not consider
the New Jersey conviction because the New Jersey statute he was found to have
violated in 2012 is “significantly broader in scope than Section[] . . . 4177,”3
punishing conduct—permitting another person to drive under the influence—“that
is not criminalized in Delaware.”4 According to Daniels, for his conviction under
1 We do not recite the penalties applicable to second offenses because it would appear that Daniels’ conviction should be treated either as a first offense or a third offense. If Daniels’ 2012 New Jersey conviction is counted as a prior conviction, then the offense for which the Superior Court sentenced him here is a third offense. If it is not, although the offense here would be Daniels’ third offense during his lifetime and second offense in Delaware, it would be a first offense for sentencing under Section 4177 because his actual first offense occurred more than 10 years before the instant offense. See 21 Del. C. § 4177(d)(2) (“For a second offense occurring at any time within 10 years of a prior offense, [the offender shall] be fined not less than $750 nor more than $2,500 and imprisoned not less than 60 days nor more than 18 months.” (emphasis added)). 2 21 Del. C. § 4177B(e)(1)(a). This section counts convictions under Section 4175(b) (reckless driving-alcohol related) and Section 4177 (driving while under the influence) as prior convictions. Because the State does not contend that Daniels’ New Jersey conviction was under a statute similar to Section 4175(b), henceforth we will confine our analysis to whether the New Jersey statute is “similar” to Section 4177. 3 App. to Opening Br. at A48. 4 Id. 3 the New Jersey statute to qualify as a prior offense under a statute “similar” to
Section 4177, the State was required to provide enough information that would
enable the Superior Court to determine that he had been convicted of driving—and
not permitting another to drive—under the influence; the State readily conceded that
it was unable to do so.5
The Superior Court was unpersuaded by Daniel’s argument for two reasons.
First, the court selected a dictionary definition of “similar,” to-wit: “nearly
corresponding; resembling in many respects; having a general likeness, although
allowing for some degree of difference,”6 and found that N.J. § 39:4-50 fit the bill.
Second, the court found that the purported difference in the New Jersey statute was
“truly illusory” because, “it would seem Delaware’s DUI and accomplice liability
statutes would operate in the same manner as New Jersey’s express provision”7 that
punishes persons who permit others to drive under the influence. Thus, the Superior
Court granted the State’s motion and sentenced Daniels as a third-time offender to
5 During supplemental briefing below and on appeal, the State has argued that, even though it was unable to produce Shepard documents to prove the part of the New Jersey DUI statute under which Daniels was convicted, Daniels could still be sentenced as a third-time offender because Daniels’ participation in a rehabilitation program following his 2012 New Jersey conviction constituted a prior conviction under Section 4177B(e)(1)(c). Because we determine that the New Jersey and Delaware statutes are not similar, Daniels’ participation in a rehabilitation program cannot constitute a prior offense as Section 4177B(e)(1)(c) requires that such participation must occur under a statute similar to the Delaware DUI statute. 6 State v. Daniels, 2019 WL 6869071, at *3 (Del. Super. Ct. Nov. 13, 2019) as modified (Dec. 16, 2019) (quoting Black’s Law Dictionary 1240 (6th ed. 1990)). 7 Id. at *4. 4 two years of Level V incarceration, to be suspended after Daniels serves three
months for one year of Level IV probation. This appeal followed.
II.
We address questions of statutory interpretation de novo because they include
questions of law.8
III.
A.
We begin our consideration of whether the New Jersey statute is sufficiently
similar to Section 4177 such that a conviction under it qualifies as a prior DUI
offense for sentencing purposes by comparing the text of the two statutes.
Under Section 4177,
(a) No person shall drive a vehicle: (1) When the person is under the influence of alcohol; (2) When the person is under the influence of any drug; (3) When the person is under the influence of a combination of alcohol and any drug; (4) When the person’s alcohol concentration is .08 or more; or (5) When the person’s alcohol concentration is, within 4 hours after the time of driving .08 or more.9
Under the New Jersey statute, a person may be convicted if he or she:
operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-
8 Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1257 (Del. 2011); see also Sammons v. State, 68 A.3d 192, 194 (Del. 2013) (“Whether a crime from another jurisdiction is the equivalent to a particular crime under the Delaware code is a question of law to be reviewed de novo.”). 9 21 Del. C. § 4177(a). 5 producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood or permits another person who is under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug to operate a motor vehicle the person owns or which is in the person's custody or control or permits another to operate a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant's blood . . . .10
One is struck by an obvious—and important—difference between these two
statutes. While they both prohibit driving a vehicle while under the influence, N.J.
§ 39:4-50 has a broader reach than Section 4177. In particular, the New Jersey
statute imposes penalties on persons who “permit[] another person who is under the
influence of intoxicating liquor . . . [or drugs] to operate a motor vehicle the person
owns or which is in the person’s custody or control;”11 the Delaware statute has no
corresponding provision. In the Superior Court, Daniels seized upon this difference,
a line of United States Supreme Court cases construing the Armed Career Criminal
Act (the “ACCA”), and our recent order in Valentine v. State,12 and argued that, to
invoke his 2012 conviction under N.J. § 39:4-50 for the purpose of enhancing his
sentence, the State was required to demonstrate that he had been convicted under the
part of the statute that was similar to Section 4177, and not under the part that was
different.
10 N.J. STAT. ANN. § 39:4-50(a) (emphasis added). 11 Id. 12 207 A.2d 166, 2019 WL 1178765 (Del. 2019) (TABLE). 6 B.
As background for our discussion of Daniels’ argument—and the Superior
Court’s rejection of it—we interpose here a brief discussion of Valentine and its
federal antecedents. In Valentine, we were tasked with determining whether the
defendant could be sentenced as a repeat offender under Delaware’s possession-of-
a-firearm-by-a-prohibited-person (“PFBPP”) statute13 based on two prior felony
convictions under two Pennsylvania statutes. We determined that neither
Pennsylvania conviction resulted under a statute that was “‘the same as or equivalent
to’ a Delaware violent felony statute,”14 a prerequisite for enhanced sentencing under
the PFBPP statute. In reaching that conclusion, we looked to United States Supreme
Court precedent that analyzed whether a prior conviction in a foreign jurisdiction
qualifies as a prior offense for the purpose of enhancing a defendant’s sentence under
the ACCA.15
The ACCA imposes a mandatory minimum sentence of 15 years for offenders
who have three prior convictions “for a violent felony or a serious drug offense.”16
The ACCA defines a “violent felony” as using or threatening the use of physical
force against another person but it also includes “burglary, arson, or extortion.”17
13 See 11 Del. C. § 1448(e)(1)(c). 14 Valentine, 2019 WL 1178765, at *1. 15 The ACCA is the federal analog of Delaware’s PFBPP statute. 16 18 U.S.C. § 924(e) (2018). 17 Id. 7 Where the prior conviction is “burglary, arson, or extortion,” the United States
Supreme Court has instructed that the sentencing court should refer to the definition
of the “‘generic’ crime—i.e., the offense as commonly understood”18 to determine
whether the prior conviction may be counted for the purposes of enhancing the
defendant’s sentence.
In Mathis v. United States,19 the Supreme Court clarified the two approaches
a sentencing court may use to compare a foreign statute with the “generic” crimes
listed in the ACCA. The first approach, the “categorical approach,” is to be used
“when a statute sets out a single (or ‘indivisible’) set of elements to define a single
crime,” excluding any consideration of the facts of the case.20 Under this approach,
if the elements of the statute under which the defendant was convicted match one of
the generic offenses listed (i.e., burglary, arson, or extortion), then the prior
conviction may serve as an ACCA predicate for the imposition of an enhanced
sentence. On the other hand, the “modified categorical approach” is to be used when
the statute has “a more complicated (sometimes called ‘divisible’) structure . . .
list[ing] elements in the alternative, and thereby defin[ing] multiple crimes.”21
Under the “modified categorical approach,” a sentencing court may look to Shepard
18 Descamps v. United States, 570 U.S. 254, 257 (2013). 19 Mathis v. United States, 136 S. Ct. 2243 (2016). 20 Id. at 2248–49. 21 Id. at 2248. 8 documents, which are “a limited class of documents (for example, the indictment,
jury instructions, or plea agreement and colloquy) to determine what crime, with
what elements, a defendant was convicted of.”22
Following this guidance, we employed the “modified categorical approach”
in Valentine and determined that one of the defendant’s Pennsylvania convictions
resulted under a statute that, in addition to criminalizing behavior also prohibited in
Delaware—specifically, carrying a concealed weapon without a license—the
Pennsylvania statute also criminalized behavior not prohibited in Delaware—
specifically, possessing a firearm in a vehicle if that firearm is not concealed.
Because the Shepard documents presented at sentencing did not indicate the part of
the Pennsylvania statute under which the defendant was convicted, we reversed the
defendant’s enhanced sentencing under the PFBPP statute.
Despite the fact that N.J. § 39:4-50 appears to include alternative offense
elements—operating a vehicle, on the one hand, and permitting another to do so, on
the other—and that the record of Daniels’ conviction does not disclose under which
one he was convicted, the Superior Court eschewed the “modified categorical
approach.” The court reasoned that, because PFBPP sentences are enhanced only if
the defendant has a prior conviction for an offense that is “the same as or equivalent
22 Id. at 2249 (citing Shepard v. United States, 544 U.S. 13, 26 (2005); Taylor v. United States, 495 U.S. 575, 602 (1990)). 9 to”23 a Delaware violent felony and because Section 4177B(e)(1)’s enhancement
provisions only require convictions under statutes “similar” to Section 4177, the
court need not determine which alternative offense underlay the prior conviction.
For the Superior Court, if the statute under which Daniels was convicted in New
Jersey bore “a general likeness” to Delaware’s DUI statutes “with ‘some degree of
difference allowed,’”24 the question of whether Daniels was convicted of the
alternative offense that is not an offense under Section 4177 need not be answered.
C.
We disagree with the Superior Court’s interpretation of Section 4177B(e)(1)’s
definition of “[p]rior or previous conviction or offense.” Although the court quite
rightly sought to derive the commonly accepted meaning of “similar” by consulting
frequently cited dictionaries, it did not, in our view, take sufficient heed of the
context in which the elusive word is used. To be sure, dictionary definitions are
helpful. But “dictionaries may also reveal a linguistic pluralism . . . [that is], a word
[can have] a broad range of possible meanings.”25 And this is true of “similar,” as
noted by the very edition of Black’s Law Dictionary upon which the Superior Court
relied for its definition. “‘[S]imilar,’” Black’s warns, “may mean identical or exactly
23 11 Del. C. § 1448(e)(3). 24 Daniels, 2019 WL 6869071, at *4. 25 William N. Eskridge Jr., Interpreting Law A Primer on How to Read Statutes and the Constitution 59 (2016). 10 alike. It is a word with different meanings depending on [the] context in which it is
used.”26 In this instance, we believe that the context that gives meaning to the word
“similar” weighs in favor of defining it as “alike in substance or essentials.”27
In reaching this conclusion, we look to the purpose underlying Delaware’s
driving-under-the-influence statutory scheme as “an essential element of context that
gives meaning to its words.”28 The evident purpose of what the driving-under-the-
influence statutes seek to achieve is the prohibition and punishment of those who
drive—defined as “driving, operating, or having actual physical control of a
vehicle”29—while under the influence of alcohol or drugs. Section 4177 does not by
its terms prohibit permitting another to drive under the influence and, to the extent a
statute, such as New Jersey statute in question here, criminalizes that conduct, (and,
to be clear, only to that extent), it is not similar to Section 4177.
This is not to say that a prior conviction under N.J. § 39:4-50 can never qualify
as a “prior or previous conviction” under Section 4177B. Indeed, its prohibition of
“operat[ing] a motor vehicle while under the influence of intoxicating liquor [or
drugs]” addresses similar conduct as does Section 4177, which states that “[n]o
person shall drive a vehicle . . . when the person is under the influence of alcohol . .
26 Black’s Law Dictionary 1383 (6th ed. 1990); see also Black’s Law Dictionary 1240 (5th ed. 1979). 27 Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/similar (last visited Jan. 21, 2021). 28 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 20 (2012). 29 11 Del. C. § 4177(c)(5). 11 . any drug . . . any combination of alcohol and any drug.”30 Moreover, statutes from
other jurisdictions that might describe the offense of driving under the influence
differently or establish different evidentiary standards applicable to the offense
might still qualify as similar so long as the offense of conviction is similar to driving
under the influence as defined in Section 4177.31 But where, as here, the prior
conviction is under a statute that is divisible into conduct that violates Section 4177
and conduct that doesn’t, the sentencing court must determine, with the benefit of
Shepard documents, if necessary, whether the prior conviction was under the section
of the statute that is similar to Section 4177.
D.
We turn next to the Superior Court’s determination that the apparent
dissimilarity of at least a portion of N.J. § 39:4-50 is “truly illusory.” This
conclusion rests on the premise that theoretically—for there are no Delaware
precedents or examples of prosecutions to support it—“it would seem Delaware’s
DUI and accomplice liability statutes would operate in the same manner as New
30 11 Del. C. § 4177(a). 31 Our decision is consistent with Stewart v. State, where we held that a comparative analysis of the Delaware statute and the statute under which a prior conviction rests, “without reference to the facts and circumstances underlying the [prior] conviction” will suffice to determine similarity. 930 A.2d 923, 926 (Del. 2007); see also State v. Rogers, 2001 WL 1398583 (Del. Super. Ct. Oct. 9, 2001), aff’d, 798 A.2d 1042, 2002 WL 1058160 (Del. May 22, 2002) (TABLE). Neither Stewart nor Rogers involved a prior conviction under a statute that punished conduct that is not an offense under Section 4177. 12 Jersey’s express provision”32 that punishes persons who knowingly permit others to
drive under the influence. We are not persuaded by the Superior Court’s supposition
for two reasons.
First, Delaware’s accomplice-liability statute, found at 11 Del. C. § 271,
appears to require more active conduct on the part of an accomplice than the passive
permission that will support a conviction under N.J. § 39-4:50. The Superior Court
did not explain—and we do not see—how permitting a person to engage in conduct
falls with any of the pertinent subsections of Section 271.33
32 Daniels, 2019 WL 6869071, at *4. Daniels claims that it was error for the Superior Court to consider the issue of accomplice liability sua sponte and without giving the parties an opportunity to brief the issue. Our ruling renders consideration of the procedural issue unnecessary. But we do not see the State’s failure to make this argument as entirely irrelevant. Put another way, that it did not occur to the Delaware Department of Justice that a person could be prosecuted in Delaware for aiding and abetting a motor vehicle violation—even a very serious one—casts some measure of doubt on the court’s theoretical speculation. 33 11 Del. C. § 271 states:
A person is guilty of an offense committed by another person when: (1) Acting with the state of mind that is sufficient for commission of the offense, the person causes an innocent or irresponsible person to engage in conduct constituting the offense; or (2) Intending to promote or facilitate the commission of the offense the person: a. Solicits, requests, commands, importunes or otherwise attempts to cause the other person to commit it; or b. Aids, counsels or agrees or attempts to aid the other person in planning or committing it; or c. Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so; or (3) The person’s conduct is expressly declared by this Criminal Code or another statute to establish the person’s complicity. Nothing in this section shall apply to any law-enforcement officer or the officer’s agent while acting in the lawful performance of duty. 13 Second, the cases the Superior Court cited in support of its accomplice-
liability driving-under-the-influence theory are of questionable utility. As an initial
matter, all of the cases cited by the Superior Court involve driving-under-the-
influence charges where an accident occurred and two occupants of the car—a driver
and a passenger—are both intoxicated.34 And in four of them, it was unclear whether
the defendant was driving or riding as a passenger when the accident occurred.35
In Venable v. State,36 the defendant and an acquaintance he had recently met
at a tavern were involved in a car accident. Although it was unclear who was driving
at the time of the accident, upon arrival at the scene, the arresting officer found the
defendant behind the wheel attempting to drive the vehicle out of a ditch. To be
sure, the court held that either of two alternative findings of the trial court—one that
the defendant was driving and the other that he had allowed his friend, who the
defendant knew was under the influence, to drive—were sufficient to sustain the
defendant’s driving-under-the-influence conviction. But a closer look at Venable,
decided in 1965, does not inspire confidence in its current vitality. For one thing,
the Venable reasoning rests on a 1940 case, Brewer v. State,37 that did not find that
34 See State v. Satern, 516 N.W.2d 839, 840 (Iowa 1994); State v. Lemacks, 996 S.W.2d 166, 167 (Tenn. 1999); Venable v. State, 397 S.W.2d 231, 232 (Tex. Crim. App. 1965); State v. Millette, 795 A.2d 1182, 1183 (Vt. 2002); Taylor v. State, 83 So.2d 879, 880 (Fla. 1955). 35 See Satern, 516 N.W.2d at 840; Lemacks, 996 S.W.2d at 168; Venable, 397 S.W.2d at 232; Taylor, 83 So.2d at 880. 36 397 S.W.2d 231. 37 143 S.W.2d 599 (Tex. Crim. App. 1940). 14 a person could be convicted of driving under the influence under an accomplice-
liability theory. Rather, Brewer involved the prosecution of an automobile owner
for murder of a five-month-old baby. The relevant holding is found in a sentence of
Faulknerian length:
If the appellant has advised and agreed to all the acts and conduct of a companion whom he has placed in charge of his car and acts with him for hours, as in the instant case, in recklessly driving upon the streets and public highways in an intoxicated condition, where it may be known that the driver of the car is incapable of judicious control and the owner who places it in his hands continues with him and permits him to use it while in that condition, watches him make one reckless drive after another, as the record discloses in this case, crashing into other automobiles, a cattle-guard, into and across ditches, and repeatedly acts without judgment or discretion and without regard for the rights of other, it would seem that there would be no difficulty in concluding that he is responsible as a principal for whatever might result therefrom, provided it could have been reasonably anticipated as a result.38
This describes much more egregious conduct than would expose a person to
prosecution under the Superior Court’s application of accomplice liability to motor
vehicle offenses. We also are not certain that Brewer’s holding sits comfortably
with the circumstances presented in Venable. And our skepticism of Venable is
only heightened by the fact that we cannot find, in the 55 years since its publication,
38 Id. at 601. 15 any Texas case that has cited it for the proposition adopted by the Superior Court
here.39
Likewise, we are not prepared to rely on State v. Millette40 to extend
accomplice liability to driving-under-the-influence charges. It is true that, in
Millette, the defendant was charged with aiding in the commission of a DUI. But
that is not instructive here because Vermont’s motor vehicle code, unlike
Delaware’s, “establishes criminal liability for one who ‘aids, abets, induces,
procures, or causes’ the commission of a motor vehicle felony or misdemeanor,
creating accomplice liability for these acts.”41
Admittedly, in State v. Lemacks,42 another case in which it was unclear who
was driving at the time of an automobile accident, the Tennessee Supreme Court
reviewed—and did not overturn—the defendant’s driving-under-the-influence
conviction, after the prosecution had presented alternative theories of liability. But
the issues before the court (jury unanimity, sufficiency of the evidence, sufficiency
of the description of the charged offense in the indictment) did not relate to the
validity of the prosecution’s theory.
39 In fact, Venable has not been cited with approval by any court—other than the Superior Court— for the proposition adopted by the court in this case. 40 795 A.2d 1182. 41 Id. at 1183. 42 996 S.W.2d 166. 16 In the two other cases where the driver at the time of the accident was
unknown, an occupant in another car involved in the accident was killed. In State v.
Satern,43 the Iowa Supreme Court determined that the state’s criminal code
specifically permitted a finding of vicarious liability for drunk driving that results in
vehicular homicide. The court “perceive[d] no meaningful distinction between
imposing criminal liability for an unintended death or injury resulting from drunk
driving, and imposing criminal consequences for unintended deaths that occur in
furtherance of other criminal behavior.”44 In State v. Taylor, the Florida Supreme
Court observed that, in a manslaughter prosecution, it was proper to find criminal
liability where “‘the owner of . . . an automobile knowingly puts that instrumentality
in the immediate control of a careless and reckless driver, sits by his side, and permits
him without protest so recklessly and negligently to operate the car as to cause the
death of another.’”45 We see both of these cases as presenting a straightforward
application of the theory of accomplice liability to serious violent crimes as defined
in the states’ respective criminal codes. They do not, however, persuade us that our
state has—or would in an appropriate case—impose criminal liability on a person
who merely permits a person to drive while under the influence.
43 516 N.W.2d 839. 44 Id. at 842–43. 45 Taylor, 83 So.2d at 880 (quoting Story v. United States, 16 F.2d 342, 344 (D.C. Cir. 1926)). 17 Third, the Superior Court’s conjecture that under Delaware law individuals
who permit their vehicles to be driven by intoxicated persons are guilty themselves
of driving under the influence has potentially far-reaching—and likely unintended—
ramifications. For instance, might the Superior Court’s extension of accomplice
liability extend to other motor vehicle offenses? Will a mother face criminal
penalties when she permits her absent-minded teenager to drive her car when the
teenager drives carelessly? Is a kind-hearted friend responsible for the speeding
tickets of his lead-footed companion to whom he lends his car? Although at first
blush these scenarios may seem far-fetched, we see no reason why the extension of
accomplice liability to motor vehicle offenses as posited by the Superior Court,
without some limiting principle, could not lead to such unusual results.46
E.
Finally, we address the Superior Court’s concern that it “would frustrate the
application of Delaware’s recidivist statute . . . if [a] recidivist [could] just point to
any elemental difference on the outer edges of the other state’s substantive DUI
statute and compel proof that [that] elemental difference played no part in his or her
prior convictions.”47 This is so, according to the court, because many states consider
46 These examples also illustrate that positing a novel theory of criminal liability in a case where it is neither squarely at issue nor argued by the parties is a fraught exercise; indeed, for that reason, we do not speak definitively on it here. 47 Daniels, 2019 WL 6869071, at *5. 18 first offenses that do not result in an accident or injury as low-level offenses that are
often adjudicated in municipal and magistrate courts. These courts “will often lack
procedures and formalities present in most criminal prosecutions that would generate
even the limited class of Shepard documents . . . that a Court might need to resort
to.”48 Although the Superior Court’s disquiet is perhaps understandable, it must, in
our view, give way to considerations of faithfulness to the statute and fairness to the
defendant.
IV.
WE REVERSE the Superior Court’s determination that Daniels’ 2012 New
Jersey conviction under N.J. § 39:4-50 is a “prior or previous conviction” for
sentencing purposes under Section 4177(d)(3), VACATE its December 16 corrected
sentencing order, and REMAND for resentencing consistent with this opinion.
48 Id. The absence of Shepard documents will, as we understand the Superior Court’s concern, unfairly inure to the benefit of repeat DUI offenders. 19