Opinion
C.A. No. 09A-08-001 FSS.
Submitted: April 16, 2010.
Decided: June 3, 2010.
Upon Appeal From the Court of Common Pleas — AFFIRMED.
ORDER
1. Sandra V. Anderson appeals the Court of Common Pleas's holding that she is a habitual offender under Delaware's motor vehicle code, 21 Del. C. § 2802(1), and the resulting suspension of her driving privileges for five years. Anderson argued below, and here, that she received ineffective assistance of counsel on her three qualifying convictions, and suspending her license presents a "true hardship."
2. On March 7, 2007, Anderson was charged with driving without a valid license pursuant to 21 Del. C. § 2701(a). With the advice of counsel,
Anderson pleaded guilty on June 25, 2008. On April 8, 2007, Anderson was charged with driving while her license was suspended or revoked pursuant to 21 Del. C. § 2756. Finally, on January 31, 2008, Anderson was again charged with driving without a valid license. Anderson, again with the advice of counsel, pleaded guilty to the April 2007 and the January 2008 charges on April 1, 2009.
3. Following Anderson's 2009 convictions, the Director of the Division of Motor Vehicles sent Anderson's certified conviction record to the Attorney General. Under the habitual offender statute's mandatory provisions, upon receiving the record from the DMV, the Attorney General was charged with the legal duty to file a petition against Anderson, "forthwith." While the Attorney General is typically given wide discretion over charging decisions, § 2804's command that the Attorney General "shall" file the petition suggests that once the Attorney General receives a record from the DMV showing that the driver meets the requirements, the Attorney General has no choice except to file the petition.
See 21 Del. C. § 2804 ("The Attorney General, upon receiving the abstract from the Director of the Division of Motor Vehicles, shall forthwith file a petition against the person named therein in the Court of Common Pleas[.]").
4. It appears that in some cases, despite § 2804's mandatory language, after receiving the DMV record showing that a driver qualifies, the
Attorney General has not filed the required petition. While that may be troubling, it does not form a basis for denying the petition in another case. That is because the Attorney General's charging decisions are only subject to judicial review for due process and equal protection violations. For example, the defendant in State v. Lee showed that only 1.8 percent of similarly situated defendants were prosecuted as habitual offenders. Even so, the Supreme Court of Washington saw no due process or equal protection violations. Delaware's Supreme Court reached the same conclusion in Ward v. State. There, the defendant argued that sentencing under the criminal habitual offender statute, which allows for prosecutorial discretion, was requested in only one-third of all cases where defendants were eligible. Furthermore, citing federal authority, Ward also rejected the defendant's claim that selecting him for prosecution was arbitrary and capricious. Thus, it is settled that unless a defendant can prove a due process or equal protection claim, the Attorney General's charging decisions are not subject to judicial oversight. That is true even if the Attorney General handles other cases differently. In simplest terms, two wrongs do not make a right.
See State v. Valerie I. Anderson, 2010 WL 1006558, at *2 (Del. Com. Pl. Feb. 26, 2010).
See Ward v. State, 414 A.2d 499, 500 (Del. 1980) ("The prosecutor is allowed broad discretion in law enforcement . . . and is not obliged to treat two similarly situated defendants alike."); but see Valerie I. Anderson, 2010 WL 1006558, at *4 (suggesting the Attorney General possesses inherent prosecutorial discretion despite 21 Del. C. § 2804's "mandatory language"); see also infra note 18.
558 P.2d 236 (Wash. 1976), appeal dismissed, Lee v. Washington, 432 U.S. 901 (1977).
See id. at 238-39.
11 Del. C. § 4214.
See Ward, 414 A.2d at 499.
Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967).
See Ward, 414 A.2d at 500.
5. When petitioned by the Attorney General, the Court of Common Pleas's discretion is limited to determining "whether the person . . . is the person whose license is to be revoked, and whether that person was convicted of the offenses listed[.]" Absent a violation of the respondent's constitutional rights, the Court of Common Pleas cannot rely on the Attorney General's charging decisions in other cases as a basis for rejecting a proper petition to declare the respondent a habitual offender.
See State v. Kamalski, 429 A.2d 1315, 1319 (Del. Super. 1981) ("[T]he Legislature has explicitly set out the circumstances under which the Court must suspend a person's license.").
6. Anderson did not file direct appeals after her predicate convictions. Instead, she first challenged the convictions collaterally in the habitual offender proceeding. There, the court-below declined to revisit the earlier proceedings. That was correct because, as a matter of law, predicate convictions are not subject to collateral attack in a habitual offender proceeding unless, in the original proceedings, the trial court lacked jurisdiction or the defendant was unrepresented.
See id. at 1320.
See Garcia v. Superior Court, 928 P.2d 572, 578 (Cal. 1997).
7. Anderson does not contend that the original courts lacked jurisdiction or that she was unrepresented. She claims, as mentioned, that in the proceedings leading to her guilty pleas in the predicate cases, her court-appointed counsel was ineffective. Specifically, Anderson alleges that "[t]here is a strong probability that a jury of peers would not have returned a guilty verdict" and that "recommendations [by counsel] to plead guilty in these matters [were] poor." Anderson's claim is conclusory. But even if true, the habitual offender proceeding was neither the time nor the place to make that argument.
8. There is no constitutional right to collaterally attack prior convictions, based on ineffective assistance of counsel, in habitual offender proceedings. Accordingly, the court-below properly declined to allow Anderson to challenge her prior convictions in the habitual offender proceeding. In order to get traction on her ineffective assistance argument, Anderson first had to knock out the predicate convictions, perhaps by filing motions for postconviction relief in those cases. Of course, that would entail her addressing the waiver and procedural defaults associated with pleading guilty and with not filing a direct appeal. Meanwhile, as explained, the underlying convictions remain safe from collateral attack.
See Kamalski, 429 A.2d at 1320 ("[A]lleged offender[s] may not collaterally attack the convictions upon which the suspension is based, unless the convictions are void."); see also Garcia, 928 P.2d at 578 (asserting that Custis v. United States, 511 U.S. 485 (1994) does not allow an individual to collaterally attack prior convictions in a habitual offender proceeding based on an ineffective assistance of counsel claim).
See Ct. Com. Pl. Crim. R. 61.
See Ct. Com. Pl. Crim. R. 32(d); see also Ct. Com. Pl. Crim. R. 61(i)(3).
See Ct. Com. Pl. Crim. R. 61(i).
9. Anderson's final contention is that the court-below failed to
consider the "true hardship" suspending her license presents. While a five-year suspension is a true hardship, that does not provide a legal basis for failing to enforce the habitual offender law. The fact that losing one's license is a hardship goes to the habitual offender law's deterrent value. That is one of the ideas behind the law.
Tolson v. Court of Common Pleas, 2004 WL 2419154, at *2 (Del. Super. Oct. 13, 2004); see also Kamalski, 429 A.2d at 1317 ("At the hearing, the Court may inquire only whether the person appearing is the individual named in the abstract, and whether that person was indeed convicted of the offenses listed in the abstract."). The court does not accept the holding in State v. Valerie I. Anderson, 2010 WL 1006558, at *4, which considered other petitions and dispositions to determine whether the Attorney General's enforcement of the habitual offender statute was arbitrary and capricious.
See 21 Del. C. § 2801.
Concern over the hardship that losing one's license entails is supposed to motivate drivers to obey the motor vehicle law, including its prohibitions on driving without a license.
10. The Court of Common Pleas followed the procedure required by 21 Del. C. §§ 2802- 2808, and Anderson's certified conviction record contains three, valid, predicate convictions. Therefore, under Delaware law, her license was subject to a mandatory, five-year suspension. Ineffective assistance in the predicate cases and the hardship caused by the suspension were invalid defenses.
21 Del. C. § 2802(1); see also 21 Del. C. § 2802(4) ("For the purpose of this chapter, the term `conviction' shall mean a final conviction, a plea of guilty or a forfeiture of bail or collateral deposited to secure a defendant's appearance in court, which forfeiture has not been vacated.").
For the foregoing reasons, the decision below is based in fact and legally correct. No reason for this court to reverse has been presented. Accordingly, the July 31, 2009 decision of the Court of Common Pleas is AFFIRMED.
IT IS SO ORDERED.