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Morris v. State6/4/2002
Submitted: March 5, 2002
ORDER
This 4th day of June, 2002, upon consideration of the briefs of the parties, it appears to the Court that:
1) Virgil Morris appeals from his conviction, following a jury trial, of driving under the influence . He argues that his conviction and sentence should be reversed because the Superior Court improperly amended the indictment on the morning of trial, and because the court erred in using his prior misdemeanor convictions to enhance his sentence.
2) In the early hours of October 7, 2000, Seaford police officers found Morris passed out behind the wheel of his car in the drive-thru lane of a Dunkin' Donuts store. When Officer Chaffinch opened the car door in an effort to awaken Morris, he smelled alcohol. After Officer Finch conducted a series of field sobriety tests, and Morris failed them, Morris was arrested for driving under the influence .
3) Morris was indicted for driving "under the influence of alcohol," pursuant to 21 Del. C. §4177(a). Before trial, the State learned that Morris was planning to argue that he was not under the influence of alcohol on the night in question, but instead was under the influence of prescription medication. On the morning of trial, the trial court granted the State's motion to amend the indictment to read "under the influence of alcohol, drugs, or a combination of both," pursuant to the same code section. Morris was convicted and, because this was Morris's seventh drug or alcohol related driving conviction, he was sentenced as a class E felon pursuant to 21 Del. C. §4177(d)(4) .
4) Morris argues that the amendment to his indictment violated his right to indictment by a grand jury. We review this claim of legal error de novo. Subsection (a) of the relevant statute provides that: "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. . ." The statute continues: "the charging document may allege a violation of subsection (a) without specifying any particular subparagraph of subsection (a) and the prosecution may seek a conviction under any of the subparagraphs of subsection (a)."
5) It is settled law that an indictment may be amended by the Court "as to matters of form,... so long as no new, additional, or different charge is made thereby and the accused will not suffer prejudice to substantial rights." Although Morris's indictment was amended to include the possibility of a different impairing substance, the amendment did not change the elements of the crime, because the identity of the impairing substance is immaterial under §4177. Since the charge was not changed by the amendment, there was no error in allowing it.
6) Morris also argues that the trial court erred as a matter of law in using his prior misdemeanor convictions to enhance his sentence. Morris relies on Baldasar v. Illinois, a United States Supreme Court decision holding that a defendant's 6th amendment right to counsel was violated when his prior uncounseled misdemeanor conviction was used for sentence enhancement. The Supreme Court overruled Baladasar in Nichols v. U.S.:
Today we adhere to Scott v. Illinois, supra, and overrule Baldasar. Accordingly we hold, consistent with the Sixth and Fourteenth Amendments of the Constitution, that an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.
The trial court correctly concluded that, under Nichols, Morris's sentence
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