IN THE SUPREME COURT OF THE STATE OF DELAWARE

BRADLEY WINGO

,

Defendant Below, Appellant,

v.

STATE OF DELAWARE

,

Plaintiff Below, Appellee. § § § § § § § § § § § No. 434, 2019

Court Below: Superior Court of the State of Delaware

Cr. ID. No. 1903000581(N)

Submitted: May 6, 2020 Decided: May 26 , 2020

Before VAUGHN

, TRAYNOR, and MONT G OMER Y

- REEVES , Justices.

O R D E R

1. A person convicted of a third offense of Driving Under the Influence or

With a Prohibited Alcohol or Drug Content (DUI) must be sentenced to not less than

one year nor more than two years of Level V imprisonment. The first three months

of the minimum sentence cannot be suspended, but the sentencing court may

suspend up to nine months of the minimum sentence on condition that the person

participates in both a drug and alcohol abstinence program and a drug and alcohol

treatment program. The statutory provision governing the drug and alcohol

treatment program p rovides as follows:[T]he offender shall complete a program of supervision which shall include:

b. An intensive inpatient or outpatient drug and alcohol treatment program for a period of not less than 3 months. Such treatment and counseling may be comple ted while an offender is serving a Level V or a Level IV sentence. 1

2. The Appellant, Bradley Wingo, pled guilty to a DUI third offense in a plea

agreement in which the State recommended that he be sentenced to two years of

imprisonment and that all but the mandatory three months be suspended. The

Superior Court followed that recommendation and ordered that the required drug

and alcohol treatment program be completed at Level IV House Arrest following

completion of the three months of Level V imprisonme nt. The sentencing order

further provided that Wingo was to serve one year at Level II probation following

completion of the drug and alcohol treatment program . During his opportunity to

make sentencing comments, defense counsel requested that Wingo be p ermitted to

go straight from Level V imprisonment to Level II probation and complete the drug

and alcohol treatment program at Level II. The sentencing judge declined that

request, expressing the opinion that the statute required that the drug and alcohol

treatment program be completed at Level V or Level IV.

1 21 Del. C. § 4177(d)(9)b.3. On appeal, Wingo contends that the statute does not require that the drug

and alcohol treatment program be completed at Level V or Level IV. He argues that

the statute’s use of the permissive wo rd “may” gives the sentencing court the

discretion to decide whether the program will be completed at Level V or Level IV

or , in the court’s discretion, at some lesser level, such as Level II.

4. We reject Wingo’s contention. If we were to accept Wingo’s argument,

the sentence stating that the program may be completed at Level V or Level IV

becomes completely superfluous. If the sentence were not there at all, the sentencing

judge would have the discretion to permit completion of the program at a n y level of

supervision. In order for the sentence to have purpose, it must be construed as giving

the sentencing judge the discretion to select between Level V and Level IV for

completion of the drug and alcohol program, but as limiting the judge’s discre tion

to those two levels.

NOW, THEREFORE, IT IS THE ORDER of the Court, that the judgment of

the Superior Court is AFFIRMED.

BY THE COURT:

/s/ James T. Vaughn, Jr. Justice