IN THE SUPREME COURT OF THE STATE OF DELAWARE

BRADLEY WINGO,

Defendant Below, 

Appellant,

v.

STATE OF DELAWARE,

Plaintiff Below, 

Appellee.

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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 MONTGOMERY-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 provides 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 completed 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 imprisonment. 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 permitted 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 word “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 any 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 discretion 

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