Tuohy v.State ( 2019 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MARTIN TUOHY, §
§
Defendant Below, § No. 463, 2019
Appellant, §
§ Court Below: Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. I.D. No. 1807013187 (S)
§
Plaintiff Below, §
Appellee. §
§
Submitted: November 22, 2019
Decided: December 4, 2019
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
After consideration of the notice to show cause and the appellant’s response,
it appears to the Court that:
(1) On November 8, 2019, the appellant, Martin Tuohy, filed a notice of
appeal from a Superior Court order dated September 30, 2019 and docketed on
October 3, 2019, denying Tuohy’s motion for sentence modification. Under
Supreme Court Rule 6, a timely notice of appeal should have been filed on or before
November 4, 2019.
(2) A notice of appeal must be timely filed to invoke the Court’s appellate
jurisdiction.1 The jurisdictional defect created by the untimely filing of a notice of
appeal cannot be excused unless the appellant can demonstrate that the delay in filing
is attributable to court-related personnel.2
(3) On November 12, 2019, the Senior Court Clerk issued a notice directing
Tuohy to show cause why this appeal should not be dismissed as untimely filed. In
response to the notice to show cause, Tuohy asserts that he is incarcerated, with
limited access to the prison law library; that the prison was on institutional lockdown
on October 30, 2019, and therefore he could not use the library that day to complete
and file his notice of appeal, as he had been scheduled to do; and that he filed his
appeal on November 4, 2019. He also states that that the library staff instructed him
that he had thirty days to file his appeal.
(4) Tuohy’s response to the notice to show cause does not provide a basis
for excusing the untimely filing of the notice of appeal. A notice of appeal must be
received by the Court within the applicable time period to be effective.3 An
appellant’s pro se, incarcerated status does not excuse a failure to comply strictly
with the jurisdictional requirements of Rule 6.4 Although Tuohy may have placed
1
Carr v. State, 554 A.2d 778, 779 (Del. 1989).
2
Bey v. State, 402 A.2d 362, 363 (Del. 1979).
3
DEL. SUPR. CT. R. 10(a).
4
Dixon v. State, 2012 WL 361721 (Del. Feb. 3, 2012).
2
his notice of appeal in the mail on November 4, the Court did not receive it until
November 8. Delaware has not adopted a rule similar to the federal prison mailbox
rule, which deems a notice of appeal as filed at the time it is delivered to prison
authorities for mailing.5 Moreover, limitations on access to the prison law library
do not excuse the timely filing of a notice of appeal.6 Because the record does not
reflect that Tuohy’s failure to file a timely notice of appeal is attributable to court-
related personnel, the appeal must be dismissed.
NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rule 29(b),
that the appeal is DISMISSED.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
5
Schafferman v. State, 2016 WL 5929953 (Del. Oct. 11, 2016).
6
Schoolfield v. State, 1995 WL 264561 (Del. May 3, 1995).
3