Anderson v. State ( 2019 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DINO ANDERSON, §
§
Defendant Below, § No. 259, 2019
Appellant, §
§ Court Below: Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. I.D. No. 1808010306 (N)
§
Plaintiff Below, §
Appellee. §
§
Submitted: July 26, 2019
Decided: August 6, 2019
Before VALIHURA, VAUGHN, and SEITZ, Justices.
ORDER
After consideration of the notice to show cause and the parties’ and counsel’s
responses, it appears to the Court that:
(1) On June 17, 2019, the appellant, Dino Anderson, filed a pro se notice
of appeal from a Superior Court sentencing order imposed on May 15, 2019. Under
Supreme Court Rule 6, a timely notice of appeal should have been filed on or before
June 14, 2019.1 A notice of appeal must be timely filed to invoke the Court’s
appellate jurisdiction.2
1
DEL. SUPR. CT. R. 6(a)(iii).
2
Carr v. State, 554 A.2d 778, 779 (Del. 1989).
(2) The Senior Court Clerk issued a notice to Anderson directing him to
show cause why the appeal should not be dismissed as untimely filed. In his
response, Anderson stated that his trial counsel had advised him that he “could not
file an appeal for my reasons and opinions.” In light of the obligations of trial
counsel under Supreme Court Rule 26, the Court requested a response from
Anderson’s trial counsel. In the response, trial counsel indicated that he had advised
Anderson of the right to appeal and he acknowledged his continuing obligation under
Rule 26(a), but he asserted that he had complied with that obligation because he
“was unaware of any desire, on the part of the client, to file an appeal after having
been advised, by counsel, of the futility of such action.”3
(3) At the Court’s request, the State also filed a response. The State
indicates that the response of Anderson’s trial counsel suggests that trial counsel
believed that Anderson had been convicted only of misdemeanor charges, although
Anderson in fact was convicted of the felony charge of Carrying a Concealed Deadly
Weapon.4 The State also acknowledges that trial counsel’s account of his
communication with Anderson after trial is ambiguous concerning “whether
Anderson told his counsel to file an appeal, and whether Anderson was aware that
3
Response to Appellant’s Response to Notice to Show Cause, Docket Entry No. 13, at 2
(hereinafter, “Trial Counsel Response”).
4
State’s Answer to Notice to Show Cause, Docket Entry No. 17, at 3 (hereinafter, “State
Response”). See also Trial Counsel Response, affidavit at 6-7 (listing jury verdicts on charges).
2
he could instruct his counsel to appeal even though counsel believed the appeal
lacked any merit. The record suggests, however, that there may have been some
miscommunication between Anderson and counsel regarding Anderson’s desire to
appeal.”5 The State therefore suggests that the matter be remanded to the Superior
Court with directions to vacate and reimpose Anderson’s sentence, in order to allow
Anderson, with counsel’s assistance, the opportunity to file a timely notice of appeal.
(4) We agree that the proper course of action is to remand this matter to the
Superior Court.6 Upon remand, the Superior Court should resentence Anderson to
permit his counsel the opportunity to file a timely appeal.
NOW, THEREFORE, IT IS ORDERED that the matter is REMANDED to
the Superior Court for further action in accordance with this order. Jurisdiction is
not retained. Any docketing fee paid to this Court by the appellant in conjunction
with this appeal may be applied to a future direct appeal in this criminal action
number.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
5
State Response at 5.
6
Amaro v. State, 2013 WL 1087644 (Del. Mar. 13, 2013).
3