Mencia v. State ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MARVIN MENCIA, §
§ No. 17, 2015
Defendant Below, §
Appellant, § Court Below–Superior Court of
§ the State of Delaware in and for
v. § New Castle County
§
STATE OF DELAWARE, § Cr. ID No. 0908028554
§
Plaintiff Below, §
Appellee. §
Submitted: February 9, 2015
Decided: February 11, 2015
Before HOLLAND, VALIHURA and VAUGHN, Justices.
ORDER
This 11th day of February 2015, upon consideration of the Clerk’s
notice to show cause and the appellant’s response to the notice, it appears to
the Court that:
(1) On January 14, 2015, the appellant, Marvin Mencia, filed a
notice of appeal from an unidentified Superior Court order in a criminal
case.1 Under Supreme Court Rule 7, a notice of appeal must “[d]esignate
the judgment or order . . . sought to be reviewed and the date thereof.”2
1
The notice of appeal filed on January 14, 2015 did not attach a copy of the court order,
as Mencia would later assert.
2
Del. Supr. Ct. R. 7(c)(3).
Therefore, by letter dated January 14, 2015, the Senior Court Clerk advised
Mencia that the notice of appeal was incomplete, and that he must file an
amended notice of appeal on or before January 29, 2015.3
(2) On January 26, 2015, Mencia filed an amended notice of appeal
identifying the Superior Court’s order of November 3, 2014, as the order
from which the appeal is taken. On its face, the amended notice of appeal
was untimely filed.4 Therefore, the Senior Court Clerk issued a notice under
Supreme Court Rule 29(b) directing that Mencia show cause why the appeal
should not be dismissed.
(3) Mencia filed a response to the notice to show cause on February
9, 2015. In his response, Mencia argues that the Court should accept the
appeal as timely filed because (i) he submitted the amended notice of appeal
by the January 29, 2015 deadline established by the Senior Court Clerk; (ii)
he did not receive the Superior Court’s order of November 3, 2014 until
November 7, 2014; and (iii) any delay in filing the notice of appeal should
be excused in view of “the Thanksgiving Holiday” and, according to
Mencia, “‘snow days’ in December 2014” when state government offices
were closed, which were “factors out of his control.”
3
The Senior Court Clerk also provided Mencia with a copy of Official Form A, the
Court’s notice of appeal form.
4
Supreme Court Rule 6 provides that a notice of appeal must be filed within thirty days
of the order from which the appeal is taken.
2
(4) Mencia’s contentions are unavailing. Under Delaware law and
procedure, “[t]ime is a jurisdictional requirement.”5 Unless an appellant can
demonstrate that the failure to file a timely notice of appeal is attributable to
court-related personnel and not to the appellant, an untimely appeal cannot
be considered.6
(5) To invoke this Court’s appellate jurisdiction, a notice of appeal
in a postconviction proceeding must be received by the Clerk7 “[w]ithin 30
days after entry upon the docket” of the order sought to be reviewed.8
Intermediate Saturdays, Sundays, legal holidays and “other day[s] on which
the office of the Clerk is closed” are included in the computation unless the
last day of the appeal period is a Saturday, Sunday, legal holiday, or other
day when the Clerk’s office is closed, “in which event the period runs until
the end of the next day on which the office of the Clerk is open.”9
(6) In Mencia’s case, the November 3, 2014 order from which the
appeal is taken was entered on the Superior Court docket on November 7,
5
Carr v. State, 554 A.2d 778, 779 (Del. 1989).
6
See Bey v. State, 402 A.2d 362, 363 (Del. 1979) (permitting review of untimely appeal
when delay was “occasioned by court related personnel”).
7
Del. Supr. Ct. R. 10(a).
8
Del. Supr. Ct. R. 6(a)(iii).
9
Del. Supr. Ct. R. 11(a).
3
2014. Therefore, any appeal from the November 3 order was required to be
filed with the Clerk on or before December 8, 2014.
(7) Mencia did not file the notice of appeal until January 14, 2015.
Mencia does not contend, and the record does not reflect, that his failure to
file the notice of appeal by December 8, 2014 is attributable to court-related
personnel. Consequently, this case does not fall within the exception to the
general rule that mandates the timely filing of an appeal.
NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rules
6(a)(iii) and 29(b), that the appeal is DISMISSED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
4