Law v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
ALBERT LAW, §
§
Defendant Below, § No. 557, 2017
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 0412009863 (N)
§
Plaintiff Below, §
Appellee. §
Submitted: January 31, 2018
Decided: February 23, 2018
Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
ORDER
This 23rd day of February 2018, upon consideration of the notice to show
cause and the parties’ responses, it appears to the Court that:
(1) On December 21, 2017, the appellant, Alberto Law, filed a notice of
appeal from a Superior Court order, dated November 13, 2017 and docketed on
November 15, 2017, denying Law’s motion for postconviction relief under Superior
Court Criminal Rule 61 and granting his postconviction counsel’s motion to
withdraw. Under Supreme Court Rule 6(a)(iv), a timely notice of appeal should
have been filed on or before December 15, 2017. The Senior Court Clerk issued a
notice directing Law to show cause why this appeal should not be dismissed as
untimely filed under Supreme Court Rule 6.
(2) In his response to the notice to show cause, Law states that, on
November 17, 2017, he received a letter, dated November 14, 2017, from the Office
of Conflicts Counsel informing him that his postconviction matter had been assigned
to new postconviction counsel (“Postconviction Counsel”). On November 19, 2017,
Law received the Superior Court’s order denying his motion for postconviction relief
and granting his former postconviction counsel’s motion to withdraw. Law claims
he contacted the office of Postconviction Counsel and a secretary informed him that
Postconviction Counsel would review his matter and file a notice of appeal.
(3) As the appeal deadline approached, Law contacted Postconviction
Counsel’s office again, but did not receive an answer. Law then filed the notice of
appeal. Law also states that the prison mailroom has been short-staffed, leading to
delays in incoming and outgoing mail, and that access to the law library has been
limited since February 2017.
(4) Postconviction Counsel states that after he received the Superior Court
order denying Law’s motion for postconviction relief and granting former
postconviction counsel’s motion to withdraw, he sent a letter to Law on November
18, 2017 with the Superior Court order. Under Supreme Court Rule 26(a) and
Superior Court Criminal Rule 61(e), Postconviction Counsel informed Law of the
Superior Court ruling, advised him of his right to appeal and the rules for timely
filing a notice of appeal, and notified him that he had the burden of filing a notice of
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appeal. Postconviction Counsel confirms that Law called his office on or about
November 21, 2017 and spoke with a staff member. The staff member’s notes of
the call do not reflect that a notice of appeal or the November 18, 2017 letter were
discussed. As to the second reported call, Law did not leave a voicemail.
Postconviction Counsel asks the Court to accept Law’s appeal in light of the change
in counsel and possible delay in the delivery of the November 18, 2017 letter.
(5) The State initially notes that court personnel are not responsible for any
delay in the filing of Law’s notice of appeal. The State also avers that Department
of Correction mail records show that Law received no legal mail between November
15, 2017 and December 14, 2017, suggesting that he never received Postconviction
Counsel’s November 18, 2017 letter. Department of Correction call records show
Law spoke to someone at Postconviction Counsel’s office on November 21, 2017.
Due to the combination of the timing of Postconviction Counsel’s appointment and
the apparent delay or non-delivery of the November 18, 2017 letter, the State
suggests remand of this matter to the Superior Court with instructions to re-issue the
November 13, 2017 order. This will give Law the opportunity to pursue a timely
appeal.
(6) We agree that the proper course of action is to remand this matter to the
Superior Court. Upon remand, the Superior Court should reissue its order denying
Law’s motion for postconviction relief so Law can file a timely notice of appeal.
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NOW, THEREFORE, IT IS ORDERED that the within matter is
REMANDED to the Superior Court for further action in accordance with this order.
Jurisdiction is not retained.
BY THE COURT:
/s/ Gary F. Traynor
Justice
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