Thomas v. State

IN THE SUPREl\/HE COURT OF THE STATE OF DELAWARE
JAMES A. THOMAS, §
§ No. 58, 2016
Defendant Below, §
Appellant, § Court Below-Superior Court of
§ the State of Delaware
v. §
§ Cr. ID No. 93K01153DI
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Subrnitted: March 24, 2016
Decided: May 27, 2016
Before STRINE, Chief Justice; HOLLAND and VAL[HURA, Justices.
0 R D E R
This 27th day of May 20l6, upon consideration of the notice to show cause
issued by the Clerk, the response to the notice to show cause filed by the appellant,
the answer to the response filed by the State of Delaware, and the appellant’s reply,
it appears to the Court that:
(l) In 1993, the appellant, James A. Thomas, pled guilty to two sexual
offenses and was sentenced to life in prison plus twenty years. Thomas filed a
motion for correction of illegal sentence on July 16, 2015. The motion was denied
on September 9, 2015. Thomas filed an appeal from the September 9 order on
February 8, 2016.
(2) To invoke this Court’s jurisdiction in an appeal from a postconviction
order, the notice of appeal must be filed within thirty days after entry upon the docket
of the order from which the appeal is taken.l The only exception to the rule is when
the failure to file the appeal within the thirty-day period is attributable to court
personnel.z
(3) On February 8, 2016, the Clerk issued a notice under Supreme Court
Rule 29(b), directing Thomas to show cause why this appeal should not be dismissed
as untimely filed.3 In response to the notice, Thomas contends that the delay in filing
the appeal was caused by the Superior Court’s failure to send him the September 9,
2015 order. Thomas claims that he did not learn that the court had denied the
sentence correction motion until November 2015, when he inquired about the status
of the motion. The Superior Court docket indicates that, in response to Thomas’
requests, a copy of the docket sheet was sent to him on November 17, 20l5, and a
copy of the September 9 order was sent to him on December 2, 20l5.
(4) This Court has consistently held that when an appellant filing an
untimely appeal attributes the delay in filing the appeal to court-related error, the
appellant must file the notice of appeal within thirty days of receiving notice of the
1 Del. Supr. Ct. R. 6(a)(iii).
2 Bey v. Sm¢e, 402 A.zd 362, 363 (Dei. 1979).
3 Del. Supr. Ct. R. 29(b).
order the appellant is appealing." In this case, Thomas states, and the Superior Court
docket reflects, that he had notice of the September 9 order in November 2015 when
he received the Superior Court docket sheet listing the order.
(5) Once Thomas received the Superior Court docket sheet he had
sufficient information to file a notice of appeal,5 and it was incumbent upon Thomas
to file the notice of appeal within thirty days.é Although his notice of the order was
less than ideal, once he had notice, Thomas had an obligation, even as a pro se
litigant, to act with diligence.7 The record does not reflect that court-related
personnel prevented Thomas from filing a notice of appeal within thirty days of
receiving notice of the September 9 order.
(6) At the Court’s request, the State filed an answer to Thomas’ response
to the notice to show cause. The State agrees that the appeal was untimely filed but
contends that the record fairly reflects that Thomas had notice of` the September 9
order in mid-December 2015, because Thomas’ notice of appeal was dated
December 17, 2015, and the Superior Court docket indicates a copy of the September
9 order was sent to Thomas on December 2, 2015. Assuming, without finding, that
4 Lewz`s v. State, 2015 WL 5679716 (Del. Sept. 25, 2015) (citing cases).
5 Cf Del. Supr. Ct. R. 7(9) (providing that a notice of appeal shall attach the order on appeal if
available).
6 Supra note 4.
7 ]d.
Thomas did not have notice of the September 9 order until the last day of December
on December 31, 2015, Thomas does not explain why he did not file the appeal
within thirty days, i.e., by February 1, 2016,8 and instead waited until February 8,
2016, to file the appeal.
NOW, THEREFORE, IT lS ORDERED, under Supreme Court Rule 29(b),
that the appeal is DISl\/IISSED.
BY THE COURT:
/s/ Randy J. Holland
Justice
8 The Clerk’s Office was closed on Saturday, January 30 and Sunday, January 31, 2016.
4