Durham v. State

• Court: Supreme Court of Delaware
• Decided: September 8, 2022
• Docket: 283, 2022
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICHAEL DURHAM, § § No. 283, 2022 Defendant Below, § Appellant, § § Court Below–Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § § Cr. ID No. 0208019524A (K) Appellee. §

Submitted: August 29, 2022 Decided: September 8, 2022

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

After consideration of the notice to show cause and the parties’ responses, it

appears to the Court that:

(1) On August 10, 2022, the appellant, Michael Durham, filed a notice of

appeal from the Superior Court’s July 6, 2022 order denying his third motion for

postconviction relief. A timely notice of appeal was due on or before August 5,

2022.1 The Senior Court Clerk issued a notice directing Durham to show cause why

this appeal should not be dismissed as untimely filed under Supreme Court Rule 6.

1 See Del. Supr. Ct. R. 6(a)(iv) (providing that a notice of appeal must be filed “[w]ithin 30 after entry upon the docket of a judgment or order in any proceeding for postconviction relief”). (2) In his response to the notice to show cause, Durham claims that the

Superior Court initially mailed the July 6, 2022 order to a post office box in Las

Vegas, Nevada—not to the James T. Vaughn Correctional Center (JTVCC) in

Smyrna, Delaware, where Durham is incarcerated. Durham further alleges that he

did not receive a copy of the order until July 20, 2022. To support his claims,

Durham (i) attaches a copy of an envelope from the Superior Court Judges’

Chambers, postmarked July 8, 2022, and addressed to Durham in “Las Vegas, NV

89119,” and (ii) refers the Court to the exhibit attached to his notice of appeal—a

copy of an envelope from the Superior Court Judges’ Chambers, addressed to

Durham at JTVCC, postmarked July 15, 2022, and marked “received” by the JTVCC

mailroom on July 20, 2022.

(3) At the request of the Court, the State also filed a response to the notice

to show cause. The State concedes that (i) the envelopes submitted by Durham

support a finding that the Superior Court’s order was initially mailed to Nevada and

Durham did not receive a copy of the order until July 20, 2022 and (ii) the mailing

delay appears to be attributable to court-related personnel. The State therefore does

not object to remanding this matter to the Superior Court with instructions to re-issue

the July 6, 2022 order to allow Durham to file a timely notice of appeal.

(4) We conclude that Durham’s failure to file a timely notice of appeal is

at least partially attributable to court personnel and that the proper course of action

2 is to remand this matter to the Superior Court. Upon remand, the Superior Court

shall re-issue its July 6, 2022 order.

NOW, THEREFORE, IT IS HEREBY ORDERED that this matter is

REMANDED to the Superior Court for further action in accordance with this Order.

Jurisdiction is not retained.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Chief Justice