Hester v. State

• Court: Supreme Court of Delaware
• Decided: March 28, 2019
• Docket: 71, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

CORNELL HESTER, § § Defendant Below, § No. 71, 2019 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 0912010604 (N) § Plaintiff Below, § Appellee. §

Submitted: March 18, 2019 Decided: March 28, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

ORDER

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

appears to the Court that:

(1) On February 19, 2019, the appellant, Cornell Hester, filed a notice of

appeal from a Superior Court order, dated and docketed on December 20, 2018,

denying his request for a certificate of eligibility to file an application for sentence

modification under 11 Del. C. § 4214(f). A timely notice of appeal should have been

filed by January 22, 2019.1 The Senior Court Clerk issued a notice directing Hester

1 Supr. Ct. R. 6(a)(iv) (providing notice of appeal must be filed “[w]ithin 30 days after entry upon the docket of a judgment or order in any proceeding for post-conviction relief”); Supr. Ct. R. 11(a) (providing that if the last day of the time period is a legal holiday, then the time period runs until the next day the Clerk’s office is open). 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, Hester states that he has

been transferred to multiple prisons, including a Pennsylvania prison, since the 2017

prison riot. Although he was transferred from the Pennsylvania prison to Howard

R. Young Correctional Institution (“HRYCI”) in September 2018, he did not receive

his legal paperwork that he needed to file this appeal from the Pennsylvania prison

until February 2019. In response, the State notes that these issues are not attributable

to court-related personnel and therefore do not fall within the exception to the

general rule that mandates the timely filing of a notice of appeal.

(3) The State also laudably brings to the Court’s attention that the HRYCI

prison mail logs do not indicate whether Hester received timely notice of the

Superior Court’s December 20, 2018 order. It is unclear whether the Superior Court

order was sent to HRYCI or the Pennsylvania prison or whether there was a delay

or a lack of distribution by prison personnel. Because of the possibility that Hester

did not receive the December 20, 2018 order in a timely manner, the State suggests

that the matter be remanded to the Superior Court with directions to re-issue the

December 20 2018 order so Hester has the opportunity to file a timely notice of

appeal.

2 (4) We agree that the proper course of action is to remand this matter to the

Superior Court. Upon remand, the Superior Court shall resissue the December 20,

2018 order.

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/ Collins J. Seitz, Jr. Justice