Hester v. State

• Court: Supreme Court of Delaware
• Decided: January 11, 2021
• Docket: 379, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

CORNELL HESTER, § § No. 379, 2020 Defendant Below, § Appellant, § § v. § Court Below–Superior Court § of the State of Delaware STATE OF DELAWARE, § § Plaintiff Below, § Cr. ID No. 1002002758 (N) Appellee. §

Submitted: January 6, 2021 Decided: January 11, 2021

Before SEITZ, Chief Justice; VALIHURA and MONTGOMERY-REEVES, Justices.

ORDER

After careful consideration of the notice to show cause, the appellant’s

response, and the appellant’s motion for the appointment of counsel, it appears to

the Court that:

(1) On November 9, 2020, the Court received a notice of appeal filed by

the appellant, Cornell Hester. The Superior Court accepted Hester’s guilty plea and

sentenced Hester more than nine years ago on February 10, 2011. A timely notice of appeal had to be filed within thirty days after Hester was sentenced.1 The time

period within which to file a notice of appeal is jurisdictional and thus mandatory.2

(2) On December 9, 2020, the Senior Court Clerk issued a notice directing

Hester to show cause why his appeal should not be dismissed as untimely filed.

Hester filed a response to the notice to show cause, but it does not address the

untimeliness of his notice of appeal.

(3) Under Delaware law, the jurisdictional defect that was created by the

untimely appeal cannot be excused unless Hester can demonstrate that the delay in

filing his appeal was attributable to court-related personnel.3 Hester does not allege,

and the record does not reflect, that Hester’s failure to timely file his notice of appeal

is attributable to court-related personnel. Accordingly, this case does not fall within

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

(4) Hester filed a motion for appointment of counsel in connection with his

appeal. To the extent that Hester seeks counsel to assist him in remedying the

jurisdictional defect created by the untimely appeal, the motion is futile and granting

it is unwarranted. To the extent that Hester seeks the appointment of counsel to

assist him in challenging the validity of his conviction, the motion is rendered moot

by the Court’s dismissal of this appeal.

1 Del. Supr. Ct. R. 6(a)(iii). 2 Carr v. State, 554 A.2d 778, 779 (Del. 1989). 3 Bey v. State, 402 A.2d 362, 363 (Del. 1979). 2 NOW, THEREFORE, IT IS HEREBY ORDERED, under Supreme Court

Rule 29(b), that the appeal is DISMISSED. The motion for appointment of counsel

is denied as MOOT.

BY THE COURT:

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