Mason v. State

• Court: Supreme Court of Delaware
• Decided: February 15, 2019
• Docket: 10, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

RICHARD MASON, § § Defendant Below, § No. 10, 2019 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1412018074 (S) § Plaintiff Below, § Appellee. §

Submitted: January 25, 2019 Decided: February 15, 2019

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

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

to the Court that:

(1) On January 7, 2019, the appellant, Richard Mason, filed a notice of

appeal from a November 29, 2018 Superior Court order sentencing him for a

violation of probation (“VOP”). Under Supreme Court Rule 6(a)(iii), a timely notice

of appeal should have been filed on or before December 31, 2018. The Senior Court

Clerk issued a notice directing Mason 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, Mason states that his

counsel was supposed to file a notice of appeal. Mason’s counsel in the VOP proceeding was asked to respond to this claim. Mason’s counsel stated that he

provided Mason with an “Advice Regarding Appeal from Violation of Probation”

form and that Mason did not consult with him further about filing a notice of appeal.

(3) Time is a jurisdictional requirement.1 A notice of appeal must be

received by the Office of the Clerk of this Court within the applicable time period in

order to be effective.2 An appellant’s pro se status does not excuse a failure to

comply strictly with the jurisdictional requirements of Supreme Court Rule 6.3

Unless an appellant can demonstrate that the failure to file a timely notice of appeal

is attributable to court-related personnel, an untimely appeal cannot be considered.4

(4) The record does not support Mason’s claim that his counsel was

supposed to file a notice of appeal. An “Advice Regarding Appeal from Violation

of Probation” form was signed by Mason’s counsel and filed in the Superior Court.

Counsel provided Mason with the original of the form. The form reflects that Mason

was informed that if he wished to appeal the VOP finding or sentence, he had to file

a notice of appeal within 30 days and counsel would not file a notice of appeal on

his behalf.

1 Carr v. State, 554 A.2d 778, 779 (Del. 1989). 2 Supr. Ct. R. 10(a). 3 Smith v. State, 47 A.3d 481, 486-87 (Del. 2012). 4 Bey v. State, 402 A.2d 362, 363 (Del. 1979). 2 (5) Nothing in the record reflects that Mason’s failure to file a timely notice

of appeal is attributable to court-related personnel. Consequently, this case does not

fall within the exception to the general rule that mandates the timely filing of a notice

of appeal. This appeal must be dismissed.

NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rule 29(b),

that this appeal is DISMISSED.

BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice