Smolka v. State

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARK SMOLKA, § § No. 500, 2014 Defendant-Below, Appellant, § § Court Below – Superior Court v. § of the State of Delaware, in and § for New Castle County STATE OF DELAWARE, § § Cr. ID No. 1308022148 Plaintiff-Below, Appellee. §

Submitted: November 6, 2015 Decided: November 9, 2015

Before HOLLAND, VAUGHN, and SEITZ, Justices.

ORDER

This 9th day of November, 2015, it appears to the Court that:

(1) On September 9, 2014, Mark Smolka appealed his conviction for

possession of a firearm by a person prohibited. He claimed on appeal that the trial

court erred when it found that he waived his right to suppress evidence found

during a search because he failed to attend the suppression hearing. Smolka also

claimed that the Superior Court erred by refusing to instruct the jury on a “lesser of

evils” defense.

(2) On June 23, 2015, we held that a defendant’s voluntary failure to

appear at a suppression hearing waived his right to be present at the hearing, but did not waive the defendant’s constitutional right to challenge evidence as

unlawfully obtained. We remanded the case to Superior Court to conduct a

suppression hearing, and did not reach the second issue raised on appeal. We also

retained jurisdiction over the appeal.

(3) Despite being notified of the date by counsel, Smolka once again

failed to attend at the evidentiary hearing. The court noted that Smolka was at the

time of the evidentiary hearing a fugitive from justice, having failed to appear as

required by the conditions of his probation. The Superior Court conducted an

evidentiary hearing in his absence, and in an August 19, 2015 order, the court

denied Smolka’s motion to suppress.

(4) Upon return of the case to this Court, we issued a rule to show cause

to Smolka’s counsel why the appeal should not be dismissed because Smolka is a

fugitive and has forfeited his right to pursue this appeal. On November 6, 2015,

Smolka’s counsel confirmed that there is a warrant for a violation of probation on

the underlying offense in this appeal because Smolka is an absconder from

probation. Counsel also confirmed that Smolka has voluntarily left the jurisdiction.

(5) A fugitive from justice has no right to pursue an appeal to this Court.

See Redden v. State, 418 A.2d 996, 997 (Del. 1980), citing Crawford v. State, 94

A.2d 603 (Del. 1953) (a fugitive has no right to appellate procedures while he

2 remains a fugitive). Smolka has forfeited his right to continue with this appeal,

and the appeal must be dismissed.

NOW, THEREFORE, IT IS ORDERED that this appeal is DISMISSED.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Justice