Wilson v. State

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JUSTIN WILSON, § § No. 71,2020 Defendant Below, § Appellant, § § v. § Court Below – Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. I.D. No. 0911019557 (S) Plaintiff Below, § Appellee. §

Submitted: February 26, 2020 Decided: March 20, 2020

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

ORDER

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

it appears to the Court that:

(1) The appellant, Justin Wilson, pleaded guilty to robbery and weapons

offenses on March 15, 2010. The Superior Court sentenced Wilson on April 23,

2010.

(2) On December 14, 2010, Wilson filed a motion for postconviction relief.

The Superior Court denied the motion on March 14, 2011. On April 15, 2011,

Wilson filed a notice of appeal from the Superior Court’s March 14, 2011 order

denying the motion for postconviction relief. This Court dismissed that appeal as untimely, because a timely notice of appeal should have been filed on or before April

13, 2011 and the delay was not attributable to court-related personnel. 1

(3) In 2016, Wilson filed a direct appeal from his 2010 conviction and

sentence. In response to a notice to show cause issued in that appeal, he argued that

his counsel had ignored his wishes to file a notice of appeal and misinformed him of

his appeal rights; he requested remand for resentencing so that he could file a timely

notice of appeal. This Court dismissed the appeal as untimely. 2 With respect to

Wilson’s claims regarding his counsel, the Court emphasized that he had not

explained “why he waited almost six years to file this notice of appeal” and that he

had not taken any other action after this Court dismissed his appeal from the denial

of his motion for postconviction relief in 2011.3

(4) The Superior Court docket reflects that Wilson has not made any

additional filings in that court since this Court’s dismissal of his 2016 appeal. On

February 20, 2020, Wilson filed a notice of appeal from the Superior Court’s March

14, 2011 denial of his motion for postconviction relief. As this Court indicated in

its dismissal of Wilson’s previous appeal from the same Superior Court order, a

timely notice of appeal should have been filed on or before April 13, 2011. 4 This

1 Wilson v. State, 2011 WL 1900446 (Del. May 16, 2011). 2 Wilson v. State, 2016 WL 806291 (Del. Mar. 1, 2016). 3 Id. at *1. 4 Wilson, 2011 WL 1900446, at *1.

2 Court lacks jurisdiction to consider an appeal when the notice of appeal is not timely

filed, unless the appellant can demonstrate that the failure to file a timely notice of

appeal is attributable to court-related personnel.5

(5) On February 20, 2020, the Chief Deputy Clerk issued a notice directing

Wilson to show cause why this appeal should not be dismissed as untimely filed. In

response to the notice to show cause, Wilson states that he directed his counsel to

file a timely direct appeal, but that his counsel “erroneously advised and informed

the defendant that he had no ability to appeal, and instead filed a motion for

modification of sentence on [Wilson’s] behalf pursuant to Superior Court Criminal

Rule 35(b).” Relying on the United States Supreme Court’s decision in Garza v.

Idaho, 6 he argues that, in light of his counsel’s alleged error, he should be given an

opportunity to bring an appeal.

(6) In Roe v. Flores-Ortega, 7 the United States Supreme Court held that

“when an attorney’s deficient performance costs a defendant an appeal that the

defendant would have otherwise pursued, prejudice to the defendant should be

presumed [for the purpose of establishing a claim of ineffective assistance of

counsel] ‘with no further showing from the defendant of the merits of his underlying

5 Bey v. State, 402 A.2d 362, 363 (Del. 1979). 6 139 S. Ct. 738 (2019). 7 528 U.S. 470 (2000).

3 claims.’” 8 In Garza, the Court held that the presumption of prejudice applies “even

when the defendant has, in the course of pleading guilty, signed what is often called

an ‘appeal waiver’—that is, an agreement forgoing certain, but not all, possible

appellate claims.” 9

(7) The appeal is dismissed as untimely. Garza does not stand for the

proposition that this Court must consider an untimely appeal. To the extent that

Wilson is claiming that, following Garza, he had a viable claim for postconviction

relief based on ineffective assistance of counsel, he should have presented that claim

to the Superior Court by filing a timely, procedurally proper motion for

postconviction relief. 10

8 Garza, 139 S. Ct. at 742 (summarizing and quoting Flores-Ortega, 528 U.S. at 484). 9 Id. 10 See DEL. SUPER. CT. CRIM. R. 61(i) (establishing procedural bars to postconviction relief, including that a motion for postconviction relief that asserts a newly recognized, retroactively applicable right as grounds for relief must be filed within one year after the right is first recognized). See also DEL. SUPR. CT. R. 8 (providing that “[o]nly questions fairly presented to the trial court may be presented for review”). We note, without deciding the issue, that several federal courts have held that Garza did not establish a newly recognized, retroactive right. E.g., United States v. Price, 2020 WL 516357, at *3 n.1 (W.D. Pa. Jan. 23, 2020); Espinal v. United States, 2020 WL 264918, at *3-4 (E.D.N.Y. Jan. 17, 2020); Macklin v. Dowling, 2019 WL 4727070, at *3 (W.D. Okla. Aug. 30, 2019).

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

that the appeal is DISMISSED.

BY THE COURT:

/s/ Tamika R. Montgomery-Reeves Justice