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Gainer v. State

Superior Court of Delaware

October 23, 2019

JASON J. GAINER, Defendant Below, Appellant
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: September 10, 2019

         Upon Appellant's Request to Reissue Order DENIED

          Benjamin Warshaw, Esquire and Jerome M. Capone, Esquire, Office of Defense Services, 14 The Circle, Second Floor, Georgetown, DE 19947, Attorneys for Appellant.

          Kristin M. Potter, Esquire, Department of Justice, 114 East Market Street, Georgetown, DE 19947, Attorney for Appellee.

          ORDER

          CRAIG A.KARSNITZ JUDGE

         I. BACKGROUND

         On October 10, 2018, Appellant was found guilty in the Court of Common Pleas ("CCP") of two misdemeanors: resisting arrest and criminal contempt of a Protection from Abuse ("PFA") Order. For resisting arrest, he was sentenced to one (1) year of incarceration at Level 5, with credit for thirty-seven (37) days served, and the balance was suspended for nine (9) months on Level 3 probation. For criminal contempt of the PFA, he was sentenced to one (1) year of incarceration at Level 5, and the balance was suspended for nine (9) months on Level 3 probation. The probations were to run concurrently.

         On November 7, 2018, Appellant filed a Notice of Appeal with this Court. On April 30, 2019, Appellant's counsel filed Appellant's Brief under Superior Court Rule 61(e)(7) and on June 18, 2019, the State filed its Answering Brief. On July 9, 2019, 1 entered an Order affirming the judgment of CCP.

         After finishing his incarceration, Appellant was placed on Level 3 probation, which he completed on July 16, 2019 - one week after my Order was entered.

         On August 15, 2019, Appellant's counsel informed me that he had failed to notify Appellant of his right to appeal my Order to the Delaware Supreme Court. He requested that I reissue my Order, so that the later date of the Order would allow Appellant to timely file an appeal with the Supreme Court.[1] A notice of appeal must be timely filed to invoke the Supreme Court's appellate jurisdiction.[2] The State opposes this request and asserts that I lack jurisdiction because Appellant had completed his full sentence, including probation.

         On August 21, 2019, I held a conference in chambers and requested that the parties submit support for their respective positions; letters from counsel were submitted on September 10, 2019.

         II. DISCUSSION

         Two cases decided by the Delaware Supreme Court on the same day at first blush appear to permit reissuance of my Order, which would effectively resentence Appellant. In Anderson v. State[3] and Chavis v. State[4] the Supreme Court remanded the cases to the Superior Court with instructions that, upon remand, the Superior Court resentence appellants to permit their counsel the opportunity to file timely appeals. In Anderson, appellant, as a self-represented litigant, filed an untimely appeal and there was, at a minimum, a miscommunication between appellant and trial counsel regarding the filing of the appeal. In Chavis, there was an error by trial counsel calculating of the thirty-day period which resulted in the untimely filing. After the Supreme Court issued a notice to appellants' counsel to show cause why the appeals should not be dismissed as untimely filed, the Court requested responses from counsel regarding compliance with their continuing obligations to, and representation of, appellants in direct appeals of their criminal convictions.[5] The Court also requested responses from the State. In both cases, the State asked that the cases be remanded to the Superior Court with directions to vacate and reimpose the sentences, in order to allow appellants, with counsels' assistance, to file timely notices of appeal. The Court agreed and remanded both cases for resentencing.[6]

         In these cases, the State did not object to - indeed, it requested - the remand and resentencing. However, in cases where the State has properly objected on jurisdictional grounds, there is a different result. For example, in DeJohn v. State, 2019 WL 3945644, at *1 (Del. Aug, 20, 2019), appellant filed a notice of appeal from the Superior Court's order denying his motion for modification of sentence. While the appeal was pending, appellant completed his sentence, including the period of probation, and was no longer subject to supervision. The Supreme Court ordered appellant to show cause why his appeal ...


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