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Shelley v. State

Supreme Court of Delaware

January 7, 2020

LEROY SHELLEY, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: October 21, 2019

          Court Below-Superior Court of the State of Delaware Cr. ID 9804001318 (N)

          Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

          ORDER

          Karen L. Valihura, Justice

         Upon consideration of the appellant's opening brief, the State's motion to affirm, and the record below, it appears to the Court that:

         (1) The appellant, Leroy Shelley, appeals from the Superior Court's July 31, 2019 order denying his motion to vacate his sentence. The State has filed a motion to affirm the judgment below on the ground that it is manifest on the face of Shelley's opening brief that his appeal is without merit. We agree and affirm.

         (2) In 2007, a Superior Court jury found Shelley guilty of two counts of first degree robbery, two counts of second degree kidnapping, two counts of possession of a firearm during the commission of a felony ("PFDCF"), and one count of second degree conspiracy. Following a presentence investigation, the Superior Court sentenced Shelley to an aggregate of twenty-four years, six months of Level V incarceration, suspended after eighteen years, six months for eighteen months of Level III probation. Shelley did not appeal his convictions or sentence.

         (3) Shelley subsequently filed several motions challenging his conviction and sentence, including three motions for postconviction relief, [1] a petition for writ of habeas corpus, [2] and two motions filed under Superior Court Rule 35 ("Rule 35"), [3] all of which were denied. In July 2019, Shelley again moved to vacate his sentence under Rule 35, claiming that the Superior Court trial judge had not advised him of his right to appeal as required by Superior Court Criminal Rule 32(a)(2). Shelley asked the court to vacate his sentence and re-sentence him, in order to permit Shelley the opportunity to file a direct appeal. Because Shelley's sentence did not exceed the statutory limits or violate the Double Jeopardy Clause, the Superior Court treated the motion as one alleging that Shelley's sentence had been imposed in an illegal manner under Rule 35(a) and denied it as untimely.[4] Shelley did not appeal.

         (4) On July 26, 2019, Shelley filed another motion to vacate his sentence under Rule 35, arguing that the sentencing judge's failure to inform him of his right to appeal constituted "extraordinary circumstances" sufficient to excuse the untimely filing of the motion. The Superior Court concluded that the "extraordinary circumstances" exception applies only to a motion to modify a sentence, which Shelley's motion was not. Accordingly, it denied the motion. This appeal followed.

         (5) On appeal, Shelley argues: (i) that the trial court's failure to inform him of his right to appeal constituted plain error, and (ii) that the Superior Court abused its discretion in denying his Rule 35 motion because the trial court's failure to advise him of his right to appeal constituted court error and therefore excused his untimely request for relief.

         (6) As a preliminary matter, because Shelley did not present these arguments to the Superior Court, this Court will not ordinarily entertain them on appeal.[5] In any event, Shelley's Rule 35 motion is time-barred and Shelley has not demonstrated extraordinary circumstances to excuse the untimely filing. "Extraordinary circumstances" are circumstances that "specifically justify the delay," are "entirely beyond a petitioner's control," and "have prevented the applicant from seeking the remedy on a timely basis."[6] At a minimum, Shelley could have raised the trial court's alleged failure to advise him of his right to appeal[7] in postconviction proceedings.[8] More importantly, the record belies Shelley's substantive claim that he was unaware of his right to appeal. The transcript of the sentencing hearing reflects that the trial judge referenced the appeals process[9] and that Shelley carefully preserved issues, specifically for the purpose of appeal.[10]

         NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.

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