Opinion
ID No. 0710001779.
Submitted: July 9, 2009.
Decided: August 31, 2009.
Upon Defendant's Motion for Postconviction Relief. DENIED AS MOOT.
Kevin M. Carroll, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Allen Foote, Correctional Institution, Smyrna, Delaware, pro se.
ORDER
This 31st day of August, 2009, upon consideration of Defendant's motion for postconviction relief, it appears to the Court that:
1) On April 10, 2008, Defendant pled guilty to one count of first degree assault and one count of possession of a firearm during the commission of a felony. On September 18, 2008, Defendant was sentenced by this Court. For the assault conviction, Defendant was sentenced to twenty-five years at Level 5, suspended after ten years, for two years at Level 4 work release. On the firearm charge, Defendant was sentenced to ten years at Level 5. On October 1, 2008, Defendant moved to modify his sentence. That application was denied. On January 13, 2009, Defendant moved for postconviction relief, alleging that his counsel was constitutionally ineffective because she failed to file a direct appeal of his sentence.
2) After sentencing, Defendant asked his defense counsel to file a direct appeal of the sentence based on the severity of the sentence imposed. Counsel advised Defendant that "[y]our sentence is not illegal so there are no grounds to appeal [the Court's] sentencing order." Defendant then asked his counsel to withdraw his guilty plea. Counsel advised Defendant that "you may not lawfully withdraw a plea on the grounds that you are displeased with the sentence." Accordingly, Defendant's counsel did not file a direct appeal of Defendant's sentence, nor did Defendant's counsel file a motion to withdraw Defendant's guilty plea.
Defense Counsel's Response Affidavit to Defendant's Motion for Postconviction Relief at Ex. E.
Id.
3) Under Supreme Court Rule 6(a)(ii), a defendant must file a criminal appeal "[w]ithin 30 days after a sentence is imposed in a direct appeal of a criminal conviction." Thus, a direct appeal of Defendant's sentence was procedurally barred if not filed before October 18, 2008.
Supr. Ct. R. 6(a)(ii).
4) The Delaware Supreme Court has held:
Under well-settled Delaware law and the Rules of this Court, it is beyond dispute that a defendant's trial attorney has a duty to take appropriate steps to perfect a direct appeal if the defendant wants to appeal. The attorney is required to file the appeal whether or not the attorney believes the appeal to be meritorious. In the event the attorney finds that the appeal clearly presents only frivolous claims, the attorney may file a brief under Supreme Court Rule 26(c).
Eley v. State, 748 A.2d 407, 2000 WL 275593, at *1 (Del. Feb. 29, 2000).
Thus, "where a criminal defendant's trial attorney, against the wishes of his client, fails to perfect a direct appeal, the attorney's representation is ineffective." In such an instance, the proper remedy is for the Superior Court to "resentenc[e] to renew the time to file a direct appeal."
Id. at *2.
Id.
5) Accordingly, the Court schedules a re-sentencing on September 24, 2009, at 9:30 a.m. at which time the Court will "withdraw" the September 18, 2008 sentencing and re-sentence Defendant. Defendant's thirty day period to file a direct appeal of his sentence will not begin to run until he is re-sentenced. The State and Defense counsel must be present at this hearing.
6) For the reasons stated, Defendant's Motion for Postconviction Relief is DENIED AS MOOT.
IT IS SO ORDERED.