Opinion
I.D.No. 971-101-2518
Submitted: June 29, 2001
Decided: September 28, 2001
ORDER and OPINION
On January 22, 1998, Cecilio N. Vergara ("Defendant" or "Appellant") entered a plea agreement in the Family Court of New Castle County in which Defendant plead guilty to Assault Third Degree in violation of 11 Del. C. § 611. Appellant was sentenced by the Family Court to one year incarceration Level V which was immediately suspended to one year supervised probation Level III.
See "Guilty Plea (Adult)" [1] (January 22, 1998); "Adult Disposition" [1-3] (January 22, 1998); "Progress Report" [1] (January 25, 1999).
See footnote 1.
On July 11, 2000, Defendant filed a motion for post conviction relief on the basis that his January 22, 1998, guilty plea was made without a "knowing, intelligent, and voluntary waiver of [Defendant's] Sixth Amendment rights to counsel and to a jury trial." After both sides had been ordered to submit supporting legal memoranda, the Family Court held a hearing on August 9, 2000. On December 22, 2000, the Family Court denied Appellant's motion for post-conviction relief. Defendant then filed a notice of appeal 21 days later on January 12, 2001.
"Letter Decision and Order" Chapman, J. 1 (December 22, 2000).
Id.
Defendant's appeal is a collateral attack on his conviction. Therefore, the standard of review applicable to the appeal at bar is governed by an abuse of discretion, and it is a review of the record found below. On May 18, 2001, the State filed a motion to dismiss Defendant's appeal alleging that the appeal was untimely and jurisdictionally barred by Superior Court Rules. The State relies on Superior Court Criminal Rule 39(g) which states: Collateral proceedings: A person who claims that a final conviction in another court is subject to collateral attack must first apply for relief in the other court. An appeal may be taken to [the Superior Court] within 15 days after the [Family Court] has entered a final order on the application. An appeal in a collateral proceeding shall be on the record. The State, citing Carr v. State, further contends that time is a jurisdictional requirement leaving a court without jurisdiction if an appeal is not filed within the prescribed time period. Rule 39(g) readily seems to support that Appellant should have appealed the Family Court's final disposition of his collateral attack within 15 days or on or before January 6, 2001, and not on January 21, 2001. However, Rule 39(g) is not the only authority speaking to this matter.
See Super.Ct.Crim.R. 39(g).
Del.Supr., 554 A.2d 778, 779 (1988) cert. denied, 493 U.S. 829 (1989) (citing Scott v. Draper, Del.Supr., 371 A.2d 1073, 1074 (1977)).
Superior Court Criminal Rule 39(a) states in relevant part: "Time. All appeals to Superior Court shall be taken within 15 days from the date of sentence, unless otherwise provided by statute." It is important to note that Rule 39(a) applies to "all appeals." But, all appeals are not inclusive of collateral attacks. Rather, Rule 39(a)'s "unless otherwise provided by statute" clause applies only to appealed sentences. Appellant dismisses Rule 39's 15 day appeal timeframe and asserts the applicability of 10 Del. C. § 1051(b). It states that a defendant may appeal any:
(Emphasis added).
order, ruling, decision[,] or judgment of the [Family Court] in any criminal proceeding, [and] there shall be the right of appeal in the first instance as provided by law to the Superior Court in the same county in which the case was adjudicated by the [Family Court]. Additionally, Appellant brings to the Court's attention 10 Del. C. § 1051(c) which states in relevant part "[a]n appeal shall be taken within 30 days from the date of disposition, or within such time as provided by law." Thus, the Court is faced with a Superior Court Criminal Rule and a statute that are in apparent conflict. The issue is which one will prevail.
Title 10 Del. C. § 561(a) authorizes the Superior Court to:
[a]dopt and promulgate general rules which prescribe, establish[,] and regulate the form, issuance[,] and return of process and writs, the form and system of pleading, and all other practice and procedure with respect to the commencement, trial, hearing[,] and determination of civil actions in the Superior Court.
(Emphasis added).
Section 561(a) continues in stating that Superior Court rules "supersede all statutory provisions in conflict or inconsistent therewith." Title 10 Del. C. § 561(d) addresses conflicts between Superior Court civil rules and statutes by resolving in favor of the court rule. Section 561(d) further states that:
(Emphasis added).
[n]othing in this Code, anything therein to the contrary notwithstanding, shall in any way limit, supersede[,] or repeal any rule heretofore promulgated governing practice or procedure in civil actions in the Superior Court.
As emphasized, Section 561 applies only to civil rules promulgated by the Superior Court, it does not address criminal rules of procedure. In fact, Title 10 Del. C. § 561(e) states that "the phrase `civil actions in the Superior Court' includes proceedings of every kind or character within the jurisdiction of that Court except criminal proceedings." Therefore, Appellant is correct in determining that Section 561 does not apply to criminal proceedings. While the Appellant is correct regarding civil procedure, the State brings to the Court's attention 11 Del. C. § 5122 which states: [a]ny inconsistency or conflict between any rule of court promulgated under the authority of § 5121 of this title, or prior law, and any of the provisions of this code or other statutes of this state, dealing with practice and procedure in criminal actions in the Superior Court, shall be resolved in favor of such rule of court.
(Emphasis added).
(Emphasis added).
This statute is dispositive in determining the resolution of the case at bar. Here, the case at bar presents the issue of whether a Superior Court criminal rule trumps a statute regarding criminal procedure. Clearly, Section 5122 permits, indeed encourages, primacy of Superior Court criminal rules over those rules that may be found in statute. As such, the Court must hold, at the direction of Section 5122, Superior Court Criminal Rule 39(a) and (g) supreme over 10 Del. C. § 1051(c).
The parties at bar also discuss the case Boyce v. State. In Boyce, the defendant plead guilty to violating probation in Family Court on September 28, 1998. Later, on October 28, 1998, the defendant filed an appeal of his Family Court conviction with the Superior Court. The Court ultimately dismissed the defendant's appeal for failure to prosecute and cause delivery to the Superior Court the official Family Court record. The Court acknowledges, however, that "[e]ven absent the Family Court record, it is clear that the appeal is time barred[,] and this Court therefore lacks jurisdiction to hear the matter." The Court held that if the Defendant fails to perfect his appeal within the timeframes mandated by statute or court rule, a jurisdictional impediment materializes that cannot be excused barring unusual circumstances which are beyond the fault of the appellant. With parallels to the case at bar, Boyce did not appeal within 15 days to the Superior Court the matter disposed of by Family Court. The Defendant's appeal is time barred having been filed more than 15 days after the Family Court decided the final disposition of Defendant's collateral attack via a Rule 61 petition for post-conviction relief. This Court is without jurisdiction to entertain its merits. For the foregoing reasons, Defendant's appeal for post conviction relief is DENIED.
Del.Super., Cr.A. No.: 9609002441, Gebelein, J. (January 6, 2000) (subject to revision and withdrawal).
Id.
IT IS SO ORDERED.