Opinion
No. 27, 2003.
Submitted: April 3, 2003.
Decided: May 20, 2003.
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr.A. No. IN02-04-0272 Cr. ID 0203023497
Before VEASEY, Chief Justice, BERGER, and STEELE, Justices.
Appeal dismissed.
Unpublished opinion is below.
CHARLES ALLISON, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 27, 2003. Supreme Court of Delaware. Submitted: April 3, 2003. Decided: May 20, 2003.
ORDER
This 20th day of May 2003, upon consideration of the opening brief and the State's motion to affirm, it appears to the Court that:
(1) The defendant-appellant, Charles Allison, pled guilty in May 2002 to one count of possession of burglar tools. The Superior Court sentenced him to two years at Level V imprisonment, suspended after one year for one year of home confinement and probation. Thereafter, Allison filed two motions seeking modification of his sentence, which the Superior Court denied on January 3, 2003. This appeal followed.
(2) Allison filed his opening brief on appeal on April 2, 2003. The opening brief does not raise any challenge to the Superior Court's January 3, 2003 order denying Allison's sentence modification request. Instead, the opening brief is limited to argument challenging the Superior Court's apparent dismissal of a petition for postconviction relief. To the extent Allison has failed to raise any argument in his opening brief concerning the Superior Court's January 2003 order, he has waived his right to challenge the Superior Court's judgment. Accordingly, the judgment must be affirmed.
See Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).
(3) On April 4, 2003, the day after the State filed its motion to affirm, Allison filed a document entitled "Motion for Addendum of Appeal." The motion appears to be Allison's attempt to amend this appeal to permit him to appeal from an order of the Superior Court dated March 19, 2003. The Superior Court's March 2003 order dismissed a petition for postconviction relief, which Allison filed in Superior Court after he filed his notice of appeal in this Court. The Superior Court dismissed Allison's petition for postconviction relief on the ground that it lacked jurisdiction to rule on the petition while this appeal was pending. To the extent Allison seeks to challenge this dismissal, he has failed to properly perfect an appeal from the Superior Court's judgment. Allison may re-file his petition for postconviction relief in the Superior Court once the mandate has issued in this appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.