Summary
remanding for resentencing as suggested by the State where it was unclear if the defendant had instructed his counsel to file an appeal after he pleaded guilty
Summary of this case from Graves v. StateOpinion
No. 63, 2013
03-13-2013
ERIC AMARO, Defendant Appellant, v. STATE OF DELAWARE, Plaintiff Appellee.
Court —Superior Court
of the State of Delaware,
in and for Sussex County
Cr. ID 1207002417
Before STEELE, Chief Justice, JACOBS, and RIDGELY, Justices.
ORDER
This 13th day of March 2013, it appears to the Court that:
(1) On February 13, 2013, the Court received appellant Eric Amaro's pro se notice of appeal from the Superior Court's sentencing order imposed on January 11, 2013. Pursuant to Supreme Court Rule 6, a timely notice of appeal should have been filed on or before February 11, 2013.
Del. Supr. Ct. R. 6(a)(ii).
(2) The Clerk issued separate notices to Amaro and to his trial counsel of record directing each to show cause why the appeal should not be dismissed as untimely filed. Amaro's counsel filed a response to the notice to show cause on February 25, 2013, which acknowledges that Amaro's pro se notice of appeal was not timely and states that counsel did not file a timely notice of appeal because there was no basis for an appeal. Counsel's response does not indicate whether Amaro instructed him to file a notice of appeal on his behalf.
(3) The State has filed a reply to counsel's response. The State contends that the record is ambiguous regarding whether Amaro instructed his counsel to file an appeal on his behalf, notwithstanding counsel's opinion regarding the relative merits of an appeal. The State indicates that it does not object to remanding this matter to the Superior Court for resentencing in order to allow Amaro, with counsel's assistance, the opportunity to file a timely notice of appeal.
(4) We agree that the proper course of action is to remand this matter to the Superior Court. Upon remand, the Superior Court should resentence Amaro to permit his counsel the opportunity to file a timely appeal. Resentencing shall take place upon notice to the parties as soon as practicable but no later than 30 days from the date of this order.
NOW, THEREFORE, IT IS HEREBY ORDERED that the within matter is REMANDED to the Superior Court for further action in accordance with this order. Jurisdiction is not retained.
BY THE COURT:
Henry duPont Ridgely
Justice