Opinion
No. 418, 2002
Submitted: October 21, 2002
Decided: November 14, 2002
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr. ID 86002568DI
ORDER
This fourteenth day of November 2002, upon consideration of the appellant's motion to remand and the State's response thereto, it appears to the Court that:
(1) The defendant-appellant, Sean Boyer, filed the present motion requesting this Court to remand his case to the Superior Court to reconstruct the record of Boyer's 1995 sentencing hearing. Boyer asserts that a record of the sentencing proceedings is necessary to pursue this appeal from the Superior Court's denial of his motion for modification of sentence, but a transcript of the sentencing proceedings cannot be prepared because the court reporter's tape has been lost or destroyed. In its response to Boyer's motion, the State asserts that Boyer has known for at least two years that the court reporter's tape could not be located, and he made no effort in those two years to have the record of the sentencing reconstructed. The State therefore argues that Boyer's appeal should proceed on the existing record.
(2) The circumstances of Boyer's case are unusual. Boyer pled guilty in 1986 to one count of second degree burglary. He appeared for sentencing in December 1986 but the proceeding was continued. Thereafter, Boyer was arrested for violating parole in Pennsylvania. Boyer was not sentenced on the second degree burglary charge until October 1995. The Superior Court sentenced Boyer to serve six years at Level V incarceration followed by one year at Level IV and another year at Level III. After his sentencing, Boyer was returned to Pennsylvania to serve out a sentence there. Boyer never appealed from his 1995 sentence. In 1999, he filed a pro se motion for postconviction relief, which the Superior Court denied as procedurally barred. Boyer completed his Pennsylvania sentence in 2002 and was returned to Delaware to begin serving his 1995 sentence. In March
2002, he filed a motion for modification of sentence, which was denied.
(3) On appeal, Boyer indicates that two of the issues he intends to raise include: (i) the State's nine-year delay in sentencing him; and (ii) due process violations arising from alleged statements made by the prosecutor at the sentencing hearing depicting Boyer's crime as "attempted rape." Boyer claims he cannot pursue his claims without an adequate record of the sentencing.
(4) The Court is concerned that Boyer offers no explanation for his delay in seeking to reconstruct the sentencing record. Nonetheless, after careful consideration of the parties' respective positions, the Court has concluded, in the interest of justice, that this matter should be remanded to the Superior Court with instructions to reconstruct the record of Boyer's sentencing to the extent it is possible to do so.
Supr.Ct.R. 9(g); Caldwell v. State, 780 A.2d 1037, 1057 (Del. 2001); Snowden v. State, 672 A.2d 1017, 1026 (Del. 1996).
NOW, THEREFORE, IT IS ORDERED that the motion to remand is GRANTED. This matter is remanded for further proceedings consistent with this order. The Superior Court should submit its report following remand within 60 days. Jurisdiction is retained.
Supr.Ct.R. 19(c).