IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE, )
)
v. ) Case No. 1603002077
)
HARMON CAREY, )
)
Defendant )
Julia Mayer, Esquire Harmon Carey
Deputy Attorney General 2018 Silverside Road
820 N. Freneh Street, 7th Floor Wilmington, DE 19810
Wilmington, DE 19801 Defendant

Attorneyfor the State of Delaware

LETTER OPINION AND ORDER

l. The defendant, Harmon Carey (hereinafter the “Defendant”), was charged with
several violations of Wilmington Ordinances. On June 27, 2017, the Defendant was found guilty
in the Justice of the Peace Court No. 20. The Defendant appealed to this Court on July 6, 2017.
The State of Delaware filed the instant Motion to Dismiss for lack of subject matter jurisdiction,
argling the Defendant failed to flle the instant appeal within the statutory period. The Defendant
argues his failure to comply with the deadline was due to Court personnel failing to provide the
Defendant with notice of his appeal rights. On August 17, 2017, a hearing was convened on the
Motion, with the Court reserving decision. This is the Court’s decision and Order on the State’s
Motion to Dismiss.

2. The instant appeal is governed by Title ll, Section 5917 of the Delaware Code,
which States the “appeal shall be taken and bond given within 5 days from the time of

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conviction. Pursuant to Court of Common Pleas Criminal Rule 45, the computation of a time

period under seven days excludes weekends and legal holidays. Therefore, the Defendant’s
appeal must have been filed by close of business on July 5, 2017. However, the appeal was not
filed until July 6, 2017.

3. The Defendant argues he should not be held responsible for the delay because the
magistrate did not inform him of his appeal rights, he did not receive a written notice of his
appeal rights, and because the prosecuting attorney did not mention any appeal rights. The State
contends the Defendant should be aware of the deadline for appeals due to his extensive history
of similar violations, as well as a prior case in which this Court rejected an untimely appeal filed
by the Defendant.l In the prior matter, the Defendant raised the same argument, namely, “Justice
of the Peace Court No. 20 failed to adequately advise him about the appeals process.”2 The
Court presumed the Defendant did not receive the Jurisdictional Form traditionally supplied to
defendants to advise them of their appeal rights, yet ultimately concluded the fault belonged
solely to the Defendant. The Court reasoned the defendant had “previously been party to
convictions of Wilmington City Code violations and signed Jurisdictional Forms in those cases
indicating that he understood the 5-day period following sentencing in which to appeal.”3 The
Defendant argues he does not remember the prior case and should not be penalized for his lack
of recollection.

4. Delaware courts have consistently found pro se litigants are required to comply
with time limitations for filing appeals, and “[a]bsent a showing that an untimely filing is
attributable to court-related personnel, a pro se litigant's appeal must fail.”4 Turning to the

matter sub judice, the Court will presume the Defendant did not receive any notice of his appeal

 

l See State v. Carey, 2008 WL 11343064 (Del. Com. Pl. Oct. 20, 2008).
2 *
Id. at l.
3 1d.
4 1a at *3.

rights from Court personnel or the State of Delaware. The question, therefore, is whether an
absence of such information constitutes fault attributable to court-related personnel.

5. The Superior Court, in reiterating a 1942 opinion from the Delaware Supreme
Court, held “even an omission by a clerk does not relieve a self-represented party of its
obligation to abide by the statutory requirements to invoke a court's jurisdiction[.]”5 The
relevant case law focuses primarily upon a litigant relying on misinformation from the Court,
rather than from lack of information, because the “exception was designed to protect a litigant
who relies in good faith on the reasonable instructions of the Court[.]”‘5

6. The critical component for excusing the untimeliness of an appeal is adequate
diligence on the part of the Defendant. Here, the Defendant did not act diligently in determining
the deadline for his appeal. The deadline for his appeal is set by statute, which is readily
available in any law library, and therefore easily discoverable with proper diligence, particularly
in light of the Defendant’s numerous experiences with proceedings of this nature. Therefore, the
Court finds the Defendant did not act diligently in perfecting his appeal and the delay was not
attributable to court-related personnel providing incorrect information.

7. AND NOW, this 18th day of August, 2017, upon consideration of the State’s
Motion to Dismiss, and all arguments on the Motion,

8. IT IS HEREBY ORDERED that the Motion is GRANTED.

IT IS SO ORDERED.

 

cc: Tina Smith, Judicial Case Manager

 

5 Biddles Construction, LLC v. Seeley, 2016 WL 6126251, at *2 (Del. Super. Oct. 19, 2016).
6 Stalana, LLC v. Halmagyi, 2017 WL 384686, at *4 (Del. Com. Pl. Jan. 27, 2017).

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