            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    DINO ANDERSON,                                  §
                                                    §
          Defendant Below,                          §   No. 259, 2019
          Appellant,                                §
                                                    §   Court Below: Superior Court
          v.                                        §   of the State of Delaware
                                                    §
    STATE OF DELAWARE,                              §   Cr. I.D. No. 1808010306 (N)
                                                    §
          Plaintiff Below,                          §
          Appellee.                                 §
                                                    §

                                Submitted: July 26, 2019
                                Decided: August 6, 2019

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                        ORDER

         After consideration of the notice to show cause and the parties’ and counsel’s

responses, it appears to the Court that:

         (1)     On June 17, 2019, the appellant, Dino Anderson, filed a pro se notice

of appeal from a Superior Court sentencing order imposed on May 15, 2019. Under

Supreme Court Rule 6, a timely notice of appeal should have been filed on or before

June 14, 2019.1 A notice of appeal must be timely filed to invoke the Court’s

appellate jurisdiction.2



1
    DEL. SUPR. CT. R. 6(a)(iii).
2
    Carr v. State, 554 A.2d 778, 779 (Del. 1989).
       (2)    The Senior Court Clerk issued a notice to Anderson directing him to

show cause why the appeal should not be dismissed as untimely filed. In his

response, Anderson stated that his trial counsel had advised him that he “could not

file an appeal for my reasons and opinions.” In light of the obligations of trial

counsel under Supreme Court Rule 26, the Court requested a response from

Anderson’s trial counsel. In the response, trial counsel indicated that he had advised

Anderson of the right to appeal and he acknowledged his continuing obligation under

Rule 26(a), but he asserted that he had complied with that obligation because he

“was unaware of any desire, on the part of the client, to file an appeal after having

been advised, by counsel, of the futility of such action.”3

       (3)    At the Court’s request, the State also filed a response. The State

indicates that the response of Anderson’s trial counsel suggests that trial counsel

believed that Anderson had been convicted only of misdemeanor charges, although

Anderson in fact was convicted of the felony charge of Carrying a Concealed Deadly

Weapon.4      The State also acknowledges that trial counsel’s account of his

communication with Anderson after trial is ambiguous concerning “whether

Anderson told his counsel to file an appeal, and whether Anderson was aware that



3
  Response to Appellant’s Response to Notice to Show Cause, Docket Entry No. 13, at 2
(hereinafter, “Trial Counsel Response”).
4
  State’s Answer to Notice to Show Cause, Docket Entry No. 17, at 3 (hereinafter, “State
Response”). See also Trial Counsel Response, affidavit at 6-7 (listing jury verdicts on charges).


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he could instruct his counsel to appeal even though counsel believed the appeal

lacked any merit. The record suggests, however, that there may have been some

miscommunication between Anderson and counsel regarding Anderson’s desire to

appeal.”5 The State therefore suggests that the matter be remanded to the Superior

Court with directions to vacate and reimpose Anderson’s sentence, in order to allow

Anderson, 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.6 Upon remand, the Superior Court should resentence Anderson to

permit his counsel the opportunity to file a timely appeal.

         NOW, THEREFORE, IT IS ORDERED that the matter is REMANDED to

the Superior Court for further action in accordance with this order. Jurisdiction is

not retained. Any docketing fee paid to this Court by the appellant in conjunction

with this appeal may be applied to a future direct appeal in this criminal action

number.

                                            BY THE COURT:


                                            /s/ James T. Vaughn, Jr.
                                            Justice




5
    State Response at 5.
6
    Amaro v. State, 2013 WL 1087644 (Del. Mar. 13, 2013).


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