IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JASON J. GAINER, : Def. ID# 1805014537

Defendant Below,
Appellant

V.
STATE OF DELAWARE,
Plaintiff Below,

Appellee.

Submitted: September 10, 2019
Decided: October 23, 2019

Upon Appellant’s Request to Reissue Order
DENIED
ORDER
Benjamin Warshaw, Esquire and Jerome M. Capone, Esquire, Office of Defense
Services, 14 The Circle, Second Floor, Georgetown, DE 19947, Attorneys for

Appellant.

Kristin M. Potter, Esquire, Department of Justice, 114 East Market Street,
Georgetown, DE 19947, Attorney for Appellee.

KARSNITZ, J.
I. BACKGROUND

On October 10, 2018, Appellant was found guilty in the Court of Common
Pleas (“CCP”) of two misdemeanors: resisting arrest and criminal contempt of a
Protection from Abuse (“PFA”) Order. For resisting arrest, he was sentenced to one
(1) year of incarceration at Level 5, with credit for thirty-seven (37) days served, and
the balance was suspended for nine (9) months on Level 3 probation. For criminal
contempt of the PFA, he was sentenced to one (1) year of incarceration at Level 5,
and the balance was suspended for nine (9) months on Level 3 probation. The
probations were to run concurrently.

On November 7, 2018, Appellant filed a Notice of Appeal with this Court.
On April 30, 2019, Appellant’s counsel filed Appellant’s Brief under Superior Court
Rule 61(e)(7) and on June 18, 2019, the State filed its Answering Brief. On July 9,
2019, I entered an Order affirming the judgment of CCP.

After finishing his incarceration, Appellant was placed on Level 3 probation,
which he completed on July 16, 2019 — one week after my Order was entered.

On August 15, 2019, Appellant’s counsel informed me that he had failed to
notify Appellant of his right to appeal my Order to the Delaware Supreme Court.
He requested that I reissue my Order, so that the later date of the Order would allow

Appellant to timely file an appeal with the Supreme Court.' A notice of appeal must

 

'Supr. Ct. R. 6(a)(iii) requires that a notice of appeal be filed in the office of the Clerk of the
be timely filed to invoke the Supreme Court’s appellate jurisdiction.2 The State
opposes this request and asserts that I lack jurisdiction because Appellant had
completed his full sentence, including probation.

On August 21, 2019, I held a conference in chambers and requested that the
parties submit support for their respective positions; letters from counsel were

submitted on September 10, 2019.

II. DISCUSSION

Two cases decided by the Delaware Supreme Court on the same day at first
blush appear to permit reissuance of my Order, which would effectively resentence
Appellant. In Anderson v. State* and Chavis v. State’ the Supreme Court remanded
the cases to the Superior Court with instructions that, upon remand, the Superior
Court resentence appellants to permit their counsel the opportunity to file timely
appeals. In Anderson, appellant, as a self-represented litigant, filed an untimely
appeal and there was, at a minimum, a miscommunication between appellant and
trial counsel regarding the filing of the appeal. In Chavis, there was an error by trial

counsel calculating of the thirty-day period which resulted in the untimely filing.

 

Delaware Supreme Court within thirty (30) days after a sentence is imposed in a direct appeal of
a criminal conviction.

* Carr v. State, 554 A.2d 778, at 779 (Del. 1989). (“[t]ime is a jurisdictional requirement ...
when an appeal is not filed within the statutory time period the [c]ourt is without jurisdiction to
hear the appeal.’’)

42019 WL 37144797, at *1 (Del. Aug. 6, 2019).

42019 WL 3564041, at *1 (Del Aug. 6, 2019).
After the Supreme Court issued a notice to appellants’ counsel to show cause why
the appeals should not be dismissed as untimely filed, the Court requested responses
from counsel regarding compliance with their continuing obligations to, and
representation of, appellants in direct appeals of their criminal convictions.> The
Court also requested responses from the State. In both cases, the State asked that
the cases be remanded to the Superior Court with directions to vacate and reimpose
the sentences, in order to allow appellants, with counsels’ assistance, to file timely
notices of appeal. The Court agreed and remanded both cases for resentencing.°

In these cases, the State did not object to — indeed, it requested — the remand
and resentencing. However, in cases where the State has properly objected on
jurisdictional grounds, there is a different result. For example, in DeJohn v. State,
2019 WL 3945644, at *1 (Del. Aug, 20, 2019), appellant filed a notice of appeal
from the Superior Court’s order denying his motion for modification of sentence.
While the appeal was pending, appellant completed his sentence, including the
period of probation, and was no longer subject to supervision. The Supreme Court

ordered appellant to show cause why his appeal should not be dismissed as moot,

 

* Supr. Ct. R. 26(a) sets forth the continuing obligations of, and duty of representation by, counsel
in criminal appeals, including without limitation advising the client of any right to appeal (Supr.
Ct. R. 26(a)(i); docketing an appeal (Supr. Ct. R. 26(a)(ii); and, preparing all documents relating
to the appeal (Supr. Ct. R. 26(a)(iii)).

° This is not a novel approach; see Amaro v. State, 2013 WL 1087644, at *1 (Del. Mar. 13,
2013).
and after considering appellant’s response concluded that his completion of his
sentence had rendered his appeal moot.’ The Court stated:

“Satisfaction of a sentence generally renders a case moot unless a defendant

demonstrates sufficient collateral legal disabilities or burdens flowing from

the conviction to justify appellate review.”® [Emphasis supplied. ]
The Supreme Court found no sufficient collateral disabilities or burdens on the
record in DeJohn, and dismissed the appeal as moot.’

I have reviewed the record in this case and I do not find adequate and concrete,
as opposed to hypothetical or speculative, collateral disabilities or burdens that
Appellant would suffer as a result of an inability to appeal the misdemeanor
convictions. In my view, these two misdemeanor convictions do not give Appellant
a “sufficient stake in the conviction or sentence to survive the satisfaction of the
sentence and to permit him to obtain a review or institute a challenge.”'° The State
points out Appellant’s record of felony convictions, litigation in CCP and Family

Court, arrests, and noncompliance with court orders.'' | Moreover, collateral

consequences generally do not arise from misdemeanor convictions. '*

 

’ Citing Collins v. State, 2016 WL 97465, at *1 (Del. Jan. 6, 2016).

* E.g., Ross v. State, 2015 WL 410270 (Del. Jan. 28, 2015); Hall v. State, 2013 WL 1932727
(Del. May 8, 2013).

* In its letter, the State discusses the origins of the “collateral consequences” rule in Gural v.
State, 251 A.2d 344 (Del. 1969), I need not address that history here.

10 Gural, 251 A.2d at 345.

'! Gural, 251 A.2d at 345, held that appellant’s position would have had more merit if his
conviction “blemished an otherwise clean record.” Such is not the case here.

'° Harvey v. State, 1996 WL 585912 (Del. Oct. 7, 1996), citing Naylor v. Superior Court, 558
F.2d 1363, 1366 (9" Cir. 1977). Cf State v. Lewis, 797 A.2d 1198 (Del. 2002), finding potential
deportation to constitute a sufficient collateral consequence.

4
Finally, Appellant argues that judicial economy weighs in favor of allowing
an appeal, because if the appeal is denied by the Supreme Court as untimely,
Appellant will likely file a Petition for Postconviction Relief under Superior Court
Criminal Rule 61. However, Appellant’s completion of his sentence renders him
unable to seek such postconviction relief, because Rule 61 by its terms is available
only to those in custody or subject to future custody.'? Once Appellant was
discharged from probation, he is not subject to any further custody for the two

misdemeanor charges, and thus lacks standing to seek Rule 61 relief.

II. CONCLUSION

Thus, I deny Appellant’s request to reissue my July 9, 2019 Order and to make

the sentence effective as of a later date.

IT IS SO ORDERED this 23rd day of October, 2019.

 

cc: Prothonotary’s Office
Counsel of Record

 

's Super. Ct. Crim. R. 61(a); Ruiz v. State, 2008 WL 1961187 (Del. May 7, 2008).

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