Semick v. State
| Decision Date | 28 June 1982 |
| Citation | 447 A.2d 1182 |
| Parties | George F. SEMICK, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. |
| Court | Supreme Court of Delaware |
Upon appeal from the Superior Court. Reversed and remanded.
Douglas B. Catts and Charles E. Whitehurst, Jr. (argued), of Schmittinger & Rodriguez, P. A., Dover, for defendant below, appellant.
Gary A. Myers (argued), Deputy Atty. Gen., Georgetown, for plaintiff below, appellee.
Before HERRMANN, C. J., McNEILLY and HORSEY, JJ.
This appeal requires examination of summary denial by the Superior Court of the defendant's Motion for Post-Conviction Relief under Superior Court Criminal Rule 35(a). *
The defendant was convicted in 1975 of Conspiracy in the Second Degree, and of being Accomplice to Robbery in the First Degree; he was sentenced to 4 years and 10 years respectively, the sentences to run concurrently. On appeal to this Court, defendant's conviction was affirmed in 1976, his direct appeal having been limited to an alleged error by the Trial Court in denying his motion to dismiss the accomplice indictment.
On May 15, 1981, the defendant filed the Rule 35(a) motion pro se, claiming denial of his constitutional right to effective assistance of counsel at trial. By letter dated May 22, 1981, the Trial Court summarily denied the defendant's motion, holding:
The defendant appealed to this Court, again pro se, whereupon counsel was appointed to represent him. We reverse.
The Trial Court erred in holding that because 6 years had passed from the end of the trial to the date of filing of the Rule 35(a) motion, the motion was "presumptively without merit." No authority has been brought to our attention supporting that proposition. See Wierzbicki v. State, Del.Supr., 405 A.2d 692 (1979).
Indeed, the ruling below amounts to no more than a ruling that lapse of time, alone, is sufficient to defeat a Rule 35 motion. This is contrary to the express language of Rule 35: "An application may be filed at any time, provided, however, that post-conviction relief shall not be available so long as there is a possibility of taking a timely appeal from the judgment of conviction." (emphasis added).
The State argues for "a rule of reasonable diligence" in the application of Rule 35(a), this on the basis of Federal Habeas Corpus Rule 9(a). ** The contention amounts to the suggestion that we amend Rule 35(a) by retroactive construction. This we decline to do for policy reasons and because Rule 9(a), even by analogy, does not support the position.
Federal Rule 9(a) does not create a conclusive presumption that passage of time, per se, renders a motion under it meritless. On the contrary, delay alone is not a bar to federal habeas corpus relief, see e.g., Hudson v. State, 361 F.Supp. 1102 (M.D.Ala.1973), rev'd on other grounds sub nom. Hudson v. Alabama, 5th Cir., 493 F.2d 171 (1974); the Government must make a particularized showing of prejudice. Paprskar v. Estelle, 5th Cir., 612 F.2d 1003 (1980); cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980).
The Trial Court also manifestly erred in that its ruling indicates noncompliance with the express requirement of Rule 35(a) that, upon application for post-conviction relief under the Rule, the Court must make a review of "the files and records of the case" and be satisfied "that the applicant is not entitled to relief," or hold a prompt hearing, upon notice to the Attorney General, and make the requisite findings of fact and conclusions of law. Compare Derrickson v. State, Del.Supr., 399 A.2d 202 (1979). The ruling of the Trial Court here clearly indicates failure to comply with the mandate of the Rule.
Accordingly, the cause must be reversed and remanded for strict compliance with the Rule. The remand is limited to a period of 40 days, during which time the Trial Court shall take the required action, make the necessary determinations, and report back on the remand. Jurisdiction is reversed.
* * *
Reversed and remanded for proceedings consistent herewith.
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