Smith v. State, No. 103

CourtUnited States State Supreme Court of Delaware
Writing for the CourtHOLLAND
Citation47 A.3d 481
PartiesDamar SMITH, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
Docket NumberNo. 103,2012.
Decision Date10 July 2012

47 A.3d 481

Damar SMITH, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.

No. 103, 2012.

Supreme Court of Delaware.

Submitted: June 27, 2012.
Decided: July 10, 2012.



Court Below—Superior Court of the State of Delaware, in and for New Castle County, Case No. 1103013207.
Upon appeal from the Superior Court. DISMISSED.


Damar Smith, pro se.

Santino Ceccotti, Esquire, Office of the Public Defender, Wilmington, Delaware, amicus curiae for appellant.


Paul R. Wallace, Esquire and James T. Wakley, Esquire, Department of Justice, Wilmington, Delaware, for appellee.

Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.

HOLLAND, Justice:

The defendant-appellant, Damar Smith (“Smith”), seeks to appeal from his Superior Court conviction and sentence for Rape in the Third Degree, Unlawful Imprisonment in the Second Degree, and Possession

[47 A.3d 482]

of a Deadly Weapon by a Person Prohibited. Smith is a pro se prisoner. His notice of appeal was received by the Supreme Court on February 28, 2012, one day after the thirty-day deadline to appeal from his January 27, 2012 sentence. This Court directed Smith to show cause as to why his appeal should not dismissed under Rule 29(b).

We then directed the State to file a supplemental memorandum addressing whether this Court should re-examine our holding in Carr v. State,1 and adopt the Federal “mailbox rule” set forth in Houston v. Lack.2 We appointed the Public Defender to file a response as amicus curiae. The State takes the position that we should again decline to adopt the federal prison mailbox rule of Houston v. Lack. Amicus curiae argue that we should adopt the rule, in light of changed prison mail procedures and for the policy reasons set forth in Houston and subsequent cases.

Last year, in Hickman v. State, this Court considered the same issue and declined to adopt the federal prison mailbox rule.3 We reach the same conclusion in this case. Accordingly, we dismiss Smith's appeal as untimely. 4

Facts and Procedural History

On October 27, 2011, Smith pled guilty to Rape in the Third Degree, Unlawful Imprisonment in the Second Degree, and Possession of a Deadly Weapon by a Person Prohibited. On January 27, 2012, Smith was sentenced to serve, inter alia, six years imprisonment followed by decreasing levels of supervision. On February 28, 2012, this Court received Smith's Notice of Appeal from his conviction and sentence. The Certificate of Service was dated February 21, 2012. The filing was postmarked February 27, 2012.

This Court issued a notice to show cause as to why Smith's appeal should not be dismissed as untimely under Rule 29(b). The State responded. The State and the Public Defender, as amicus curiae, were then directed to file supplemental memoranda, in response to the following prompt:

The Court has directed that the State address whether it should re-examine the holding in Carr v. State, 554 A.2d 778 (Del.1989) and adopt the Federal “mailbox rule” set forth in Houston v. L [ ack ], 487 U.S. 266 [108 S.Ct. 2379, 101 L.Ed.2d 245] (1988). As you know, the court considered this same question last year in Hickman v. State, (No. 508, 2010). For your information, attached is a copy of the State's response in that case to the appellant's motion for reargument en Banc. See also Silverbrand v. County of Los Angeles, 105 [205] P.3d 1047 (Cal.2009); State v. Litscher [247 Wis.2d 1013], 635 N.W.2d 292 (Wis.20[0]1).

Issue on Appeal

Title 10, section 147 of the Delaware Code provides:

No appeal from the Superior Court in a criminal action shall be received or entertained in the Supreme Court unless the praecipe or notice of appeal is duly filed in the office of the Clerk thereof within 30 days after the date of the judgment or decree.5

[47 A.3d 483]

Supreme Court Rule 6(a)(ii) imposes the same 30–day requirement.6 Rule 10(a) further states, in relevant part: “Filing by mail in the office of the Clerk of the Court in Dover is permissible, provided that filing shall not be deemed to be complete until the paper has been received in the office of the Clerk.” 7

It is well established in Delaware that “[p]erfection of the appeal within the statutory period is a necessary condition to this Court's jurisdiction.” 8 Thus, when an appeal is not docketed within the statutory time period, this Court lacks jurisdiction to hear the appeal. 9 The issue before this Court is whether we should consider a notice of appeal to have been filed, for purposes of title 10, section 147 of the Delaware Code and Rule 10(a), at the time it is delivered to prison authorities for mailing.

Prison Mailbox Rule

In Houston v. Lack, the United States Supreme Court held that a pro se prisoner's notice of appeal is deemed “filed” at the moment of delivery to prison authorities for forwarding to the court.10 The Supreme Court reasoned, in part:

No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped “filed” on time. And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk's failure to stamp the notice on the date received. Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access—the prison authorities—and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice. 11

In Carr v. State, this Court expressly refused to adopt the Houston federal prison mailbox rule.12 First, we explained that the Delaware statute is clear and that the notice of appeal deadline is not subject to enlargement by rule in Delaware, as it is in the federal system.13 Second, we reasoned that the procedure used to mail letters in the Delaware prison system is different from that used in the federal prison system. 14 In the federal system, the pro se prisoner “hands [his notice of appeal] over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing and who can readily dispute a prisoner's assertions that he delivered the paper on a different date.” 15 In Carr, we found that Delaware lacked these procedures.

[47 A.3d 484]

Delaware Prison Mail Changes

The State acknowledges that there have been significant changes in the prison mail system since this Court's 1989 decision in Carr. In Carr, we explained that a mailbox rule would be impractical in part because “no one would have any record of when a piece of mail was posted” by a prisoner. 16

Now, Delaware prison facilities have an established procedure, or at least the capacity to establish such a procedure, for logging legal mail. Bureau of Prisons Policy 8.92 requires the Warden of each prison facility to eliminate unsupervised mail drops “[w]here possible.” Standard Operating Procedure 5.1 at the James T. Vaughn Correctional Center requires mailroom staff to keep a log of all incoming and outgoing legal mail. These procedures have created a mechanism for establishing the date a prisoner deposits his notice of appeal for mailing.

Timeliness is Jurisdictional

It is well-established that time is a jurisdictional requirement in Delaware. 17Title 10, section 147 explicitly provides that “[n]o appeal ... shall be received or entertained in the Supreme Court unless the praecipe or notice of appeal is duly filed in the office of the Clerk thereof within 30 days after the date of the judgment or decree.” “[T]he mandatory ‘shall’ ... normally creates an obligation impervious to judicial discretion.” 18 Rule 10(a) of this Court further provides that a filing is not deemed completed until received by the Clerk.

States with unambiguous statutes and/or jurisdictional time requirements similar to our own have not adopted the prison mailbox rule. Iowa,19 Missouri,20 Nebraska,21 Ohio,22 Oklahoma,23 South Dakota,24 and West Virginia 25 all hold timeliness to be a strict jurisdictional requirement. These states have either refused to adopt a prison

[47 A.3d 485]

mailbox rule or have not yet addressed the issue.26

Other states have reasoned that their statutes preclude a Houston analysis and that procedural rules have not been adopted to dictate otherwise. Houston, as the Arkansas Supreme Court points out, “was no more than an interpretation of Federal Rules of Appellate Procedure 4(a)(1).” 27 For similar reasons, Maine,28 Missouri,29 New Mexico,30 and Oregon 31 have found Houston to be unpersuasive in interpreting state statutes and rules. Michigan initially refused to adopt Houston's reasoning by judgment, but subsequently did so by appellate rule.32 Similarly, following its decision in Talley v. Diesslin,33 Colorado amended its Rules of Civil Procedure 5(f) to provide for pro se inmate filings in civil actions.34

Mailbox Rule Rationale

The rationale of other states for adopting the mailbox rule for pro se prisoners has been consistent with the reasoning in Houston. Pro se prisoners are in unique circumstances.35 States are concerned that “ ‘ pro se prisoners would be subject to more disadvantages than are reasonably necessary in the administration of the criminal justice system’ if such a rule is not applied.” 36 In cases of criminal appeals, a prison mailbox rule furthers the court's interest in hearing appeals on their merits. 37 As the Kansas Court of Appeals explained:

An inmate faced with a narrow window of 30 days ... should not be further limited by a statutory interpretation that leaves a timely filing of the vagaries of the very entity against whom the action is brought...

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64 practice notes
  • Cretacci v. Call, No. 20-5669
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 17, 2021
    ...process would provide uniform direction on whether to extend the "mailbox rule" to the filing of a civil complaint. Cf. Smith v. State , 47 A.3d 481, 487 (Del. 2012) (referring the issue to the state rules committee to consider whether the court system "should consider adopting the prison m......
  • Ortiz v. Warfield, C.A. No. CPU4-16-000625
    • United States
    • Court of Common Pleas of Delaware
    • April 12, 2016
    ...Health Ventures v. Home, 2008 WL 2331983, at *1 (Del. Super. May 30, 2008) 15. 10 Del. C. § 9571(b) (emphasis added). 16. Smith v. State, 47 A.3d 481, 483 (Del. 2012) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)). 17. Smith v. State, 47 A.3d 481, 486 (Del.30, 2015) (citing Robert REED ......
  • Hester v. State, No. 671, 2012
    • United States
    • United States State Supreme Court of Delaware
    • March 12, 2013
    ...1. Del. Supr. Ct. R. 6(a)(iii). 2. Carr v. State, 554 A.2d 778, 779 (Del. 1989). 3. Del. Supr. Ct. R. 29(b). 4. Smith v. State, 47 A.3d 481, 486 (Del. 2012). 5. Del. Supr. Ct. R. 10(a). 6. Riggs v. Riggs, 539 A.2d 163, 164 (Del. 1988); Bey v. State, 402 A.2d 362, 363 (Del....
  • Hester v. State , No. 671
    • United States
    • United States State Supreme Court of Delaware
    • March 12, 2013
    ...1. Del.Supr. Ct. R. 6(a)(iii). 2.Carr v. State, 554 A.2d 778, 779 (Del.1989). 3. Del.Supr. Ct. R. 29(b). 4.Smith v. State, 47 A.3d 481, 486 (Del.2012). 5. Del.Supr. Ct. R. 10(a). 6.Riggs v. Riggs, 539 A.2d 163, 164 (Del.1988); Bey v. State, 402 A.2d 362, 363...
  • Request a trial to view additional results
66 cases
  • Cretacci v. Call, No. 20-5669
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 17, 2021
    ...process would provide uniform direction on whether to extend the "mailbox rule" to the filing of a civil complaint. Cf. Smith v. State , 47 A.3d 481, 487 (Del. 2012) (referring the issue to the state rules committee to consider whether the court system "should consider adopting the prison m......
  • Ortiz v. Warfield, C.A. No. CPU4-16-000625
    • United States
    • Court of Common Pleas of Delaware
    • April 12, 2016
    ...Health Ventures v. Home, 2008 WL 2331983, at *1 (Del. Super. May 30, 2008) 15. 10 Del. C. § 9571(b) (emphasis added). 16. Smith v. State, 47 A.3d 481, 483 (Del. 2012) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)). 17. Smith v. State, 47 A.3d 481, 486 (Del.30, 2015) (citing Robert REED ......
  • Hester v. State, No. 671, 2012
    • United States
    • United States State Supreme Court of Delaware
    • March 12, 2013
    ...1. Del. Supr. Ct. R. 6(a)(iii). 2. Carr v. State, 554 A.2d 778, 779 (Del. 1989). 3. Del. Supr. Ct. R. 29(b). 4. Smith v. State, 47 A.3d 481, 486 (Del. 2012). 5. Del. Supr. Ct. R. 10(a). 6. Riggs v. Riggs, 539 A.2d 163, 164 (Del. 1988); Bey v. State, 402 A.2d 362, 363 (Del....
  • Hester v. State , No. 671
    • United States
    • United States State Supreme Court of Delaware
    • March 12, 2013
    ...1. Del.Supr. Ct. R. 6(a)(iii). 2.Carr v. State, 554 A.2d 778, 779 (Del.1989). 3. Del.Supr. Ct. R. 29(b). 4.Smith v. State, 47 A.3d 481, 486 (Del.2012). 5. Del.Supr. Ct. R. 10(a). 6.Riggs v. Riggs, 539 A.2d 163, 164 (Del.1988); Bey v. State, 402 A.2d 362, 363...
  • Request a trial to view additional results

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