IN THE SUPREME COURT OF THE STATE OF DELAWARE

SHANNON WATTERSON, § § No. 16, 2014 Defendant Below, § Appellant, § Court Below–Superior Court of § the State of Delaware in and for v. § New Castle County § STATE OF DELAWARE, § § Plaintiff Below, § Cr. ID No. 1211021824 Appellee. § Submitted: June 23, 2014 Decided: June 27, 2014

Before STRINE, Chief Justice, BERGER and RIDGELY, Justices.

O R D E R

This 27 th day of June 2014, upon consideration of the appell ee’s motion to dismiss and the appellant’s response to t he motion, it appears to

the Court that: (1) On September 16, 2013, the appellant, Shannon W atterson, pled guilty, with the assistance of defense counsel , to Assault in the Second Degree and misdemeanor Endangering the Welfare of a Child. On December 6, 2013, the Superior Court sentenced Watt erson to a total of nine years at Level V suspended after five years and one month for two and one-2

half years at Level IV suspended after six months f or decreasing levels of supervision. (2) On January 9, 2014, Watterson, acting pro se , filed a notice of appeal from the December 6, 2013 sentence. Upon re ceipt of Watterson’s

pro se appeal, the Clerk directed Watterson’s defense cou nsel to recognize counsel’s continuing obligation to represent Watter son on appeal by filing a formal notice of appeal, if appropriate, on or befo re January 21, 2014. Watterson’s defense counsel (hereinafter “Counsel”) filed a formal notice of appeal on January 20, 2014. (3) On June 11, 2014, the appellee, State of Delawa re, filed a motion to dismiss the appeal as untimely filed. Th e State alleged that the notice of appeal should have been filed no later th an January 6, 2014 and was not. In response to the motion to dismiss, Wat terson’s Counsel “does not dispute the factual or legal assertions set for th in the Motion to Dismiss.” (4) The appellate jurisdiction of this Court rests upon perfecting an appeal with the applicable time period. 1 In a direct appeal of a criminal conviction, a notice of appeal must be filed “withi n 30 days after a sentence is imposed.” 2

1 Carr v. State , 554 A.2d 778, 779 (Del. 1989). 2 Del. Supr. Ct. R. 6(a)(ii).3

(5) In Delaware, the jurisdictional defect that is created by the untimely filing of a notice of appeal cannot be exc used “in the absence of

unusual circumstances which are not attributable to the appellant or the appellant’s attorney.” 3 An untimely appeal cannot be considered unless an appellant can demonstrate that the failure to timel y file a notice of appeal is attributable to court-related personnel. 4 (6) In this case, Watterson’s notice of appeal shou ld have been filed on or before January 6, 2014, and was not fil ed until January 9, 2014. As a result, the appeal was untimely filed. Moreov er, because Watterson’s Counsel does not contend, and the record does not r eflect, that the untimeliness of the appeal is attributable to court -related personnel, the appeal must be dismissed. (7) Under the unique circumstances of this case, wh en Counsel had a continuing obligation to appeal if that was Watte rson’s desire, we conclude that this matter should be remanded to the Superior Court to determine if Watterson consulted with Counsel and expressed a de sire to appeal. 5 If the Superior Court determines that Watterson told Couns el that she wanted to

3 See Honaker v. State , 2006 WL 298165 (Del. Feb. 6, 2006) (quoting Riggs v. Riggs , 539 A.2d 163, 164 (Del. 1988)). 4 Bey v. State , 402 A.2d 362, 363 (Del. 1979). 5 See Del. Supr. Ct. R. 26(a) (providing for continuing obligation of and representation by counsel on appeal).4

appeal, the Superior Court should vacate its Decemb er 6, 2013 sentencing order and resentence Watterson, with the assistance of new counsel, so that a timely appeal might be filed. NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rule 29(b), that the motion to dismiss is GRANTED. This appeal is DISMISSED as untimely filed and REMANDED to the Superior Cour t for further proceedings in accordance with this Order. Jurisdi ction is not retained.

BY THE COURT: /s/ Henry duPont Ridgely Justice