Perry v. State ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
HASSAN J. PERRY, §
§ No. 491, 2015
Defendant Below, §
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for Kent County
§ Cr. ID 0809006271C
Plaintiff Below, §
Appellee. §
Submitted: October 8, 2015
Decided: October 22, 2015
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
ORDER
This 22nd day of October 2015, upon consideration of the notice to show
cause, the appellant’s response, and the State’s reply, it appears to the Court that:
(1) The appellant, Hassan Perry, filed his notice of appeal on September
10, 2015 from a Superior Court order dated August 14, 2015. The Superior
Court’s order granted Perry’s appointed postconviction counsel’s motion to
withdraw as counsel “subject to Rule 61(e)(5)(6).” The Clerk of this Court issued
a notice to Perry directing him to show cause why his appeal should not be
dismissed based on this Court’s lack of jurisdiction to hear an interlocutory appeal
in a criminal case.
(2) Perry filed a response to the notice to show cause. Although his
response is not entirely clear, Perry appears to suggest that the Superior Court’s
citation to Superior Court Rule 61(e)(6)1 constituted a ruling on the merits of his
postconviction motion. In its reply, the State asserts that the Superior Court’s
order was not a ruling on the merits of Perry’s motion and that substitute counsel
has been appointed to represent Perry in the postconviction proceedings below.
The State argues that Perry’s appeal must be dismissed as interlocutory.
(3) Under the Delaware Constitution, this Court may only review a final
judgment in a criminal case.2 The Superior Court’s grant of counsel’s motion to
withdraw was not a ruling on the merits of Perry’s postconviction motion and is
clearly an interlocutory ruling.3 As a result, this Court does not have jurisdiction to
review this appeal.4
NOW, THEREFORE, IT IS ORDERED that the within appeal is
DISMISSED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
1
Superior Court Criminal Rule 61(e)(6) states in part, “If counsel considers the movant’s claim
to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of
any other substantial ground for relief available to the movant, counsel may move to withdraw.”
2
Del. Const. art. IV, § 11(1)(b).
3
See Robinson v. State, 704 A.2d 269, 271 (Del. 1998).
4
See Gottlieb v. State, 697 A.2d 400 (Del. 1997).
2