The defendant-appellant, Damar Smith (“Smith”), seeks to appeal from his Superi- or Court conviction and sentence for Rape in the Third Degree, Unlawful Imprisonment in the Second Degree, and Posses
We then directed the State to file a supplemental memorandum addressing whether this Court should re-examine our holding in Carr v. State,
Last year, in Hickman v. State, this Court considered the same issue and declined to adopt the federal prison mailbox rule.
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 memo-randa, 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 rear-gument 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]l).
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
It is well established in Delaware that “[pjerfection of the appeal within the statutory period is a necessary condition to this Court’s jurisdiction.”
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.
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.
The State acknowledges that there have been significant changes in the prison mail system since this Court’s 1989 decision in Ccmt. In Ca/iT, 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.
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 mail-room 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.
States with unambiguous statutes and/or jurisdictional time requirements similar to our own have not adopted the prison mailbox rule. Iowa,
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).”
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.
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 and effectively reduces the time within the petitioner’s control to 29 days, or 28 days, or 27 days, or less to make certain the petition is filed in a timely manner. An interpretation that gives an inmate a 30-day opportunity to challenge the action taken by prison authorities is consistent with statutory lan*486 guage and sound public policy, and affords every inmate, wherever situated, with a full 30-day filing period.38
In State ex rel. Nichols v. Litscher,
The tolling rule will ensure the proper treatment of pro se prisoners who file petitions for review. When pro se prisoners seek to file petitions, their control over the filing process is circumscribed by prison rules and procedures. Pro se prisoners’ choice in method'of filing is no choice at all. They must rely on the “vagaries of the mail.” Other petitioners may personally deliver their petitions to the clerk of court’s office, even at the last possible moment. We discern no convincing reason why pro se prisoners who act more promptly and otherwise comply with filing requirements should be placed at a disadvantage.41
In 2005, the Kentucky Supreme Court also adopted a tolling approach, based on the United States Court of Appeals for the Sixth Circuit’s five-factor equitable tolling test.
Conclusion
The policy rationales espoused by the United States Supreme Court and the Supreme Court of Wisconsin are persuasive. Although we recognize Houston’s logic, we are constrained by the Delaware statute and our current pi’ocedural rules. The unambiguous language of title 10, section 147, Rule 6(a)(ii), and Rule 10(a) preclude us from adopting a prison mailbox rule — or a tolling analysis that reaches the same result — by judicial decision alone.
In this case, it is undisputed that Smith’s notice of appeal was received after
Procedural Rule Referral
Title 10, section 161 of the Delaware Code provides that the Supreme Court may adopt rules to “regulate the practice and procedure governing causes and proceedings in the Court.”
. Carr v. State, 554 A.2d 778 (Del. 1989).
. Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).
. Hickman v. State, 2010 WL 5239181 (Del. Dec. 21, 2010).
. Id. at *1.
. Del.Code Ann. tit. 10, § 147 (1999).
. Del.Supr. Ct. R. 6(a)(ii).
. Del.Supr. Ct. R. 10(a).
. Scott v. Draper, 371 A.2d 1073, 1073 (Del. 1977) (citing Preform Bldg. Components, Inc. v. Edwards, 280 A.2d 697 (Del. 1971)).
. Id. at 1073-74.
. Houston v. Lack, 487 U.S. at 270, 108 S.Ct. 2379.
. Id. at 271-72, 108 S.Ct. 2379.
. Carr v. State, 554 A.2d at 779-80.
. Id.
. Id. at 780.
. Id. (quoting Houston v. Lack, 487 U.S. at 275, 108 S.Ct. 2379).
. Id.
. Scott v. Draper, 371 A.2d at 1073-74 (citing Preform Bldg. Components, Inc. v. Edwards, 280 A.2d at 697).
. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (citing Anderson v. Yungkau, 329 U.S. 482, 485, 67 S.Ct. 428, 91 L.Ed. 436 (1947)).
. Lutz v. Iowa Swine Exports Corp., 300 N.W.2d 109, 110 (Iowa 1981) ("A timely appeal is jurisdictional.... ”).
. Johnson v. Purkett, 217 S.W.3d 341, 343-44 (Mo.Ct.App.2007) (holding court lacks jurisdiction to entertain an untimely appeal).
. State v. Parmar, 255 Neb. 356, 586 N.W.2d 279, 283 (1998) (holding "jurisdictional statutes must be strictly construed”).
. State ex rel. Tyler v. Alexander, 52 Ohio St.3d 84, 555 N.E.2d 966, 967 (1990) ("The notice of appeal is jurisdictional.” (citing State ex rel. Curran, v. Brookes, 142 Ohio St. 107, 50 N.E.2d 995 (1943))).
. Compare Hunnicutt v. State, 952 P.2d 988, 989 (Okla.Crim.App.1997) (statute imposes a jurisdictional prerequisite upon the Court of Criminal Appeals that does not allow the court to "entertain a post-conviction appeal unless that appeal is ‘filed’ within thirty days of judgment”), with Woody v. State, ex rel. Dep't of Corr., 833 P.2d 257, 259-60 (Okla. 1992) (statute creates mailbox rule by providing that the date of mailing of a petition in error for an appeal to the Oklahoma Supreme Court "shall constitute the date of filing”).
. State v. Mulligan, 696 N.W.2d 167, 169 (S.D.2005) ("[I]t is settled law that the failure to timely file a notice of appeal is a jurisdictional defect.”) (citations omitted).
. West Virginia Dep’t of Energy v. Hobet Min. and Const. Co., 178 W.Va. 262, 358 S.E.2d 823, 825 (1987) ("[Fjailure to file a timely appeal presents a jurisdictional infirmity precluding the court from accepting the appeal.”) (citations omitted).
. See Johnson v. Purkett, 217 S.W.3d at 343 (Missouri); State v. Parmar, 586 N.W.2d at 283 (Nebraska); State ex rel. Tyler v. Alexander, 555 N.E.2d at 967 (Ohio); Hunnicutt v. State, 952 P.2d at 989 (Oklahoma Court of Criminal Appeals); State v. Mulligan, 696 N.W.2d at 169 (South Dakota). Neither Iowa nor West Virginia have addressed this issue.
. Key v. State, 297 Ark. 111, 759 S.W.2d 567, 568 (1988).
. Persson v. Dep’t of Human Servs., 775 A.2d 363, 366 (Me.2001) (filing occurs when appeal is delivered to the court clerk).
. O’Rourke v. State, 782 S.W.2d 808, 809 (Mo.Ct.App.1990) (holding that Houston does not compel abandonment of Missouri's procedure for post-conviction relief).
. State v. Judd, 2010 WL 4924724, at *2 (N.M.Ct.App. Aug. 20, 2010) ("We are not persuaded to adopt a federal rule in order to accept a notice of appeal as timely....").
. Stull v. Hoke, 326 Or. 72, 948 P.2d 722, 726 (1997) (holding that Houston is unpersuasive when interpreting state statute).
. Moore v. Michigan Dep’t Corrs., 462 Mich. 872, 615 N.W.2d 212, 212 (2000); MCR 7.105(B)(3).
. Talley v. Diesslin, 908 P.2d 1173 (Colo. App.1995), superseded by rule, C.R.C.P. 5(f), as stated in Wallin v. Cosner, 210 P.3d 479, 480-81 (Colo.App.2009).
. Id.
. Dowell v. State, 922 N.E.2d 605, 606 (Ind. 2010) (recognizing unique position of pro se prisoners and expressly adopting "prison mailbox” rule).
. Easley v. Roach, 879 So.2d 1041 (Miss. 2004) (quoting in part Sykes v. State, 757 So.2d 997, 1000 (Miss.2000)).
. State v. Fischer, 727 N.W.2d 750, 755 (N.D.2007).
. Taylor v. McKune, 25 Kan.App.2d 283, 962 P.2d 566, 569-70 (1998).
. State ex rel. Nichols v. Litscher, 247 Wis.2d 1013, 635 N.W.2d 292 (2001).
. Wis. Stat. Ann. § 808.10 (West 2012) ("A decision of the court of appeals is reviewable by the supreme court only upon a petition for review granted by the supreme court. [T]he petition for review shall be filed in the supreme court within 30 days of the date of the decision of the court of appeals.”).
. State ex rel. Nichols v. Litscher, 635 N.W.2d at 299.
. Robertson v. Commonwealth, 177 S.W.3d 789, 792 (Ky.2005), overruled by Hallum v. Commonwealth, 347 S.W.3d 55 (Ky.2011); Dunlap v. United States, 250 F.3d 1001 (6th Cir.2001), abrogated by Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749-50 (6th Cir.2011).
. See Ky. R.Crim. P. 12.04(5) ("If an inmate flies a notice of appeal in a criminal case, the notice shall be considered filed if its envelope is officially marked as having been deposited in the institution’s internal mail system on or before the last day for filing with sufficient First Class postage prepaid.”).
. Hallum v. Commonwealth, 347 S.W.3d at 59 ("The prison mailbox rule was crafted to remedy the procedural deficiency our rules posed to pro se inmates seeking to appeal; thus, there is no longer a need for Robertson’s equitable tolling provision.”).
. See Bey v. State, 402 A.2d 362, 363 (Del. 1979) (allowing untimely appeal when documentary evidence showed court-related personnel prevented perfection of timely appeal).
. Del.Code Ann. tit. 10, § 161(a). See also Del. Const, art. IV, § 13.
. Del.Code Ann. tit. 10, § 161(b).
.See In re Grand Jury Proceedings, 616 F.3d 1186, 1197 (10th Cir.2010) (holding that rule regulating time to file notice of appeal is procedural for purposes of Rules Enabling Act); 28 U.S.C. § 2072(a)-(b) (authorizing U.S. Supreme Court “to prescribe general rules of practice and procedure” for federal courts, but providing that rules may not "abridge, enlarge or modify any substantive right”).