Opinion
C.A. No. S11M-02-013 THG.
March 31, 2011.
DECISIONS ON MOTION TO PROCEED IN FORMA PAUPERIS AND UPON REVIEW OF THE COMPLAINT.
Kevin M. Cox ("Cox") has filed a petition seeking a writ of mandamus regarding the order in which his sentences should be served as well as a motion to proceed in forma pauperis. This is my decision granting the motion to proceed in forma pauperis, but dismissing the petition seeking a writ of mandamus as legally meritless.
Petitioner has established he is indigent and I, therefore, grant the motion to proceed in forma pauperis. However, before allowing the action to proceed, I must review the petition pursuant to 10 Del. C. § 8803(b) and determine whether it is legally frivolous. If it is, then the petition will not proceed.
On July 23, 2010, Cox entered into a guilty plea in the case of State v. Cox, Def. ID# 1001019278. He pled guilty to charges of aggravated menacing and robbery in the first degree.
He was sentenced on July 23, 2011, as follows.
As to the aggravated menacing conviction, he was declared an habitual offender. He was sentenced to 5 years at Level 5, with credit for 140 days previously served. Although petitioner must serve the entire sentence at Level 5, he is entitled to credit time pursuant to 11 Del. C. § 4381. 11 Del. C. § 4214(a); Tackett v. State, 2011 WL 768404 (Del. March 4, 2011). As to the robbery in the first degree conviction, he was sentenced to Level 5 for 25 years, suspended after 4 years at Supervision Level 5 Key and upon successful completion of Key, the balance is suspended for 1 year at Level 4, Residential Substance Abuse Treatment Program ("RSATP"), and upon successful completion of RSATP, the balance is suspended for 5 years at Level 3 Aftercare. The first three years are a minimum sentence. However, petitioner receives good time credits against the sentence. In the notes, the Court ordered as to the robbery in the first degree sentence:
In 11 Del. C. § 4214(a), it is provided in pertinent part:
Notwithstanding any provision of this title to the contrary, any sentence of less than life imprisonment imposed pursuant to this subsection shall not be subject to suspension by the court, and shall be served in its entirety at a full custodial Level V institutional setting without the benefit of probation or parole, except that any such sentence shall be subject to the provisions of § . . . 4381 . . . of this title.
In 11 Del. C. § 832, it is provided in pertinent part as follows:
(b) Notwithstanding any provisions of this section or Code to the contrary, any person convicted of robbery in the fist degree shall receive a minimum sentence of:
(1) Three years at Level V;. . . .
(c) The sentencing provisions of this section apply to attempted robbery in the first degree as well as robbery in the first degree.
In 11 Del. C. § 4381 (2008), it is provided in pertinent part as follows:
(a) Subject to the limitations set forth in subsection (b) of this section [which do not apply], all sentences, other than a life sentence, imposed for any offense pursuant to any provision of this title . . . may be reduced by good time credit under the provisions of this subchapter and rules and regulations adopted by the Commissioner of Corrections. This provision will apply regardless of any previously imposed statutory limitations set forth in this title. . . .
However, even before this statute was enacted, a defendant received credit time on a minimum robbery sentence. State v. Cooper, 2009 WL 3719490 (Del. Super. Oct. 20, 2009).
As to Cra. No. 10-02-1256 — The defendant shall enter into the Key Program at a time desginated [sic] by the Department of Correction so that he completes it during or soon after the 10 years unsuspended portion of this sentence.
On July 27, 2010, this order was corrected as to the notes to "reflect that the defendant received a total of 9 years Level 5 time that was unsuspended, not 10." The corrected order also clarified the credit time to which he was entitled was 140 days and not 147 days.
On August 25, 2010, the sentencing order was modified to order petitioner pay $350.00 in restitution.
On December 10, 2010, after pleading guilty to a charge of attempted robbery in the first degree in the New Castle County Superior Court case of State v. Cox, Def. ID# 1001019154, petitioner was sentenced, effective November 5, 2010, to Level 5 for 25 years, suspended after 4 years at Level 5 for 2 years at Level 3. The sentencing order noted that the probation in this case shall run concurrent with that on the Sussex County robbery sentence.
The Department of Correction ("DOC") is running the sentences as follows: the aggravated menacing sentence, followed by the robbery in the first degree sentence, followed by the attempted robbery in the first degree sentence.
In the case of State v. Cox, Def. ID# 1001019278, petitioner filed a motion for modification before he was sentenced in the New Castle County case, arguing that the robbery sentence was mandatory while the aggravated menacing was not and the robbery sentence needed to interrupt the aggravated menacing sentence. He complained that absent the interruption, he will not be able to enter any programs to reform himself. As this Court explained to him in a letter dated October 18, 2010, the sentence was structured so that he could enter the Key Program close to his release date. If he served the robbery sentence first, he would finish the Key Program and then return to the general population to serve his sentence on the aggravated menacing conviction. That scenario is not beneficial to him. The Court denied his motion for a modification. State v. Cox, Del. Super., Def. ID# 1001019278, Bradley, J. (Oct. 18, 2010).
Petitioner now seeks a writ of mandamus wherein the Superior Court 1) orders two Superior Court Judges to revise their sentences to have the petitioner serve his robbery sentences before serving the aggravated menacing sentence and 2) orders DOC to compute his sentences so that the robbery and attempted robbery sentences precede the aggravated menacing sentence.
As explained in Taylor v. State, 716 A.2d 975, 1998 WL 465137, *1 (Del. 1998) (TABLE):
A writ of mandamus is a command that may be issued by the Superior Court to an inferior court, public official, or agency to compel the performance of a duty to which the petitioner has established a clear legal right.Accord Washington v. Snyder, 713 A.2d 932, 1998 WL 382626 (Del. 1998) (TABLE).
One judge of this Court does not issue a writ of mandamus against other judges of the Court. Thus, petitioner's claims seeking relief against Judge Bradley and Judge Parkins are legally meritless.
Second, petitioner has not established any duty owed by anyone to which he has a clear legal right and consequently, he has not established entitlement to a writ of mandamus.
Petitioner argues that the robbery and attempted robbery sentences are "mandatory" and the aggravated menacing sentence is "non-mandatory" and that the mandatory sentences should precede the non-mandatory sentence pursuant to 11 Del. C. § 4216(b). There is no legal basis for that argument. All three sentences are categorically the same. There is a period of time which petitioner has to serve on each which is not subject to probation or parole yet to which he is entitled to earn good time credits. The five years of the aggravated menacing sentence may not be suspended for probation or parole; yet petitioner will be acquiring good time credits against that sentence. 11 Del. C. § 4214(a); Tackett v. State, supra. Three years of the robbery sentence and three years of the attempted robbery sentence may not be suspended for probation or parole; yet petitioner will be acquiring good time credits against those sentences. 11 Del. C. § 832(b), (c); § 4381(a). The robbery sentences are not more "mandatory" than the aggravated menacing sentence. There is no basis in law for the aggravated menacing sentence to follow the robbery and attempted robbery sentences.
In 11 Del. C. § 4216(b), it is provided:
Where an inmate is serving a "nonmandatory" Level V (incarceration) sentence and is subsequently sentenced to a mandatory term of incarceration, serving of the earlier sentence shall be suspended and the inmate shall serve the new mandatory Level V sentence until it is completed and then resume serving the earlier sentence.
This provision "recognizes the need for transition from non-mandatory sentences to decreased levels of security and ultimate release." Watson v. Burgan, 610 A.2d 1364, 1369 (Del. 1992).
The current sentence was fashioned with the idea that petitioner would complete the Key Program near the time he is to be released from incarceration rather than complete it early during his sentence and thereafter transfer back to the general inmate population to serve another significant period of incarceration.
Petitioner is not entitled to a writ of mandamus and I deny his petition.
I take this opportunity to advise petitioner to talk with his counselor regarding his sentences and how they run and are calculated before filing meritless petitions with the Court. I forewarn him to take advantage of that resource because the filing of a frivolous lawsuit may result in the loss of good time credits pursuant to 10 Del. C. § 8805(a).
In 11 Del. C. § 8805(a), it is provided in pertinent part:
Upon a court's finding pursuant to § 8803(b) or (c) of this title that a prisoner has filed a factually frivolous or malicious action, or upon a court's finding that the action is legally frivolous and that even a pro se litigant, acting with due diligence, should have found well settled law disposing of issue(s) raised, the court may order the Department of Correction to forfeit the portion of the litigant's behavior good time credits accumulated from the date the action was received by the court up to and including every month until the action was disposed of by the court.
In conclusion, the petition seeking a writ of mandamus is dismissed with prejudice.
IT IS SO ORDERED THIS 31st DAY OF MARCH, 2011. .