Opinion
C.A. No. 00M-08-008
Submitted: August 22, 2000
Decided: October 3, 2000
Jerry M. Dewey, Building Med. B Tier, Sussex Correctional Institution, P.O. Box 500, Georgetown, DE 19947
Garland Messick and Janice Moore, Sussex Correctional Institution, P.O. Box 500, Georgetown, DE 19947
Office of the Attorney General, 820 N. French Street, Wilmington, DE 19801
Pending before the Court is the petition of Jerry M. Dewey ("petitioner") for a writ of mandamus ("the petition") . Petitioner asserts that in connection with the current Level 5 sentence he is serving in Criminal Action Number S95-11-0068 ("Cr. A. No. S95-11-0068"), he is entitled to twelve (12) days statutory good time credit and five (5) months, eighteen (18) days credit for Level 5 time he previously served. He requests that the Court issue a mandamus to respondents Garland Messick and Janice Moore ("respondents"), who are employees in the Records Department at Sussex Correctional Institution, instructing them to apply these credits to his current sentence. In connection with his petition, petitioner has filed a motion to proceed in forma pauperis.
In order to consider the pending motion, the Court takes judicial notice of and refers to the file and record in State v. Dewey, Del. Super., Def. ID# 9510018921.
This constitutes my consideration of the motion to proceed in forma pauperis as well as my review of the petition.
MOTION TO PROCEED IN FORMA PAUPERIS
In accordance with the statutory requirements of chapter 88 of 10 Del. C., petitioner has filed a sworn affidavit addressing his ability to pay court costs and filing fees and complete information as to his income. 10 Del. C. § 8802(b). He also has filed, as required, a certified summary of his inmate account which contains "all account activity for the 6-month period immediately preceding the filing of the petition, or for the entire time the prisoner has been incarcerated, whichever time is less." 10 Del. C. § 8804 (a). Since petitioner has provided the required information, the Court determines whether it should grant the motion to proceed in forma pauperis. 10 Del. C. § 8802 (b).
In 10 Del. C. § 8802(b), it is provided:
(b) Before an individual shall be permitted to proceed in forma pauperis for the purposes of this chapter, the individual must submit a sworn affidavit sufficient to allow the court to determine the ability of the affiant to pay all or any portion of the court costs and fees associated with the filing of an action in that court. Such affidavit shall contain a statement that the affiant is unable to pay the costs and fees, and shall provide complete information as to the affiant's identity, the nature, source and amount of all of the affiant's income, the affiant's spouse's income, all real and personal property owned either individually or jointly, all cash or bank accounts held either individually or jointly, any dependents of the affiant and all debts and monthly expenses. The affiant shall further swear or affirm that the information in the affidavit is true and correct and made under penalty of perjury.
In 10 Del. C. § 8804 (a), it is provided:
(a) When the individual seeking permission to proceed in forma pauperis is a prisoner, the prisoner shall file a certified summary of the prisoner's inmate account, together with the affidavit required pursuant to § 8802 of this title. The summary shall contain all account activity for the 6-month period immediately preceding the filing of the complaint, or for the entire time the prisoner has been incarcerated, whichever time is less.
In this case, petitioner is indigent. Consequently, I grant the motion to proceed in forma pauperis.
However, the granting of the motion does not mean that the action will proceed. Instead, the Court must review the petition to determine whether it is factually frivolous, malicious, or legally frivolous. 10 Del. C. § 8803 (a), (b) As explained in Smith v. C.M.S. Medical System, Del. Super., C.A. No. 98-02-248, Herlihy, J.
In 10 Del. C. § 8803(a) and (b), it is provided:
(a) In all cases in which a court has granted an individual leave to proceed in forma pauperis, the court shall issue an order authorizing the filing of the complaint and establishing the amount of court costs and filing fees to be paid. The court may, in its discretion, establish a schedule for the payment of the costs and fees.
(b) Upon establishing the amount of fees and costs to be paid, the court shall review the complaint. Upon such review, the complaint shall be dismissed if the court finds the action is factually frivolous, malicious 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 the issue(s) raised. Any order of dismissal shall specifically identify whether the complaint was factually frivolous, legally frivolous and/or malicious. Service of process shall not issue unless and until the court grants leave following its review.
(March 9, 1998) at 1:
This initial review is to determine whether service of process will issue or the complaint will be dismissed as factually frivolous, malicious or legally frivolous. All well-pled matters are accepted as true to determine whether ... [petitioner] can recover under any conceivable set of circumstances susceptible of proof under the complaint. [Footnotes omitted.]
If a petition fails to state a claim upon which relief may be granted, then it is deemed legally frivolous. See Gibbs v. Hewes, Del. Super., C.A. No. 98C-03-294, Del Pesco, J. (April 16, 1998). If the Court determines the petition is faulty because it is legally frivolous, malicious or factually frivolous, then the Court dismisses it. 10 Del. C. § 8803. If not, it allows service of process to issue.Id. And, in certain situations, the Court may dismiss the petition as to some defendants but allow it to proceed against other defendants.See Smith v. New Castle County Police Department, Del. Super., C.A. No. 99C-03-177, Herlihy, J. (March 23, 1999)
Allowing the complaint to proceed does not preclude a subsequent determination of the issue of whether the complaint should be dismissed on the grounds it is factually frivolous or malicious or the action is legally frivolous. 10 Del. C. § 8803(c).
REVIEW OF PETITION
Petitioner maintains as follows. He was sentenced on March 25, 1996, on Cr. A. No. S95-ll-0068 as follows. Effective March 25, 1996, defendant was placed into the custody of Department of Correction ("DOC") at Level 5 for a period of three (3) years, giving credit for time served on this charge. After serving six (6) months at Level 5, the balance was suspended for three (3) months at Level 4, Home Confinement, followed by six (6) months at Level 3, followed by one (1) year and nine (9) months at Level 2. Defendant was to be held at Level 5 until space was available at Level 4, Home Confinement. He further alleges:
On or about September 12, 1996 and after receiving twelth [sic] (12) days statutory good time under TIS guidelines on this six month (6) sentence defendant was relieved from serving Level five confinement on this case Action No. S95110068I.
Defendant then relates as follows. On June 30, 1999, he was arrested and incarcerated again for violation of probation. On July 23, 1999, he was found in violation of probation on Cr. A. No. S95-11-0068, and he was sentenced as follows. Effective July 23, 1999, defendant was placed at Level 5 for a period of one (1) year, eleven (11) months, including credit for any time previously served. Defendant was referred to the Key Program, and upon successful completion of the Key Program, then the balance of the Level 5 sentence is to be suspended for nine (9) months at Level 4, Residential Substance Abuse Treatment Program. Defendant shall be held at Level 5 until space is available at Level 4. Upon successful completion of the Level 4 program, then the balance of the Level 4 sentence is suspended and defendant is to be discharged from probation.
Defendant argues in his petition that the order of July 23, 1999 requires that he be awarded twelve (12) days statutory good time credit he earned during his incarceration pursuant to the March 25, 1996 sentencing order as well as five (5) months, eighteen (18) days credit for time served on this sentence. He argues that the language of the July 23, 1999 order stating that defendant's probation was revoked and his sentence was reimposed as well as the phrase "including credit for any time previously served" mean that the original sentence was reimposed and defendant was to receive credit for Level 5 time previously served.
In order to determine if he is entitled to the relief he seeks, the Court first must review the various sentences imposed in connection with Cr. A. No. 95-11-0068.
On March 25, 1996, petitioner originally was sentenced in Cr. A. No. 95-11-0068. Effective March 25, 1996, defendant was placed into the custody of DOC at Level 5 for a period of three (3) years, giving credit for time served. After serving six (6) months at Level 5, the balance was suspended for three (3) months at Level 4, Home Confinement, followed by six (6) months at Level 3, followed by one (1) year and nine (9) months at Level 2. Defendant was to be held at Level 5 until space was available at Level 4, Home Confinement. Defendant was ordered to report to Sussex Correctional Institution on March 29, 1996 at 2:00 p.m.
Petitioner also has been sentenced on a number of other actions, but those sentences are irrelevant to this proceeding.
On November 7, 1997, defendant was found in violation of his probation. DOC treats a violation of probation as a separate action and the sentence thereon as a sentence separate from any originally imposed on the underlying crime or imposed on any previous violations of probation. Thus, DOC gives credit time only for the time a defendant was incarcerated for the violation of probation. It does not give a defendant credit for any Level 5 time previously served on the underlying conviction or served on previous violations of probation on the underlying conviction.
The Court must give a defendant credit for Level 5 time served and a sentence on a violation of probation sentence cannot be greater than that originally imposed. 11 Del. C. § 4334(c); Ingram v. State, Del. Supr., 567 A.2d 868, 869 (1989); Baylis v. State, Del. Supr., No. 372, 1993, Walsh, J. (April 4, 1994) at 4. Thus, this Court, when sentencing defendant for his violation of probation, took into account DOC's policy, gave defendant credit for time served, and imposed a sentence which reflected that Level 5 credit time. Looked at another way, the Court sentenced defendant to time which previously had been suspended for probation. See Kelly v. State, Del. Supr., No. 460, 1996, Hartnett, J. (May 23, 1997) at 4 C" [T]he Superior Court, in its discretion, may reimpose previously suspended prison terms upon a finding that a defendant was in violation of probation.") Thus, on the violation of probation sentence, the Court subtracted from defendant's sentence the six (6) months defendant previously had served at Level 5 and sentenced him to two (2) years and six (6) months at Level 5. See Evans v. State, Del. Supr., No. 479, 1999, Holland, J. (May 30, 2000) at 4 (Defendant originally was sentenced to two (2) years, and the Superior Court appropriately took into account four (4) months served at Level 5 when it sentenced defendant on a violation of probation to one (1) year, eight (8) months); Johnson v. State, Del. Supr., Nos. 41 and 74, 1996, Berger, J. (February 12, 1997) ("Pursuant to 11 Del. C. § 3901 (c), the Superior Court was required to credit Johnson with time served, and the original three (3) year sentence was reduced to two (2) years in recognition of the one (1) year that Johnson had been incarcerated at Level 5."); Bennett v. State, Del. Supr., No. 286, 1994, Holland, J. (October 10, 1995) (The jail sentence a defendant could have received on a violation of probation is determined by the original jail sentence imposed or suspended, and given that defendant had already served two and a half (2 1/2) years at Level 5 of a seven (7) year sentence, it. was permissible for the Superior Court to have imposed four and a half (4 1/2) years at Level 5 on a violation of probation.)
Specifically, the November 7, 1997 sentencing order on Cr. A. No. S95-ll-0068, as modified by the Court's December 2, 1997 order, provided that effective November 7, 1997, defendant was placed in the custody of DOC at Level 5 for a period of two (2) years, six (6) months, including credit for any time previously served. This Level 5 sentence was suspended for Level 4, residential substance abuse program. Defendant was to be held at Level 4, Work Release until space was available at the Level 4 program, and he was to be held at Level 5 until space was available at Level 4 Work Release. This sentence was followed by six (6) months at Level 4, Home Confinement, including any aftercare, followed by one (1) year at Level 3.
Defendant again was found in violation of probation on May 13, 1998, and in his May 13, 1998 sentencing order on Cr. A. No. S95-11-0068, defendant was sentenced as follows. Effective May 13, 1998, defendant was placed in the custody of DOC at Level 5 for a period of two (2) years, six (6) months, including credit for any time previously served. This sentence was suspended for six (6) months at Level 4, Home Confinement, followed by twelve (12) months at Level 2. Defendant was to be held at Level 5 until space was available at Level 4.
Defendant was violated on his probation again on July 17, 1998. The sentence on Cr. A. No. S95-11-0068 provided as follows. Effective July 17, 1998, defendant was placed in the custody of DOC at Level 5 for a period of two (2) years, six (6) months. Defendant was given credit for time previously served "since picked up". The first thirty (30) days was mandatory pursuant to 11 Del. C. § 4204 (k). After serving thirty (30) days at Level 5, the sentence was suspended for six (6) months at Level 4, Home Confinement, followed by twelve (2.2) months at Level 3, followed by six (6) months at Level 2. He was to be held at Level 5 until space was available at Level 4.
On August 18, 1998, defendant again was found in violation of his probation. This violation of probation sentence on Cr. A. No. S95-11-0068 took into account the Level 5 time he had served during his previous violations of probation. He was sentenced as follows. Effective August 18, 1998, defendant was placed at Level 5 for a period of two (2) years, including credit for any time previously served. The first sixty (60) days was mandatory pursuant to 11 Del. C. § 4204 (k) . After serving sixty (60) days at Level 5, the sentence was suspended for six (6) months at Level 4, Home Confinement, followed by twelve (12) months at Level 3 probation, followed by three (3) months at Level 2 probation. He was to be held at Level 5 until space was available at Level 4.
Once again, on July 23, 1999, defendant was found in violation of probation. He was sentenced on Cr. A. No. S95-11-0068 as follows. Effective July 23, 1999, defendant was placed at Level 5 for a period of one (1) year, eleven (11) months, including credit for any time previously served. Defendant was referred to the Key Program, and upon successful completion of the Key Program, then the balance of the Level 5 sentence is to be suspended for nine (9) months at Level 4, Residential Substance Abuse Treatment Program. Defendant shall be held at Level 5 until space is available at Level 4. Upon successful completion of the Level 4 program, then the balance of the Level 4 sentence is suspended and defendant is to be discharged from probation.
I note that the last sentence should have credited defendant with the sixty (60) days he served at Level V pursuant to the August 18, 1998 sentence. Consequently, I will be correcting the July 23, 1999 sentencing order in Cr. A. No. 95-11-0068 to provide that defendant is to be placed at Level 5 for a period of one (1) year, ten (10) months.
Defendant argues that pursuant to this July 23, 1999 sentence, he should be credited with the previous Level 5 time he served pursuant to the March 25, 1996 order as well as the twelve (12) days statutory good time credit he earned during that period of incarceration. He requests that the Court issue a mandamus to the respondents instructing them to credit him with this time.
As the Supreme Court explained in Guy v. Greenhouse, Del. Supr., No. 285, 1993, Walsh, J. (December 30, 1993):
Under Delaware law, the basis for issuance and the scope of relief available through a writ of mandamus under Delaware law are both quite limited. Mandamus is issuable not as a matter of right, but only in the exercise of sound judicial discretion. Moreover, when directed to an administrative agency or public official, mandamus will issue only to require performance of a clear legal or ministerial duty. For a duty to be ministerial and thus enforceable by mandamus, the duty must be prescribed with such precision and certainty that nothing is left to discretion or judgment. [Citations omitted.]Accord Taylor v. State, Del. Supr., 716 A.2d 975 (1998); Washington v. Snyder, Del. Supr., 713 A.2d 932 (1998). In addition, a writ of mandamus is inappropriate where a petitioner has an adequate remedy at law available to him. Taylor v. State, supra.
In this case, defendant clearly is not entitled to the request he seeks. The Court credited him with Level 5 time previously served each time it sentenced him on a violation of probation. In addition, defendant was given good time credit while he served Level 5 time pursuant to the March 25, 1996 sentencing order. Defendant is entitled to credit time only once. See Wilson v. State, Del. Supr., No. 139, 2000, Walsh, J. (September 12, 2000) at
The exception is the last sentence, and the Court will correct that sentence.
3-4. He has received credit for Level 5 time served as well as statutory good time credit, and he is not entitled to receive it again.
Based on the foregoing, petitioner's claims are factually and legally frivolous. Consequently, I conclude that the petition must be dismissed with prejudice.
CONCLUSION
Although I grant petitioner's motion to proceed in forma pauperis, I conclude the petition is factually and legally frivolous and the petition is dismissed with prejudice.
IT IS SO ORDERED.