Opinion
No. 485, 2002.
Submitted: October 31, 2002.
Decided: November 14, 2002.
Cr. ID No. 9607012102
Mandamus dismissed.
Unpublished opinion is below.
IN THE MATTER OF THE PETITION OF DONALD BASS FOR A WRIT OF MANDAMUS. No. 485, 2002 Supreme Court of Delaware. Submitted: October 31, 2002 Decided: November 14, 2002
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
ORDER
Joseph T. Walsh, Justice:
This 14th day of November 2002, upon consideration of the petition for a writ of mandamus filed by Donald Bass, the answer and motion to dismiss filed by the State of Delaware, and the State's supplemental answer dated October 31, 2002, it appears to the Court that:
(1) In January 1998, after a Superior Court jury trial, Donald Bass was convicted of multiple counts of Robbery in the First Degree and multiple weapons offenses. Bass was sentenced in November 1998 as a habitual offender.
On direct appeal, this Court affirmed the judgment of the Superior Court.
Bass v. State, 2000 WL 1508724 (Del.Supr.).
(2) In April 2001, Bass requested the preparation of transcripts at State expense. Specifically, Bass requested transcripts of two case review hearings that took place on October 31, 1996 and December 9, 1996. The Superior Court denied Bass' request.
(3) In May 2001, Bass filed a motion for postconviction relief. By order dated October 17, 2001, the Superior Court denied Bass' postconviction motion. Bass filed an appeal from the October 17 denial of postconviction relief, but his appeal was dismissed as untimely.
State v. Bass, 2001 WL 1628476 (Del.Super.Ct.).
Bass v. State, 2001 WL 1636762 (Del.Supr.).
(4) In April 2002, Bass requested permission from the Superior Court to purchase the transcripts of the October 31 and December 9, 1996 case review hearings. Bass' request was granted.
(5) The Superior Court court reporters provided Bass with a transcript of the October 31, 1996 case review hearing. The court reporters could not, however, locate the stenographic notes from the December 9, 1996 case review hearing. Accordingly, by letter dated July 30, 2002, the court reporters informed Bass that they could not prepare a transcript of the December 9, 1996 case review hearing.
(6) In his petition for a writ of mandamus, Bass seeks to compel the Superior Court to provide him with a transcript of the December 9, 1996 case review hearing. The Superior Court is unable, however, to produce a copy of the December 9, 1996 case review hearing transcript for Bass. The vital stenographic notes from the December 9, 1996 case review hearing are no longer in the possession of the Superior Court court reporters. The notes from the December 9 case review hearing are, for all intents and purposes, lost.
At this Court's request, the State conducted an independent inquiry into the availability of the stenographic notes from the December 6, 1996 case review hearing. By letter dated October 31, 2002, the State reported that "it appears extremely unlikely that the notes can be found."
(7) "A court will not grant a writ of mandamus unless it is convinced that the issuance of such a writ will effectively achieve the purpose sought by the [petitioner]." Mandamus will not issue to require the performance of an impossible act.
Economic Opportunities Development Corp. v. Bustamante, 562 S.W.2d 266, 267 (Tex.Civ.App. 1978).
Id. at 268.
(8) In this case, mandamus will not be issued to compel the Superior Court to furnish a transcript that is impossible to produce. Bass, however, is not without a legal remedy to address the alleged prejudicial effect of the missing transcript. Bass may raise the alleged relevancy of the December 9, 1996 case review hearing transcript in a motion for postconviction relief. Bass may also invoke the provisions of Supr.Ct.R. 9(g), if appropriate, in any further proceeding.
NOW, THEREFORE, IT IS ORDERED that the State's motion to dismiss is GRANTED. The petition for a writ of mandamus is DISMISSED.