Opinion
Docket No. 210, 1999.
June 3, 1999.
MANDAMUS DISMISSED
Unpublished Opinion is below.
IN THE MATTER OF THE PETITION OF MICHAEL D. JOHNSON FOR A WRIT OF MANDAMUS. No. 210, 1999. Supreme Court of Delaware. Submitted: May 26, 1999. Decided: June 3, 1999.
Before WALSH, HOLLAND, and HARTNETT, Justices.
ORDER
This third day of June 1999, upon consideration of the petition for a writ of mandamus filed by Michael D. Johnson and the answer and motion to dismiss filed by the State of Delaware, it appears to the Court that:
(1) Johnson pled guilty in July 1998 to possession of cocaine and possession of marijuana. In September 1998, Johnson was sentenced to seven years at Level V imprisonment, suspended for three years at Level III probation and four years at Level II probation.
(2) Johnson's petition for a writ of mandamus seeks an Order of this Court compelling the Superior Court to act on his motion for post-conviction relief. Johnson also seeks to compel the Superior Court to act on his motion to withdraw his guilty plea.
(3) Johnson's post-conviction motion was filed with the Prothonotary in August 1998, but was not referred by the Prothonotary to a Superior Court judge until April 1999. It appears from the Superior Court docket that Johnson's former counsel filed a response to the motion on May 25, 1999.
(4) Johnson's motion to withdraw his guilty plea was filed with the Prothonotary in February 1999, and was referred by the Prothonotary to a Superior Court judge in March 1999. It appears from the Superior Court docket that the Superior Court Judge assigned to the case has directed that the court reporter prepare a transcript of Johnson's guilty plea proceeding.
(5) This Court will issue a writ of mandamus to a trial court only when the petitioner can show that there is the clear right to the performance of the duty at the time of the petition, no other adequate remedy is available, and the trial court has failed or refused to perform its duty. The Court will not issue a writ of mandamus "to compel a trial court to perform a particular judicial function, to decide a matter in a particular way, or to dictate the control of its docket."
In re Bordley, Del.Supr., 545 A.2d 619, 620 (1988).
Id.
(6) Johnson has not established that the Superior Court has arbitrarily refused or failed to take action on his motion to withdraw his guilty plea. To the contrary, it appears that the Superior Court Judge assigned to the case has directed the preparation of transcript for the purpose of considering and ruling upon the motion. The passage of two months since the motion was referred to a Superior Court judge is not, by itself, evidence of an arbitrary refusal to act by the Superior Court.
In re Davis, Del.Supr., No. 317, 1996, Hartnett, J., 1996 WL 470714 (Aug. 7, 1996) (ORDER).
(7) The record does not reflect any explanation for the passage of nearly eight months between the filing date of Johnson's post-conviction motion and the date that the motion was referred by the Prothonotary to a Superior Court Judge. We hope that the delay attributed to the Prothonotary's Office in Johnson's case represents an aberration from its normal operating procedures. Nonetheless, once the motion was referred to the Superior Court Judge assigned to the case, action was taken to further the judicial process. Johnson has not established that the Superior Court has arbitrarily refused to take action on his motion for post-conviction relief.
(8) There is no basis for the issuance of a writ of mandamus in this case. Accordingly, Johnson's petition for a writ of mandamus must be dismissed.
NOW, THEREFORE IT IS ORDERED that the State's motion to dismiss is GRANTED. Johnson's petition for a writ of mandamus is DISMISSED.
BY THE COURT:
/s/ Randy J. Holland_______________________ Justice