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explaining that " prisoner is not entitled to good time credit as a matter of constitutional right." (quoting Gibbs v. Carroll, 2003 WL 21999595, at *1 (Del.Super., Jan. 15, 2003) (ORDER))
Summary of this case from Johnson v. PhelpsOpinion
C.A. No. 04M-07-005, Def. ID No. 84001657DI.
Submitted: August 25, 2004.
September 28, 2004.
Bernard M. Taylor, M.C.T.C.
Richard W. Hubbard, Esquire, Department of Justice.
Dear Mr. Taylor and Mr. Hubbard:
The issue of whether petitioner Bernard M. Taylor's ("petitioner") petition seeking a writ of mandamus with regard to credit time should proceed now is ripe. In a letter dated July 13, 2004, this Court deemed petitioner to be indigent. Taylor v. Rendina, Del. Super., C.A. No. 04M-07-005, Bradley, J. (July 13, 2003). However, before allowing the matter to proceed, it required the appropriate person from the Department of Correction ("DOC") to provide an affidavit explaining what good time credits are being awarded petitioner. Id. DOC has submitted the requested affidavit, and I consider the petition below.
Petitioner has requested the appointment of counsel to represent him in this petition. He is not entitled to the appointment of counsel in a civil proceeding, and the request is denied.
In 1986, petitioner was found guilty of charges of robbery in the first degree, burglary in the second degree, possession of a deadly weapon during the commission of a felony, kidnapping in the first degree, and conspiracy in the first degree. He was sentenced in July, 1988, to a long period of incarceration, and the sentence was to be served consecutive to one which he was serving in Maryland On February 26, 1991, the Superior Court vacated his conviction for possession of a deadly weapon during the commission of a felony and set a new sentencing date. On March 12, 1991, he was resentenced, effective March 22, 1988, on the remaining charges to a total of twenty-eight (28) years at Level 5, consecutive to his Maryland sentence, with the first three (3) years to be mandatory.
During a portion of the time he has served the Delaware sentence, petitioner has been housed in Maryland pursuant to the Interstate Corrections Compact ("ICC") as authorized by 11 Del. C. § 6571.
Petitioner makes numerous arguments in support of his claim for a writ of mandamus regarding credit time. All of the issues pertain to meritorious credit time.
Petitioner references House Bill 891, which he claims was adopted April 1, 1973. Petitioner did not provide a copy of that bill and the Court could not locate any such bill. Accordingly, the Court ignores petitioner's arguments based on this bill.
As the Superior Court explained in Gibbs v. Carroll, Del. Super., C.A. No. 02M-11-012, Stokes J. (Jan. 15, 2003) (ORDER) at 1-2:
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. Milford 2nd St. Players v. Del. Alcoholic Beverage Comm'n, 552 A.2d 855, 856 (Del.Super. 1988). A writ of mandamus will not issue, unless the petitioner can establish that there is no other adequate remedy available. In re Hyson, 649 A.2d 807, 808 (Del. 1994). A prisoner is not entitled to good time credit as a matter of constitutional right. Snyder v. Andrews, 708 A.2d 237, 242 (Del. 1998). However, this Court will grant mandamus relief in those rare instances where the Petitioner can show that the Department has awarded good time credits but has done so in a manner contrary to the statutory scheme upon which such credits are granted and calculated. Murray v. Messick, Del. Super., C.A. No. 94M-08-002, Graves, J. (Feb. 23, 1995) (Letter Op.).
This Court also will enter a mandamus regarding good time credits in the situation where the Supreme Court has mandated that the credits are to be awarded. Jordan v. State, Del. Super., C.A. No. 93M-08-003, Graves, J. (May 12, 1994), aff'd, Del. Supr., No. 339, 1994, Hartnett, J. (March 1, 1995).
Anthony J. Rendina, Classification Administrator for the Bureau of Prisons within DOC, submitted an affidavit in response to petitioner's contentions. Below, I examine petitioner's arguments and the responses thereto in the context of entitlement to a writ of mandamus.
Petitioner first argues he should receive meritorious credit for being a part of the ICC. Mr. Rendina explains that participating in the ICC is not one of the "programs" for which meritorious credit is given. Since DOC is given discretion as to what programs qualify for meritorious credit and since the ICC is not such a program, petitioner is not entitled to a writ of mandamus awarding him credit time with regard to his participation in the ICC. Johnson v. Carroll, Del. Super., C.A. No. 04M-01-11, Cooch, J. (August 25, 2004); Harris v. Department of Corrections, Del. Super., C.A. No. 98M-09-045, Carpenter, J. (March 26, 1999), app. dism., 741 A.2d 16 (Del. 1999).
Petitioner complains that for a period of five years, he was incarcerated at Delaware Correctional Center and was not allowed to work, allegedly due to retaliation for his filing grievances and lawsuits. As a result, he could not receive meritorious credits during that time period. He maintains he is entitled to credit time for those years he was not allowed to work. Because petitioner has no absolute right to a job, he has no right to a writ of mandamus awarding him credit time. Parker v. Kearney, Del. Super., C.A. No. 99M-06-005, Graves, J. (Aug. 23, 2000).
Petitioner next argues he is entitled to meritorious credit for participating in a job in the dietary department for three years and five months while incarcerated in Maryland According to petitioner, Maryland awards credit time in the amount of ten (10) days per month for participating in such a program. Delaware is willing to give him only five (5) days per month, and he maintains he is entitled to an additional five (5) days per month.
Mr. Rendina explains that petitioner was awarded credit time, and the sheet submitted in support of that contention shows that he was awarded credit time in the amount of five (5) days per month while housed in Maryland He further explains that petitioner did not receive credit time for the period May 2003 through December 14, 2003, because he did not have a job during that time period. He did not receive credits for the period from December 15, 2003, until the present time because Maryland has not sent DOC a current progress report.
The issue is whether petitioner should receive the amount of credit time which Maryland awards for work or whether he is limited to the five (5) credit days per month which Delaware awards. Judicial precedent requires the awarding of the greater amount, if it turns out Maryland awards more time. Prior case law has held that an inmate housed out of state is entitled to credit time at the rate he would have received if incarcerated in Delaware, except where the out of state institution gives greater credit. In the latter situation, the inmate is entitled to the increased credits. Bailey v. State, 459 A.2d 531, 535 (1983); Jordan v. State, supra.
Petitioner's final argument is that he has worked beyond forty (40) hours per week, and is entitled to meritorious credit for such. Mr. Rendina explains petitioner was awarded overtime credits where that information was provided and the paperwork submitted in support of this explanation establishes that to be the case. Thus, petitioner is not entitled to a mandamus in this situation. Mr. Rendina also explains that DOC no longer awards overtime credit. Consequently, since such an award is within DOC's discretion, petitioner would not be entitled, in the future, to a mandamus ordering an award of credit time for overtime worked. Johnson v. Carroll, supra; Harris v. Department of Corrections, supra.
In conclusion, the only valid claim which petitioner states involves possible entitlement to more than five (5) days per month which Maryland may award to those who work. The Court is aware that petitioner's claim as to the amount of credit time Maryland awards may not be accurate. Accordingly, the Court orders DOC to calculate petitioner's credits according to the statutes and regulations of Maryland for the time he worked. If those credits are greater than those calculated according to Delaware's statute, then the Department will be ordered to award petitioner the greater number of credits. DOC is to make its calculations and report its results on or before October 15, 2004. At that point, the Court will enter a final order mandating the additional number, if any, of good time credits to be awarded petitioner.
Although the petition has not been served in this matter, I see no reason to require the petitioner to attempt to serve the petition and for this Court to endure the costs of that service since the petitioner is indigent. Furthermore, since the Court could require a credit time calculation to be made in the case of State v. Taylor, Def. ID# 84001657DI, I suspend the formalities of service in this case.
IT IS SO ORDERED.