          IN THE SUPREME COURT OF THE STATE OF DELAWARE

    IN THE MATTER OF THE                       §
    PETITION OF PAUL E. WEBER                  § No. 169, 2018
    FOR A WRIT OF MANDAMUS                     §

                             Submitted: April 23, 2018
                              Decided: May 30, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                      ORDER

       This 30th day of May 2018, upon consideration of Paul E. Weber’s petition for

a writ of mandamus and the State’s answer and motion to dismiss,1 it appears to the

Court that:

       (1)    Weber seeks to invoke the original jurisdiction of this Court, under

Supreme Court Rule 43, to issue a writ of mandamus ordering the Superior Court to

allow him to challenge his Forgery in the Second Degree conviction under Superior

Court Criminal Rule 35(a). We conclude that Weber’s petition manifestly fails to

invoke the original jurisdiction of this Court. The petition must therefore be

dismissed.

       (2)    In 2001, a Superior Court jury found Weber guilty of Forgery in the

Second Degree and Misdemeanor Theft. Weber was sentenced to 30 days of Level

1
 On May 11, 2018, Weber filed a motion for leave to respond to the answer and motion to dismiss.
Supreme Court Rule 43 provides that after an answer is filed “unless the Court otherwise directs,
no further submissions of the parties shall be accepted.” The Court did not direct the filing of
further submissions and finds no basis to do so after considering the appellant’s motion.
V incarceration for each conviction. This Court dismissed Weber’s direct appeal

based on its lack of jurisdiction to hear a criminal appeal unless the sentence imposed

is a term of imprisonment exceeding one month or a fine exceeding $100.2

      (3)     After Weber was convicted of Attempted Robbery in the First Degree

and Attempted Carjacking in the First Degree in 2005, the Superior Court granted

the State’s petition to declare Weber an habitual offender under 11 Del C. § 4214(a).

Weber’s Forgery in the Second Degree conviction was one of the predicate offenses.

On appeal, Weber argued that, among other things, his Forgery in the Second Degree

conviction did not qualify as a predicate offense under 11 Del. C. § 4214(a) because

he had no right to appeal. This Court held that Weber’s Forgery in the Second

Degree conviction was a qualifying offense under § 4214(a) and the unavailability

of a direct appeal did not change this result.3 We noted that Weber could have filed

a motion to correct an illegal sentence under Superior Court Criminal Rule 35(a) or

a petition for a writ of certiorari.4 We reversed the Attempted Robbery in the First

Degree conviction on other grounds, remanded for a new trial, and affirmed the

Attempted Carjacking in the First Degree conviction.5




2
  Weber v. State, 2002 WL 31235418, at *1 (Del. Oct. 4, 2002) (citing Del. Const. art IV, §
11(1)(b)).
3
  Weber v. State, 971 A.2d 135, 158-60 (Del. 2009).
4
  Id. at 159-60.
5
  Id.at 143.


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         (4)     On remand, Weber was convicted of Attempted Robbery in the First

Degree. The State again filed a motion to declare Weber an habitual offender under

§ 4214(a). The Superior Court granted the motion and sentenced Weber to twenty-

five years of Level V incarceration for Attempted Robbery in the First Degree. We

affirmed Weber’s conviction and sentence on direct appeal.6

         (5)     In his petition for a writ of mandamus, Weber argues that the Superior

Court has not allowed him to challenge his Forgery in the Second Degree conviction

under Superior Court Criminal Rule 35(a). He claims that the Superior Court

rejected his attempts to do so in an April 30, 2013 order denying his motion for

appointment of counsel and an April 20, 2016 order denying his motion for default,

summary, and relief of judgment in his Forgery in the Second Degree case. The

record does not reflect that Weber appealed the April 20, 2016 order.

         (6)     A writ of mandamus will only issue if the petitioner can show: (i) a

clear right to the performance of a duty; (ii) that no other adequate remedy is

available; and (iii) the Superior Court has arbitrarily failed or refused to perform its

duty.7 “[I]n the absence of a clear showing of an arbitrary refusal or failure to act,

this Court will not issue a writ of mandamus to compel a trial court to perform a




6
    Weber v. State, 38 A.3d 271 (Del. 2012).
7
    In re Bordley, 545 A.2d 619, 620 (Del. 1988).


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particular judicial function, to decide a matter in a particular way, or to dictate the

control of its docket.”8

      (7)    Weber has not satisfied the criteria for issuance of a writ of mandamus.

He has not shown that the Superior Court arbitrarily refused to perform a duty owed

to him. In addition, he could have filed a notice of appeal from the Superior Court’s

April 20, 2016 order, but did not do so. A petitioner who has an adequate remedy

in the appellate process may not use the extraordinary writ process as a substitute

for a properly filed appeal.9

      NOW, THEREFORE, IT IS ORDERED that the State’s motion to dismiss is

GRANTED. The petition for the issuance of a writ of mandamus is DISMISSED.

                                         BY THE COURT:

                                         /s/ James T. Vaughn, Jr.
                                               Justice




8
 Id.
9
 In re Noble, 2014 WL 5823030, at *1 (Del. Nov. 6, 2014); Matushefske v. Herlihy, 214 A.2d
883, 885 (Del. 1965).


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