           IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANTHONY JACKSON,                           §
                                           §   No. 71, 2016
      Defendant Below,                     §
      Appellant,                           §   Court Below—Superior Court
                                           §   of the State of Delaware
      v.                                   §
                                           §   Cr. ID No. 0107013109
STATE OF DELAWARE,                         §
                                           §
      Plaintiff Below,                     §
      Appellee.                            §

                          Submitted: August 17, 2016
                          Decided:   August 31, 2016

Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

                                       ORDER

      This 31st day of August 2016, upon consideration the briefs and the record

on appeal, it appears to the Court that:

      (1)    Anthony Jackson served a prison sentence for robberies committed in

New York State. After completing his sentence in New York, Jackson should have

been returned to Delaware to serve a consecutive sentence from a guilty plea for

robberies committed in Delaware. As a result of an apparent mistake by New York

authorities, Jackson was released from prison without sending him back to

Delaware to serve his sentence. For almost a year while he was at liberty, Jackson

claims he met the conditions of his parole, secured job training, and earned a
salary. Someone eventually discovered the mistake, and Jackson was returned to

Delaware to start serving his sentence.

      (2)    Jackson filed several motions with the Superior Court seeking credit

against his Delaware sentence for his time at liberty following his release by New

York authorities. In a January 13, 2016 order the Superior Court denied Jackson’s

motion for correction or reduction of sentence. On appeal Jackson claims that,

under the common law doctrine of credit for time spent erroneously at liberty, the

Superior Court should have credited his sentence with the time spent at liberty after

being paroled by New York authorities before re-incarceration in Delaware.

      (3)    Credit for time spent erroneously at liberty might, under the right

circumstances, be awarded to an inmate. But those circumstances are not present

here. Even though he was subject to a detainer, New York correctional officials

mistakenly released Jackson apparently without notifying Delaware correctional

officials. Absent some evidence of negligence by Delaware correctional officials,

Jackson must serve the full sentence meted out by the Superior Court.            We

therefore affirm.

      (4)    While Anthony Jackson was serving a fourteen year sentence in New

York State for a 2001 robbery offense, the State of Delaware indicted Jackson in

November 2001 for nine separate Delaware bank robberies. Using the Interstate

Agreement on Detainers, the State brought Jackson to Delaware to face the

                                          2
Delaware robbery charges. In February 2007, Jackson pled guilty to the Delaware

charges of Robbery First Degree, Robbery Second Degree (as a lesser included

offense), and Possession of a Firearm During the Commission of a Felony. The

Superior Court sentenced Jackson to an aggregate of ten years unsuspended Level

V incarceration, followed by decreasing levels of supervision, to run consecutive

with his New York sentence.

      (5)   After his sentencing, Delaware returned Jackson to the custody of

New York State to finish serving his New York sentence. The New York State

authorities then paroled Jackson in July 2014 without returning him to Delaware to

start serving his consecutive Delaware sentence. Jackson states that after his

release from prison in New York, he remained under New York Board of Parole

supervision, reported weekly to his probation officer where he was drug-screened

each week, and successfully completed a six-month out-patient drug program.

Jackson also claims to have completed a three-month anger management program

and to have gone through job training and to have found a means to support

himself.

      (6)   Jackson’s time at liberty ran out when his New York State probation

officer notified Jackson that he was wanted in Delaware. The record is unclear

how the New York authorities learned that Jackson was wanted in Delaware.

According to the State, Jackson was taken back into Delaware custody on June 18,

                                        3
2015. Jackson has appealed the Superior Court’s January 13, 2016 order denying

his motion for correction or reduction of sentence.                  This Court reviews the

Superior Court’s denial of a motion under Rule 35 for abuse of discretion and

reviews questions of law de novo.1

       (7)      Jackson relies on a doctrine known as credit for time spent

erroneously at liberty. There is considerable disagreement about whether and how

to apply this doctrine.2 We have never directly addressed the issue in Delaware,3

and do not see the need to do so on the limited briefing and record before us.

When the doctrine applies, and before an inmate is awarded credit, the

incarcerating authority—in this case Delaware—must be negligent in carrying out




1
  Benge v. State, 101 A.3d 973, 977 (Del. 2014); Hamilton v. State, 285 A.2d 807, 808 (Del.
1971); Fountain v. State, 100 A.3d 1021 (Del. 2014) (Table) (“We review the Superior Court’s
denial of a motion for correction of sentence under Rule 35[] for abuse of discretion, although
questions of law are reviewed de novo.”).
2
  See Gabriel J. Chin, Getting Out of Jail Free: Sentence Credit for Periods of Mistaken Liberty,
45 Cath. U. L. Rev. 403 (1996); Danielle E. Wall, A Game of Cat and Mouse—Or Government
and Prisoner: Granting Relief to an Erroneously Released Prisoner in Vega v. United States, 53
Vill. L. Rev. 385 (2008); Andrew T. Winkler, Implicit in the Concept of Erroneous Liberty: The
Need to Ensure Proper Sentence Credit in the Fourth Circuit, 35 N.C. Cent. L. Rev. 1 (2012);
Jay M. Zitter, Annotation, Effect of Delay in Taking Defendant into Custody After Conviction
and Sentence, 76 A.L.R. 5th 485 (2000).
3
  In Harley v. State, where an inmate was erroneously at liberty, we stated that the inmate “was
given credit against the remaining term for the approximately three years he was erroneously
released” and “we find no fundamental unfairness or injustice in requiring him to serve the
balance of his original sentence less credit for his time out of the system.” 527 A.2d 281 (Table),
1987 WL 37561, at *1. In Guy v. State, the facts of the erroneous release were similar to those
in the case before us, except the defendant spent nearly three years at liberty. We denied credit
for the time spent erroneously at liberty under the Interstate Agreement on Detainers. 911 A.2d
803 (Table), 2006 WL 2986996 (Del. 2006). Neither case addresses the doctrine.
                                                4
the inmate’s sentence.4 Here, Delaware correctional officials were not involved in

his release. New York correctional officials had custody of Jackson, and released

him even though a detainer had been filed for his return to Delaware after finishing

his New York sentence.

       (8)    Jackson claims that Delaware officials were notified of his release

from custody in New York State. But the document on which he relies to show

notice appears to be a Delaware Department of Correction status sheet, which does

not provide any support for the claim.5              Without any evidence raising the

possibility of negligence by Delaware correctional officials, we find Jackson’s

argument on appeal to be without merit.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                                          BY THE COURT:

                                                          /s/ Collins J. Seitz, Jr.
                                                                Justice




4
  Vega v. United States, 493 F.3d 310, 320 (3d Cir. 2007) (“[n]early every court to have
considered the rule of credit for time at liberty has required that the government’s actions in
releasing or failing to incarcerate the prisoner be negligent.”).
5
  App. to Answering Br. at 38–39.
                                              5
