             IN THE SUPREME COURT OF THE STATE OF DELAWARE

    JOSEPH KING,                           §
                                           §
           Petitioner Below,               §   No. 697, 2014
           Appellant,                      §
                                           §
           v.                              §   Court Below—Superior Court
                                           §   of the State of Delaware,
    STATE OF DELAWARE,                     §   in and for Sussex County
           Respondent Below,               §   C.A. No. S14M-11-004
           Appellee.                       §
                                           §

                               Submitted: January 2, 2015
                               Decided:   January 23, 2015

Before STRINE, Chief Justice, VALIHURA, and VAUGHN, Justices.

                                        ORDER

          This 23rd day of January 2015, upon consideration of the appellant’s opening

brief, the State’s motion to affirm, and the record below, it appears to the Court

that:

          (1)    The appellant, Joseph King, filed this appeal from the Superior

Court’s denial of his petition for a writ of mandamus. The State of Delaware has

filed a motion to affirm the judgment below on the ground that it is manifest on the

face of King’s opening brief that his appeal is without merit.1 We agree and

affirm.


1
    Supr. Ct. R. 25(a).
      (2)   The record reflects that, in September 2002, King pled guilty to one

count of Robbery in the First Degree, one count of Theft, and three counts of

Burglary in the Third Degree.      The Superior Court declared King a habitual

offender under 11 Del. C. § 4214(a) for the Robbery in the First Degree conviction

and sentenced him to twenty years of Level V incarceration. King was sentenced

to a total period of eleven years of Level V incarceration on the remaining charges,

suspended upon successful completion of the Level V Tempo program for

decreasing levels of supervision. King did not appeal his convictions or sentence.

      (3)   In November 2014, King filed a petition for a writ of mandamus in the

Superior Court. King asked the Superior Court to compel the Department of

Correction to find that he was eligible for sentence modification under 11 Del. C. §

4217 and to apply for modification of his sentence. The Superior Court held that

King did not have a clear right to action by the Department of Correction and

therefore his petition for a writ of mandamus was frivolous. The Superior Court

dismissed the petition with prejudice. This appeal followed.

      (4)   On appeal, King asks this Court to hold that he is eligible for sentence

modification under 11 Del. C. § 4217. Under Section 4217, the Department of

Correction may file an application for modification of an inmate’s sentence “for

good cause shown which certifies that the release of the defendant shall not




                                         2
constitute a substantial risk to the community or the defendant’s ownself.”2 “[N]o

offender who is serving a statutory mandatory term of incarceration at Level V

imposed pursuant to a conviction for any offense set forth in Title 11 shall be

eligible for sentence modification pursuant to this section during the mandatory

portion of said sentence” unless sentence modification “is based solely upon

serious medical illness or infirmity of the offender.”3

          (5)    We review the Superior Court’s denial of a petition for a writ of

mandamus for abuse of discretion. “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.”4 As a condition precedent to the issuance of the writ, the petitioner

must demonstrate that: (i) he has a clear right to the performance of the duty; (ii)

no other adequate remedy is available; and (iii) the agency has arbitrarily failed or

refused to perform its duty.5 A writ of mandamus will not be issued to compel a

discretionary act.6


2
    11 Del. C. § 4217(b).
3
    11 Del. C. § 4217(f).
4
    Clough v. State, 686 A.2d 158, 159 (Del. 1996).
5
    In re Bordley, 545 A.2d 619, 620 (Del. 1988).
6
    Darby v. New Castle Gunning Bedford Educ. Ass’n, 336 A.2d 209, 211 (Del. 1995).



                                                    3
         (6)    King has not shown that the Department of Correction had a duty to

declare him eligible for sentence modification under Section 4217 or to submit an

application for modification of his sentence. It is within the discretion of the

Department of Correction to apply for modification of an inmate’s sentence under

Section 4217.7 Thus, the Superior Court did not err in dismissing King’s petition

for a writ of mandamus.

         NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED

and the judgment of the Superior Court is AFFIRMED.


                                             BY THE COURT:

                                             /s/ Karen L. Valihura
                                                    Justice




7
    Woods v. State, 2003 WL 1857616, at *1 (Del. Apr. 8, 2003).



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