           IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOHN H. BENGE, JR.,                  §
                                     §
      Defendant-Below,               §
      Appellant,                     §
                                     § Nos. 239, 2014
      v.                             § & 283, 2014
                                     § Consolidated
STATE OF DELAWARE,                   §
                                     §
      Plaintiff-Below,               §
      Appellee.                      §

                         Submitted: September 12, 2014
                          Decided: September 22, 2014

Before HOLLAND, RIDGELY, and VALIHURA Justices.

      Upon appeal from the Superior Court.


      Mr. John H. Benge, Jr., Pro Se, Georgetown, Delaware.


     Kathryn J. Garrison, Esquire, Deputy Attorney General, Georgetown,
Delaware, for Appellee.




HOLLAND, Justice
        On May 9, 2014, the defendant-appellant, John H. Benge, Jr., filed an appeal

from the New Castle County Superior Court’s January 16, 2014 order denying his

Motion for Modification of Probation and April 9, 2014 order denying his Motion

for Reargument. This appeal was assigned No. 239, 2014. On May 29, 2014,

Benge filed an appeal from the Sussex County Superior Court’s February 14, 2014

order denying his Motion for Modification of Probation and April 29, 2014, order

denying his Motion for Reargument. This appeal was assigned No. 283, 2014.

After Benge filed his opening briefs in both appeals, the State filed a Motion to

Consolidate appeal No. 239, 2014 and appeal No. 283, 2014. This Court granted

the Motion to Consolidate on July 15, 2014.

        On August 27, 2014, Benge filed a Motion for Expedited Further

Proceedings. Based on his calculations, he claimed that his probation had ended

on May 9, 2014, except for Level I Restitution Only probation, and yet he

remained subject to the conditions of Level III probation. The State did not oppose

the motion because briefing had already been completed.             In light of the

completion of briefing and submission of the matter for decision as of September

12, 2014, this Court held that the Motion for Expedited Further Proceedings was

moot.

        On appeal, Benge argues that the two Superior Court judges erred in denying

his motions to reduce the level of his supervision from Level III to Level I and that


                                          2
the length of his probation has been calculated incorrectly. Upon consideration of

the briefs of the parties, including the permissive writing submitted by Benge on

September 16, 2014,1 and the record below, we have concluded that the judgments

of the Superior Court must be affirmed.

                                  Convictions and Sentences

       The record reflects that a Sussex County grand jury indicted Benge for

offenses arising from an October 2002 assault on his former wife and shooting of

her friend (“Sussex County Case A”). Three charges were later severed from the

indictment and brought in another case (“Sussex County Case B”). In February

2003, a New Castle County grand jury indicted Benge for offenses arising from his

installation of a recording device in his former wife’s residence (“New Castle

County Case”).

       After a trial in Sussex County Case A, Benge was found guilty of Assault in

the Second Degree, Criminal Trespass in the First Degree, and Offensive

Touching. Benge was sentenced as follows: (i) for Assault in the Second Degree,

eight years of Level V incarceration with credit for 356 days previously served,

followed by six months of Level IV work release; (ii) for Criminal Trespass in the

First Degree, one year of Level V incarceration; and (iii) for Offensive Touching,

1
  Supr. Ct. R. 15(a)(vi) (providing that “[a] party may, by letter to the Clerk, bring to the Court's
attention pertinent cases decided after a party’s final brief is filed or after the case is under
submission for decision”).

                                                  3
thirty days of Level V incarceration. This Court affirmed the judgment on direct

appeal.2

         On January 13, 2004, Benge pled guilty in the New Castle County Case to

three counts of Unlawful Interception of Communications, two counts of Burglary

in the Third Degree, and one count of Attempted Unlawful Interception of

Communications.         Benge was sentenced as follows: (i) for the first count of

Unlawful Interception of Communications, five years of Level V incarceration

suspended after three years for one year of Level III probation; (ii) for each of the

counts of Burglary in the Third Degree, three years of Level V incarceration

suspended immediately for one year of Level II probation; (iii) for each of the

remaining counts of Unlawful Interception of Communications, one year of Level

V incarceration suspended immediately for one year of Level II probation; and (iv)

for Attempted Unlawful Interception of Communications, one year of Level V

incarceration suspended immediately for one year of Level II probation. The

sentencing order provided that the Level II and Level III probation was concurrent

to the Level III probation imposed in Sussex County Case B. This Court affirmed

the judgment on direct appeal.3



2
    Benge v. State, 2004 WL 2742314 (Del. Nov. 15, 2004).
3
    Benge v. State, 2004 WL 2743431 (Del. Nov. 12, 2004).

                                               4
      On January 20, 2004, Benge pled guilty to Possession of a Deadly Weapon

by a Person Prohibited and two counts of Criminal Contempt (based on violation

of a Family Court protection from abuse order) in Sussex County Case B. Benge

was sentenced as follows: (i) for Possession of a Deadly Weapon by a Person

Prohibited, two years of Level V incarceration, suspended after six months for

eighteen months Level III probation; and (ii) for each count of Criminal Contempt,

fifteen days of Level V incarceration. The original sentencing order provided that

the Level III probation was to be consecutive.      Benge did not appeal these

convictions. After Benge filed a Motion for Correction of Sentence and two

Motions for Reargument, the probation imposed in Sussex County Case B was

modified to one year of Level III probation to run concurrently, not consecutively

as the State contends, with the Level IV work release imposed in Sussex County

Case A.

                       New Castle County Modification Motion

      On December 3, 2013, Benge filed a Motion for Modification of Probation

in the New Castle County Case.        Benge sought reduction of the level of

supervision from Level III to Level I. The Superior Court denied the Motion for

Modification of Probation. The Superior Court noted that the Department of

Correction’s (“DOC”) authority to handle the flow of offenders between levels of

probation had been expanded, the DOC had specific guidelines and protocols for


                                        5
the flow of offenders between levels of probation, and that Benge had not claimed

that anything went wrong with the DOC’s probation processes.              Under the

circumstances, the Superior Court concluded that the DOC was in a better position

to determine whether reduction of Benge’s supervision level was appropriate and

that Benge should apply to the DOC for a reduction in the level of his supervision.

      After Benge filed a Motion for Reargument, in which he contended that the

DOC had told him that he must remain at Level III due to the nature of his charges

rather than the results of an objective risk assessment, the Superior Court requested

clarification from the office of Probation and Parole. The Director of Probation

and Parole informed the Superior Court that a Domestic Violence Screening

Instrument was conducted, Benge scored high on the risk assessment, Benge was

thus classified as subject to Level III supervision, and Benge was eligible for re-

assessment in November 2014. In light of this information, the Superior Court

concluded that Benge was appropriately placed on Level III probation and denied

the Motion for Reargument.

                       Sussex County Modification Motion

      On January 24, 2014, Benge filed a Motion for Modification of Probation in

Sussex County Case B. Benge sought: (i) reduction of the level of supervision

from Level III to Level I for the remainder of his probation; (ii) an order that he

had satisfied a sentencing condition requiring completion of a certified domestic


                                         6
violence program by completing an equivalent program while serving his Level V

sentence or removal of the domestic violence program condition from the

sentencing order; and (iii) an order directing the DOC to recalculate the length of

his probation based on recent amendments to 11 Del. C. § 4383. The Superior

Court denied the Motion for Modification of Probation on February 14, 2014.

      The Superior Court was satisfied that the sentence imposed was appropriate

and was unwilling to micromanage the DOC’s handling of the flow of offenders

between different levels of probation or its oversight and determination of whether

an offender had satisfied special conditions such as the completion of a domestic

violence program.     The Superior Court also concluded that the DOC was

responsible for determining whether Benge was entitled to reduction of his

probation under 11 Del. C. § 4383 and referred Benge to the DOC. Benge filed a

Motion for Reargument, which was denied on April 29, 2014. These appeals

followed.

                         Modifications Properly Denied

      Under Superior Court Criminal Rule 35(b), the Superior Court “may . . .

reduce the fine or term or conditions of partial confinement or probation, at any

time.” A motion for modification of probation is not subject to the ninety day




                                        7
limitation applicable to a motion for reduction of a “sentence of imprisonment.”4

We review the denial of a motion for modification of sentence and the denial of a

motion for reargument for abuse of discretion.5 “Under this highly deferential

standard,” the test is whether “the trial court acted within a zone of reasonableness

or stayed within a ‘range of choice.’”6

       Benge argues that the Superior Court erred, as a matter of law, by holding

that recent amendments to Chapter 43 of Title 11 (Sentencing, Probation, Parole

and Pardons) required complete deference to the probation processes and

determinations of the DOC and precluded the Superior Court from modifying

Benge’s probation under Superior Court Criminal Rule 35(b). We do not read the

decisions of the Sussex County Superior Court or the New Castle County Superior

Court as so holding. In denying Benge’s Motion for Modification of Probation in

Sussex County Case B, the trial judge, who imposed the original sentence in

Sussex County Case B, held that he remained satisfied the sentence imposed was

4
  Super. Ct. Crim. R. 35(b) (providing that the court may reduce sentence of imprisonment on
motion made within ninety days after sentence is imposed and that the court will only consider
such a motion made after ninety days in “extraordinary circumstances or pursuant to 11 Del. C. §
4217”); Teat v. State, 2011 WL 4839042, at *1 (Del. Oct. 12, 2011) (finding Superior Court
erred in holding that motion for modification of Level IV time was subject to ninety day period);
Johnson v. State, 2008 WL 187958, at *1 (Del. Jan. 9, 2008) (finding Superior Court erred in
holding the motion to reduce probation was untimely).
5
 State v. Lewis, 797 A.2d 1198, 1202 (Del. 2002); Parker v. State, 2001 WL 213389, at *1 (Del.
Feb. 26, 2001).
6
 State v. Lewis, 797 A.2d at 1202 (quoting Kern v. TXO Prod. Corp., 738 F.2d 968 (8th Cir.
1984)).

                                               8
“reasonable and appropriate.” The Sussex County Superior Court further held the

DOC had specific guidelines and protocols for the flow of offenders between

levels of probation, it would not micromanage the DOC, and Benge could seek

relief from the DOC.

      The Sussex County Superior Court did not hold that it was bound by the

DOC’s processes regarding the supervision levels of probation or that it was

unable to modify the supervision level of Benge’s probation. The Superior Court

was simply unwilling to interfere with the processes of the DOC in a situation

where the Superior Court had previously concluded that Level III probation was an

appropriate part of Benge’s sentence and remained satisfied with the terms of

sentence. Under these circumstances, the Sussex County Superior Court did not

act unreasonably in denying Benge’s motion to reduce the level of his supervision

from Level III to Level I.

      Similarly, the New Castle County Superior Court did not hold that it was

unable to modify Benge’s probation or that it was required to defer completely to

the DOC. The New Castle County Superior Court noted that Benge had presented

a case for “outstanding rehabilitation,” but also recognized the DOC’s increased

authority to reclassify an offender’s Level I, II, or III supervision level with the

assistance of an objective classification tool and that Benge had not identified any

issues with the DOC’s handling of his probation. Under these circumstances, the


                                         9
New Castle County Superior Court concluded that the DOC was in a better

position to determine whether it was appropriate for the supervision level of

Benge’s probation to be reduced to Level I and denied Benge’s Motion for

Modification of Probation. The New Castle County Superior Court did not act

unreasonably in reaching this decision, given the position and authority of the

DOC and the absence of a claim that the DOC had ignored or mishandled a request

for reduction in supervision level from Benge.

                         Rearguments Properly Denied

      In his Motions for Reargument, Benge claimed that he had asked a probation

officer if his level of supervision could be reduced and was informed that

reclassification was not possible based on the seriousness of his charges, rather

than the results of an objective risk assessment. The New Castle County Superior

Court then requested clarification from the office of Probation and Parole and was

informed that a Domestic Violence Screening Instrument was conducted, Benge

scored high on the risk assessment and was thus classified as subject to Level III

supervision, and Benge was eligible for re-assessment in November 2014. In light

of this information, the New Castle County Superior Court concluded that Benge

was appropriately placed on Level III probation and denied the Motion for

Reargument.




                                        10
         The Sussex County Superior Court, which had held Benge’s Motion for

Reargument in abeyance pending the decision of the New Castle County Court as

requested by Benge, then denied Benge’s Motion for Reargument. The purpose of

a motion for reargument is to request that the trial court “reconsider whether it

overlooked applicable legal precedent or misapprehended the law or facts in such a

way as to affect the outcome of the case.”7 Benge has not shown that the Superior

Court overlooked applicable legal precedent or misapprehended the law or facts in

such a way as to affect the outcome of his cases and therefore, we find no abuse of

discretion in the denial of the Motions for Reargument.

                               Probation Calculation Clarified

         We turn to Benge’s claim that the length of his probation has been

miscalculated. Benge raised this claim in Sussex County Case B, but not the New

Castle County Case. Based upon the record, it appears that Benge completed the

Level V portion of his sentences in Sussex County Case A and Sussex County

Case B by June 10, 2012 and then began serving his three year Level V sentence in

the New Castle County Case. On March 18, 2013, less than a year after starting

his three year Level V sentence in the New Castle County Case, Benge began

serving the Level IV work release portion of the Sussex County Case A sentence.



7
    Melton v. State, 2013 WL 4538071, at *1 (Del. Aug. 22, 2013).

                                                11
       The one year of probation imposed in the New Castle County Case and the

one year of probation imposed in Sussex County Case B also began running at that

time. Benge completed Level IV work release on August 5, 2013. In addition to

the terms of probation imposed by the trial courts, it appears Benge was released

early from his Level V sentence in the New Castle County Case based on good

time credits and was therefore deemed to be on probation until the expiration of the

maximum term of that sentence, which would be three years from the time he

began serving the Level V sentence in June 2012 (or June 2015, which is

consistent with the maximum expiration date that appears in the DOC status

reports in the record).8 The State acknowledges that Benge’s conditional release

time and probation run concurrently under the recently amended 11 Del. C.

4383(c),9 not consecutively as the Director of Probation and Parole informed the

New Castle County Superior Court in April, and has confirmed that with the DOC.

                                Earned Credit Compliance

       Benge claims that the DOC has failed to reduce his probation by earned

compliance credit he is entitled to under 11 Del. C. § 4383. Under Section


8
  11 Del. C. § 4348 (“A person released on or after August 8, 2012, having served that person's
term or terms in incarceration, less such merit and good behavior credits as have been earned,
shall, upon release, be deemed as released on probation until the expiration of the maximum term
or terms for which the person is sentenced.”).
9
 Section 4383(c) provides that “[f]or any offender released on or after August 8, 2012, a period
of conditional release shall be served concurrently with the probationary period.”

                                              12
4383(a), probation “may be reduced by earned compliance credit under the

provisions of this chapter and rules and regulations adopted by the Department of

Corrections.”10 A person on probation “may earn up to 30 days of credit for 30

days of compliance with conditions of supervision, not to exceed half of their

probationary period.”11             Earned compliance credit is not available for certain

categories of offenses, including categories of offenses set forth in rules and

regulations adopted by the DOC.12               Probation and Parole adopted regulations

effective August 1, 2014 that provided offenders who were assessed as high risk

could not accrue earned compliance credit and that excluded sentences for

domestic violence offenses from accruing earned compliance credit.

          In addressing Benge’s claim that he was entitled to earned compliance credit

under Section 4383, the Sussex County Superior Court concluded that the DOC

was responsible for making that determination and that the Superior Court did not

monitor earned compliance credit. The proper procedural vehicle for a challenge

to the DOC’s calculation or application of good time credit is a petition for a writ

of mandamus.13 A writ of mandamus allows the Superior Court to compel a public


10
     11 Del. C. § 4383(a).
11
     11 Del. C. § 4383(b).
12
     See 11 Del. C. § 4383(d)(4).
13
   Walls v. State, 2010 WL 5393996, at *1 (Del. Dec. 28, 2010) (affirming denial of claim that
defendant was entitled to application of good time credit because proper procedural vehicle was
                                                 13
agency to perform a duty when the petitioner has a clear right to performance of

the duty, no other adequate remedy is available, and the public agency has

arbitrarily failed or refused to perform its duty.14

         Benge suggests that a petition for a writ of mandamus is only necessary

when an incarcerated individual files a Superior Court Criminal Rule 35(a) motion

to correct an illegal sentence based on good time credit under 11 Del. C. § 4381

and is not necessary when an individual like himself files a Superior Court

Criminal Rule 35(b) motion to modify probation based on earned compliance

credit under 11 Del. C. § 4383. We disagree. The claim underlying both situations

is a challenge to the DOC’s calculation or application of credit earned while an

individual is incarcerated or while on probation.

         A petition for a writ of mandamus is the appropriate vehicle for Benge’s

claim that his probation should be reduced by earned compliance credit.

Accordingly, the Sussex County Superior Court did not err in denying Benge’s




writ of mandamus); Hawkes v. State, 2009 WL 3087271, at *1 (Del. Sept. 28, 2009) (affirming
denial of motion to compel the DOC to recalculate defendant’s good time credit because writ of
mandamus was proper vehicle); Pasquale v. State, 2007 WL 2949140, at *1 (Del. Oct. 11, 2007)
(affirming denial of claim that DOC failed to apply proper amount of good time credit because
defendant had to bring petition for writ of mandamus); Ortiz v. State, 2007 WL 1885122, at *1
(Del. July 2, 2007) (affirming denial of claim challenging DOC’s failure to apply good time
credits and requesting that Superior Court compel such application because defendant should
have filed petition for writ of mandamus).
14
     Pasquale v. State, 2007 WL 2949140, at *1.

                                                  14
Motion for Modification of Probation and Motion for Reargument based on his

claim that he was entitled to earned compliance credit.

                                    Conclusion

      The judgments of the Superior Court are affirmed.




                                        15
