IN THE SUPREME COURT OF THE STATE OF DELAWARE

KUSHAL KALPAN SHAH f/k/a
GERRON LINDSEY,

§
§
§ No. 662, 2014
Petitioner Below, §
Appellant, §
§ Court Below—Superior Court
V‘ § of the State of Delaware,

ROBERT COUPE, Commissioner  in and for New Castle County

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of the Delaware Department of . C‘A' No' NBM lo 0-- MM]
Correction

Respondent Below,
Appel lee.

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Submitted: February 27, 2015
Decided: April29, 2015

Before STRINE, Chief Justice, VALIHURA, and VAUGHN, Justices.
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This 29lh day of April 2015, upon consideration of the briefs of the parties
and the record below, it appears to the Court that:

(1) The appellant, Kushal Kalpan Shah, ﬁled this appeal from the
Superior Court’s November 3, 2014 opinion granting the appellee’s motion to
dismiss. We conclude there is no merit to the appeal and afﬁrm the judgment of
the Superior Court.

(2) In 2002, Shah pled guilty but mentally ill to one count of Murder in

the First Degree. Shah was placed in the custody of the Delaware Department of

Correction (“DOC”) and/or the Delaware Psychiatric Center (“DPC”) for the
remainder of his natural life. Since sentencing, Shah has remained at the James T.
Vaughn Correctional Center (“JTVCC”) where he receives medical care and
mental health treatment.

(3) On October 9, 2013, Shah filed a petition for a writ of mandamus. In
his petition, Shah argued that the DOC was required to transfer him to the DPC

under 11 Del. C. § 408(b). Section 408(b) provides:

In a trial under this section a defendant found guilty but mentally ill,
or whose plea to that effect is accepted, may have any sentence
imposed which may lawfully be imposed upon any defendant for the
same offense. Such defendant shall be committed into the custody of
the Department of Correction, and shall undergo such further
evaluation and be given such immediate and temporary treatment as is
psychiatrically indicated. The Commissioner shall retain exclusive
jurisdiction over such person in all matters relating to security. The
Commissioner shall thereupon conﬁne such person in the Delaware
Psychiatric Center, or other suitable place for the residential treatment
of criminally culpable persons with a mental illness under the age of
18 who have been found nonamenable to the processes of Family
Court. Although such person shall remain under the jurisdiction of
the Department of Correction, decisions directly related to treatment
for the mental illness for individuals placed at the Delaware
Psychiatric Center, shall be the joint reSponsibility of the Director of
the Division of Substance Abuse and Mental Health and those persons
at the Delaware Psychiatric Center who are directly responsible for
such treatment. The Delaware Psychiatric Center, or any other
residential treatment facility to which the defendant is committed by
the Commissioner, shall have the authority to discharge the defendant
from the facility and return the defendant to the physical custody of
the Commissioner whenever the facility believes that such a discharge
is in the best interests of the defendant. The offender may, by written
statement, refuse to take any drugs which are prescribed for treatment
of the offender’s mental illness; except when such a refusal will

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endanger the life of the offender, or the lives or property of other
persons with whom the offender has contact.l

Shah has made similar claims in previous, unsuccessful motions for habeas corpus
relief, postconviction relief, and sentence correction.2

(4) After Shah requested entry of default judgment on his petition, the
DOC ﬁled a motion to dismiss the petition and opposition to entry of a default
judgment. The DOC contended that Shah had not shown he was entitled to
mandamus relief because the DOC had determined he was a security risk and he
was seeking the same relief in a pending federal lawsuit. At the Superior Court’s
request, the DOC’s counsel provided additional information conceming her delay
in responding to Shah’s petition.

(5) On November 3, 2014, the Superior Court dismissed Shah’s petition
for a writ of mandamus. After analyzing the language of Section 408(b), the
Superior Court concluded that DOC’s exclusive jurisdiction over Shah as to all

security matters meant that the DOC was not required to transfer Shah to DPC for

' 11 Del. C. §408(b).

2 See Shah v. State, 2011 WL 4435682, at *1 (Del. Sept. 23, 2011) (afﬁrming Superior Court’s
denial of motion for correction of sentence in which Shah argued his sentence was illegal
because he should have been conﬁned to the DPC, not the JTVCC, and noting that the Superior
Court had previously rejected Shah‘s argument in denying his requests for habeas corpus and
postconviction relief); Shah v. State, 2011 WL 1366666, at *1 (Del. Super. Ct. Apr. 11, 2011)
(affirming Superior Court’s denial of Shah’s sixth motion for postconviction relief in which Shah

argued his plea agreement was unfulﬁlled because he was not conﬁned to the DPC under 1 1 Del.
C. 408(b)).

psychiatric evaluation before incarceration if it determined that Shah should

3 Because Shah had failed to meet his

remain at JTVCC for security purposes.
burden of showing he was placed in JTVCC for non-discretionary, non-security
purposes, the Superior Court held that Shah had not established a clear legal right
to be transferred to the DPC.‘I In a separate order, the Superior Court denied
Shah’s motion for defaultjudgment.5

(6) On December 1, 2014, Shah filed a notice of appeal from the Superior
Court’s opinion dismissing his petition for a writ of mandamus. Shah did not
appeal the denial of his motion for default judgment. Relying on 11 Del. C. §
408(b) and Sanders v. State,6 Shah argues on appeal that the DOC was required to
conﬁne him to the DPC after his 2002 sentencing, the DOC did not have discretion
to keep him at JTVCC as a security risk, and the Superior Court erred in denying
his petition for mandamus relief.

(7) “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

3 Shah v. Coupe, 2014 WL 5712617, at *2 (Del. Super. Ct. Nov. 3, 2014).
4 1d.
5 Shah v. Coupe, 2014 WL 5712823, at *2 (Del. Super. Ct. Nov. 3, 2014).

6 585 A.2d 117 (Del. 1990).

performance of a duty to which the petitioner has established a clear legal right”?
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.8 A writ of mandamus will not be issued to compel a
discretionary act.9

(8) Having reviewed the record in this case in light of the above legal
principles, we conclude that the Superior Court did not err when it dismissed
Shah’s petition for a writ of mandamus. Although Shah has been incarcerated at
the JTVCC since 2002, it does not appear that Shah sought transfer to the DPC
under 11 Del. C. § 408 until years later. Under these circumstances, Shah has not

shown that the DOC presently has a non-discretionary duty to transfer him to the

DPC under 1 1 Del. C. § 408(b).

7 Clough v. 3mm, 686 A.2d 158, 159 (Del. 1996).
3 In re Bordicy, 545 A.2d 619, 620 (Del. [988).

9 Darby v. New Carrie Gunning Bedfbrd Educ. Ass '11, 336 A.2d 209, 21 1 (Del. 1975).

m.

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

Court is AFFIRMED.

 

