              IN THE SUPREME COURT OF THE STATE OF DELAWARE

SHANE E. McCREARY,                          §
                                            §      No. 405, 2016
         Defendant Below,                   §
         Appellant,                         §      Court Below—Superior Court of the
                                            §      State of Delaware
         v.                                 §
                                            §      Cr. ID No. 1410015328
STATE OF DELAWARE,                          §
                                            §
         Plaintiff Below,                   §
         Appellee.                          §

                              Submitted: August 19, 2016
                              Decided:   October 24, 2016

Before HOLLAND, VALIHURA and VAUGHN, Justices.

                                          ORDER

         This 24th day of October 2016, upon consideration of the appellant’s opening

brief, the appellee’s motion to affirm, and the Superior Court record, it appears to

the Court that:

         (1)    On July 31, 2015, the Superior Court sentenced the appellant, Shane

E. McCreary, effective October 22, 2014, to a total of six years of unsuspended

mandatory Level V incarceration—three years each on two counts of Robbery in

the First Degree—followed by six months at Level IV, DOC discretion, and two

years of concurrent Level III probation.1



1
    McCreary was also given suspended sentences on two counts of Robbery in the Second Degree.
      (2)    While at Level V, McCreary is required to successfully complete a

Level V substance abuse program (hereinafter “Program”).               Reference to the

Program in the written sentence order is in the section of the order imposing the

first three-year sentence for the first count of Robbery First Degree.

      (3)    On July 11, 2016, McCreary filed a “motion for rule to show cause”

(hereinafter “Motion”) asking the Superior Court to issue an order directing the

Department of Correction (“DOC”) to show cause why it should not be held in

contempt of court for violating the July 31, 2015 sentence order.           According to

McCreary, because the Program is associated with the three-year sentence imposed

for the first count of Robbery in the First Degree, the DOC is required to place him

in the Program within the first three years of the sentence. By order dated July 19,

2016, the Superior Court denied the Motion. This appeal followed.

      (4)    When the Superior Court imposes a sentence consisting of Level V

incarceration with decreasing levels of supervision, each component of the

sentence is integral to the court’s overall sentencing plan.2 To maximize the

effectiveness of a Level V substance abuse program and thus facilitate a

defendant’s transition to Level IV, the DOC typically will sequence a sentence so

that a defendant is placed in the program close to the defendant’s release from



2
 Smith v. State, 2007 WL 1599988 (Del. June 5, 2007) (citing Defoe v. State, 750 A.2d 1200,
1202 (Del. 2000)).

                                            2
Level V.3 Placing an inmate within the prison system is within the wide spectrum

of the DOC’s discretionary actions.4

         (4)     In his opening brief on appeal, McCreary continues to argue that he is

entitled to a show cause order for the DOC’s failure to comply with the July 31,

2015 sentence order. We agree with the State’s position on appeal that McCreary,

in effect, seeks mandamus relief.5

         (5)     The Superior Court has the discretion to issue a writ of mandamus to

the DOC, but only when the petitioner has demonstrated a clear right to the

performance of a duty.6            In this case, we conclude that McCreary has not

demonstrated that the DOC has a duty to place him in the Program within the first

three years of his six-year Level V sentence.7

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

GRANTED. The judgment of the Superior Court is AFFIRMED.

                                              BY THE COURT:

                                              /s/ Karen L. Valihura
                                                     Justice


3
 See Smith v. McBride, 2016 WL 613839 (Del. Super. Feb. 3, 2016) (discussing DOC practice),
aff’d, 2016 WL 4191928 (Del. Aug. 4, 2016).
4
 Bagwell v. Prince, 1996 WL 470723, at *2 (Del. Aug. 9, 1996) (citing Meachum v. Fano, 427
U.S. 215, 225 (1976)).
5
    See 10 Del. C. § 564 (governing mandamus proceedings in Superior Court)
6
    Id. Clough v. State, 686 A.2d 158, 159 (Del. 1996).
7
    Accord Smith, 2016 WL 4191928 (Del. Aug. 4, 2016), supra note 3.

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