          IN THE SUPREME COURT OF THE STATE OF DELAWARE

WARD T. EVANS,             §
                           §                        No. 257, 2016
   Petitioner Below,       §
   Appellant,              §                        Court Below: Superior Court
                           §                        of the State of Delaware
   v.                      §
                           §
COMMISSIONER ROBERT COUPE, §                        C.A. No. K16M-04-017
                           §
   Respondent Below,       §
   Appellee.               §

                             Submitted: June 24, 2016
                             Decided:   August 31, 2016

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

                                           ORDER

       This 31st day of August 2016, it appears to the Court that:

       (1)     Following his 1982 conviction in the Superior Court on one count of

Rape, Evans was sentenced to life in prison with the possibility of parole.1 On

direct appeal this Court affirmed the Superior Court’s judgment.2 Since then

Evans has challenged his conviction and sentence in nearly two dozen unsuccessful

state and federal court applications for relief. In 1989, this Court enjoined Evans




1
  The Court has taken judicial notice of the criminal proceedings in State v. Evans, Del. Super.,
Cr. ID No. 88K01678DI.
2
  Evans v. State, 1984 WL 180811 (Del. June 21, 1984).
from filing a further postconviction application without the Court first determining

that the proposed application was “neither repetitions nor frivolous.”3

       (2)    On April 14, 2016, Evans filed a complaint in the Superior Court

seeking the issuance of a writ of mandamus to the Department of Correction

(“DOC”).      Evans claimed that the DOC had failed or refused to approve statutory

and meritorious good time credits to which he is entitled. By order dated April 20,

2016, the Superior Court dismissed the complaint as legally frivolous after finding

that Evans’ underlying claim that he is entitled to good time credit was rejected by

this Court in 2005 and the Delaware District Court in 2010.4 Evans filed a motion

for reargument of the Superior Court’s dismissal, arguing that a recent DOC policy

addressing the application of good time credit warranted reconsideration of his

request for relief.5 By order dated May 13, 2016, the Superior Court denied the

motion for reargument as without merit, and this appeal followed.

       (3)    The Superior Court may issue a writ of mandamus to the DOC to

compel the performance of a duty if the petitioner can show (i) a clear right to the

performance of a duty; (ii) an arbitrary refusal to perform the duty, and (iii) that no




3
  Evans v. State, 1989 WL 47828, at *2 (Del. April 27, 1989).
4
  See Evans v. Coupe, 2016 WL 1608489 (Del. Super. April 20, 2016) (citing Evans v. State, 872
A.2d 539 (Del. 2005) and Evans v. Phelps, 722 F.Supp.2d 523 (D. Del. 2010)).
5
  See Dep’t of Corr., Policy Manual, Policy Number 7.2, available at
http://doc.delaware.gov/downloads/policies/policy_7-2.pdf.
                                              2
other adequate remedy is available.6                In this case, because Evans cannot

demonstrate that the DOC has failed or refused to perform a duty owed to him, his

mandamus petition was properly dismissed as legally frivolous and the motion for

reargument was properly denied. As the Superior Court correctly determined,

Evans is not entitled to good time credits over and above what has already been

applied to determine the date he became eligible for parole, and the recent DOC

policy does not change that result.7

       (4)     When filing this appeal, Evans filed a motion to proceed in forma

pauperis (“IFP motion”) seeking a waiver of the filing fee. The State opposes a

waiver of the filing fee. Whether to grant or deny a waiver of the filing fee is

within the sound discretion of the Court.8 In this case, having considered the IFP

motion, the response to the motion, and a reply to the response, the Court has

determined that the motion should be granted and the fee waived. The Court

further concludes, however, that for the reasons stated in the Superior Court’s

orders of April 20 and May 13, 2016, the dismissal of Evans’ complaint as legally

frivolous and the denial of his motion for reargument should be affirmed.



6
   Smith v. McBride, 2016 WL 4191928 (Del. Aug. 4, 2016) (citing Clough v. State, 686 A.2d
158, 159 (Del. 1996)).
7
   It appears that Evans became eligible for parole in 1993. He has applied for parole three times
and been denied. Evans, 872 A.2d at 542.
8
  See 10 Del. C. § 8802(d) (“Nothing in this chapter shall be interpreted to preclude an individual
from filing an action in forma pauperis if determined to be appropriate by the court, subject to
the limitations set forth in § 8804(f).”).
                                                3
Moreover, the Court cautions Evans that the affirmance of the Superior Court’s

judgment in this case qualifies as a strike under the “three strikes rule” in 10 Del.

C. § 8804(f).9

       NOW, THEREFORE, IT IS ORDERED that the motion to proceed in forma

pauperis is GRANTED. The judgment of the Superior Court is AFFIRMED, sua

sponte, under Rule 25(c).10 The motion to compel appellee to file an answering

brief is DENIED.11

                                              BY THE COURT:

                                              /s/ Collins J. Seitz, Jr.
                                                      Justice




9
  See 10 Del. C. § 8804(f) (“In no event shall a prisoner file a complaint or appeal of a judgment
arising from a complaint brought in forma pauperis if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or an appeal in a
federal court or constitutional or statutory court of the State that was dismissed on the grounds
that it was frivolous, malicious or failed to state a claim upon which relief may be granted unless
the prisoner is under imminent danger of serious physical injury at the time the complaint is
filed.”).
10
   See Del. Supr. Ct. R. 25(c) (permitting the Court to affirm a trial court’s judgment, sua sponte,
if it is manifest on the face of the opening brief that the appeal is without merit).
11
   That said, the State made well-founded arguments that Evans should not have been granted in
forma pauperis status because he did not file a complete and accurate application. The reality is
that, after close consideration, we concluded that it was more efficient to address the merits. We
caution Evans that if he files a non-compliant application in the future, the Court will not hesitate
to deny him the right to proceed in forma pauperis.

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