Opinion
No. 174, 1999.
May 24, 1999.
Appeal from the Court of New Castle County.
MANDAMUS DISMISSED.
Unpublished Opinion is below.
IN THE MATTER OF THE PETITION OF DEBRO ABDUL-AKBAR FOR A WRIT OF MANDAMUS. No. 174, 1999. Supreme Court of Delaware. Submitted: May 10, 1999. Decided: May 24, 1999.
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
ORDER
This 24th day of May 1999, upon consideration of the petition for a writ of mandamus filed by Debro Abdul-Akbar and the answer and motion to dismiss filed by the State of Delaware, it appears to the Court that:
(1) In April 1994, Abdul-Akbar pleaded guilty to first degree robbery, two counts of possession of cocaine, and felony shoplifting. In June 1994, Abdul-Akbar was sentenced to ten years at Level V imprisonment, suspended after five years for five years' confinement at a Level IV halfway house, inpatient treatment program, or Crest Program, followed by decreasing levels of probation.
(2) By order dated November 19, 1998, the Superior Court modified Abdul-Akbar's sentence to remove any requirement that he participate in the Crest Program. The court provided, instead, that the Level IV term could be served in work release. By order dated March 26, 1999, the Superior Court held that any Level IV treatment program Abdul-Akbar participated in must be approved by the Department of Correction.
(3) At the present time, Abdul-Akbar has been released to Level III probation and is awaiting his Level IV placement. It appears from the Superior Court docket that Abdul-Akbar has filed two motions for modification of sentence that are pending before the Superior Court.
(4) Abdul-Akbar has filed a petition for a writ of mandamus directed to the Superior Court, his former public defender, and a deputy attorney general. Abdul-Akbar claims that he is serving an "illegal sentence." The basis for the claim is unclear; but it appears that Abdul-Akbar is concerned that his Level IV placement will be in work release instead of in a treatment program of his choice.
(5) This Court's original jurisdiction to issue a writ of mandamus is "limited to instances when the respondent is a court or a judge thereof." This Court is without jurisdiction to issue a writ of mandamus to an assistant public defender or to a deputy attorney general.
In re Hitchens, Del. Supr., 600 A.2d 37, 39 (1991).
(6) To the extent Abdul-Akbar complains about the Superior Court's orders of November 19, 1998, and March 26, 1999, his petition is unavailing. Abdul-Akbar did not exercise his right to file an appeal from either one of those orders. This Court has held repeatedly that the extraordinary writ process cannot be used as a substitute for a timely-filed appeal.
See Matushefske v. Herlihy, Del. Supr., 214 A.2d 883, 885 (1965).
(7) This Court will issue a writ of mandamus to a trial court only when the petitioner can show that there is the clear right to the performance of the duty at the time of the petition, no other adequate remedy is available, and the trial court has failed or refused to perform its duty. Abdul-Akbar has not demonstrated that he is without an adequate legal remedy for his claims or that the Superior Court has arbitrarily failed or refused to perform a duty owed to him. Absent a clear showing that the trial court has arbitrarily failed or refused to act, "this Court will not issue a writ of mandamus to compel a trial court to perform a particular judicial function, to decide a matter in a particular way, or to dictate the control of its docket."
In re Bordley, Del. Supr., 545 A.2d 619, 620 (1988).
Id.
NOW, THEREFORE IT IS ORDERED that the State's motion to dismiss is GRANTED. Abdul-Akbar's petition for a writ of mandamus is DISMISSED.
BY THE COURT:
s/ Joseph T. Walsh, Justice