Submitted: May 15, 2012
Upon Petitioners' Writ of Certiorari for Review of Decision of Board of Parole.
Andre M. Beauregard, Esquire of Brown Shiels & O'Brien, LLC, Dover, Delaware; attorney for the Petitioners.
Elio Battista, Jr., Esquire, Paul R. Wallace, Esquire and James T. Wakley, Esquire, Department of Justice, Wilmington, Delaware; attorneys for the Respondent.
Prothonotary Andre M. Beauregard, Esquire
James T. Wakley, Esquire Dwight Holden, Board of Parole
William L. Witham, Jr. Resident Judge
The issue before the Court is whether the Board of Parole committed legal error, exceeded its jurisdiction, or proceeded irregularly. It is noted that these cases have been consolidated for purposes of this Order upon agreement of the parties.
Kenneth Lane ("Lane") and Theodore M. Newhouse, Jr. ("Newhouse") (jointly "Petitioners") bring writs of certiorari appealing their respective decisions by the Board of Parole ("Board"). Petitioners appealed to the Board after their designation as Tier II sex offenders by the Attorney General. The Board determined that the lesser Tier I designation was appropriate for Petitioners. On September 14, 2011, the Court set a briefing schedule in both cases. On October 6, 2011, Petitioners advised the Court that they could not fully brief the matter as the Board failed to produce a transcript or recording of the proceedings. Petitioners therefore filed a rule to show cause as to why their designations should not be dismissed with prejudice for lack of a transcript below. The Court heard oral argument on the rule to show cause on November 10, 2011. On February 21, 2012, the Court issued a decision denying Petitioners' rule to show cause. On February 22, 2012, the Court set identical briefing schedules for Petitioners' cases. The arguments in the cases were combined for the purposes of briefing. Briefing was completed and finally submitted to the Court on May 15, 2012. This is the Court's decision on these consolidated matters.
Standard of Review
The basis for the Superior Court's power to issue writs of certiorari is constitutional. "Review on a writ of certiorari issued by the Superior Court differs fundamentally from appellate review because 'review on certiorari is on the record and the reviewing court may not weigh evidence or review the lower tribunal's factual findings.'" A petitioner for writ of certiorari must meet two prerequisites for the Court to grant review: (1) the judgment must be final, and (2) there is "no other available basis for review."
Should a petitioner meet the two prerequisites, the reviewing court then considers "only those issues historically considered at common law; namely, whether the lower tribunal (1) committed errors of law, (2) exceeded ...