SUBMITTED: January 24, 2014
Peggy J. Marshall, Esquire and Kathryn J. Garrison, Esquire, Department of Justice.
Robert H. Robinson, Jr., Esquire, Office of the Public Defender.
Ryan P. Connell, Esquire, Department of Justice.
Pending before the Court is a petition brought by the State of Delaware ("the State") seeking the issuance of a writ of mandamus to the Board of Parole directing the Board of Parole to reverse its decision to release defendant from Level 5 custody. This is my decision regarding several issues raised by the petition.
On May 24, 2013, defendant Jeffrey W. Barnes ("defendant") pled guilty to his fifth offense of driving under the influence. The Court sentenced him pursuant to 21 Del. C. § 4177(d)(5) and (8). Pursuant to 21 Del. C. § 4177(d)(8), the Court could suspend half of defendant's minimum sentence of 3 years for probation once it imposed the conditions required of 21 Del. C. § 4177(d)(9). Thus, the Court sentenced him to 5 years at Level 5, and suspended defendant's Level 5 sentence after 18 months at Level 5 for 18 months at Level 3 probation. Pursuant to a corrected order dated June 12, 2013, defendant was not required to report to Level 5 until June 21, 2013.
On December 17, 2013, the Board of Parole granted defendant parole. It placed him on Level 3 supervision. Defendant was released from Level 5 incarceration on or about December 18, 2013. As of that time, defendant had served not quite 6 months of his 18 months at Level 5.
The State of Delaware ("the State") filed an emergency motion to correct an illegal sentence, which is an inappropriate motion because the sentence was not illegal. That motion is denied as meritless. It then filed in the criminal matter a petition seeking a writ of mandamus directing the Board of Parole to rescind its decision releasing defendant on parole prior to his serving the 18 months required by 21 Del. C. § 4177(d)(5) and (8). A hearing on the matter was scheduled for December 27, 2013. Prior to that hearing, the Board of Parole reviewed its decision and conceded the State's position.
Defendant appeared at the December 27, 2013 hearing. Defendant maintained that he should be released on parole. The Court continued the hearing and required the State and defendant to submit briefing on the following issues:
1)Is defendant entitled to release on parole pursuant to 11 Del. C. § 4346(a) since he has served 1/3 of his sentence; and
2)If he is not entitled to release before serving his 18 month mandatory sentence, may this mandatory 18 months be reduced by good time earned based upon 11 Del. C. § 4381.
Thereafter, the State filed a Petition for Writ of Mandamus in a civil action, apparently in an effort to place the matter before the Court in the correct procedural posture. Defendant obtained the Public Defender's Office to represent him. His counsel has filed several motions, including a motion to dismiss the State's various filings. The Board of Parole has taken no further steps, nor does the Court expect it to do so in light of its decision not to oppose the State's petition.
Procedurally, the case is rather convoluted. However, the two underlying legal questions are simple and they require ...