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Ward v. Department of Correction
Superior Court of Delaware
November 2, 2018
Donald K. Ward, Petitioner,
Department of Correction, et al., Defendants.
Submitted Date: August 13, 2018
Consideration of Defendants' Motion to Dismiss Petition
for Writ of Mandamus, Granted.
K. Ward, Pro Se. James T. Vaughn Petitioner.
C. Handlon, Esquire, Department of Justice.Attorney General.
this 2nd day of November, 2018, upon consideration of the Mr.
Ward's Petition for Writ of Mandamus, Defendant's
Motion to Dismiss, Mr. Ward's response, and the record in
this case, it appears that:
1. On August 9, 1990, Mr. Ward was convicted of one count of
Unlawful Sexual Intercourse second degree, and two counts of
Unlawful Sexual Intercourse third degree. Mr. Ward was
sentenced for these convictions on October 19, 1990.
2. Mr. Ward's sentence was 20 years at level V for the
first charge including credit for 289 days previously served,
and 10 years at level V for each of the remaining two
charges. These sentences were to be served consecutively. The
record reflects this sentence was pursuant to and in
accordance with the Truth in Sentencing Act of 1989.
3. Mr. Ward argues his sentence should be reduced for good
behavior based on the more generous "good time"
computation provided under 11 Del. C. § 4382 (1987),
rather than a calculation based on the current statute. Mr.
Ward's argument is based on the fact he was placed in
custody in 1989. A review of the record shows Mr. Ward was
placed in custody in 1989, released on bail/bond in March,
1990, and placed back into custody for failure to adhere to
conditions of his release in June, 1990.
4. At the time of Mr. Ward's sentence, individuals
convicted of crimes after January 1, 1990, for crimes
occurring prior to June 30, 1990, had the option to elect to
be sentenced under the Truth in Sentencing Act (TIS) of 1989
rather than under the prior provisions of the
5. Prior to the 1989 TIS, Unlawful Sexual Intercourse in the
second degree was a Class A felony, punishable by life
imprisonment. Unlawful Sexual Intercourse third degree,
a Class B felony was punishable by a term of 3 to 30
6. The test for dismissal under Superior Court Rule 12(b)(6)
is whether the plaintiff may recover under any reasonably
conceivable set of circumstances susceptible of proof under
the complaint. In making its determination, the Court
must accept all well-pleaded allegations in the complaint as
true and draw all reasonable factual inferences in favor of
the non-moving party. Therefore, if the plaintiff can recover
under any conceivable set of facts inferable from the
pleadings, the motion to dismiss will not be
7. The extraordinary writ of mandamus is appropriate only
where the plaintiff is able to establish a clear legal right
to the performance of a non-discretionary duty. The Court may
issue a mandamus to a public official or agency "to
compel the performance of a duty to which the petition has
established a clear right." However, "if a
petitioner cannot show a clear right to the requested
performance of a duty, or if there is any doubt as to a
petitioner's right, a mandamus shall not be issued by
8. In determining the accumulation of good time credits, the
form of the statute in effect at the time of a
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