IN THE MATTER OF THE PETITION OF VERNON L. MONTGOMERY FOR A WRIT OF MANDAMUS.
Submitted: December 6, 2018
VALIHURA, SEITZ, and TRAYNOR, Justices.
F. TRAYNOR JUSTICE
petitioner, Vernon L. Montgomery, was indicted in 2017 on
charges of Robbery First Degree and other felony
offenses. In June 2017, the Superior Court granted
Montgomery leave to proceed without counsel and represent
himself in the criminal case. Trial is scheduled to begin on
February 5, 2019.
Montgomery seeks the issuance of a writ of mandamus to compel
the Superior Court to correct a September 20, 2018 ruling in
his case. Montgomery also would have us compel the Superior
Court to dismiss the indictment. The State of Delaware, as
the real party in interest, has filed an answer opposing the
writ of mandamus is an extraordinary remedy issued by this
Court to compel a trial court to perform a
duty. When invoking this Court's original
jurisdiction to issue a writ of mandamus, the burden is upon
the petitioner to establish a clear entitlement to the relief
sought and that no other adequate remedy is
available. Montgomery has failed to carry that burden
in this case.
First, Montgomery has not shown that he has a clear right to
a correction of the Superior Court's September 20, 2018
ruling. Montgomery sought such a correction in October 2018,
when he filed an appeal from the ruling. We dismissed the
appeal for this Court's lack of jurisdiction to hear an
interlocutory appeal in a criminal case. Montgomery cannot
use the extraordinary writ process to overcome that
Second, Montgomery has not shown that the Superior Court has
arbitrarily failed or refused to perform a duty owed to him.
The Superior Court case docket reflects that Montgomery
recently filed a motion seeking a dismissal of the
indictment. That motion and the State's response
were referred to the Trial Judge for action. Absent "a
clear showing of an arbitrary refusal or failure 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
Finally, in the event his Superior Court criminal proceeding
leads to a judgment of conviction, Montgomery has not shown
that he is without an adequate remedy. "The right to
appeal a criminal conviction is generally considered a
complete and adequate remedy to review all of the questions
presented in a criminal proceeding."
THEREFORE, IT IS ORDERED, that the petition for a writ of
mandamus is DISMISSED.
State v. Montgomery, Del.
Super., Cr. ID No. ...