Matter of Montgomery ( 2018 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
IN THE MATTER OF THE §
PETITION OF VERNON L. § No. 575, 2018
MONTGOMERY FOR A WRIT OF §
MANDAMUS. §
Submitted: December 6, 2018
Decided: December 17, 2018
Before VALIHURA, SEITZ, and TRAYNOR, Justices.
ORDER
(1) The petitioner, Vernon L. Montgomery, was indicted in 2017 on
charges of Robbery First Degree and other felony offenses.1 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, 2019.2
(2) 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 petition.
(3) A writ of mandamus is an extraordinary remedy issued by this Court to
compel a trial court to perform a duty.3 When invoking this Court’s original
jurisdiction to issue a writ of mandamus, the burden is upon the petitioner to establish
1
State v. Montgomery, Del. Super., Cr. ID No. 1710001043.
2
Id. Docket at 108.
3
In re Bordley, 545 A.2d 619, 620 (Del. 1988).
a clear entitlement to the relief sought and that no other adequate remedy is
available.4 Montgomery has failed to carry that burden in this case.
(4) 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.5 Montgomery cannot use the extraordinary writ process
to overcome that jurisdictional hurdle.6
(5) 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.7 That motion and the State’s response were referred to the Trial Judge
for action.8 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
4
In re Cannon, 2018 WL 4212136 (Del. Sept. 4, 2018) (citing In re Wittrock, 649 A.2d 1053,
1054 (Del. 1994)).
5
Montgomery v. State, 2018 WL 5291244 (Del. Oct. 23, 2018) (citing Del. Const. art. IV, §
11(1(b); Gottlieb v. State, 697 A.2d 400, 401 (Del. 1997)).
6
Harris v. State, 1987 WL 37710 (Del. June 2, 1987) (citing Hodsdon v. Superior Court, 239 A.2d
222 (1968)).
7
Supra note 1. Docket at 106.
8
Id. Docket at 115.
2
particular judicial function, to decide a matter in a particular way, or to dictate the
control of its docket.”9
(6) 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.”10
NOW, THEREFORE, IT IS ORDERED, that the petition for a writ of
mandamus is DISMISSED.
BY THE COURT:
/s/ Gary F. Traynor
Justice
9
Supra note 3.
10
In re Noble, 2014 WL 5823030 (Del. Nov. 6, 2014) (quoting In re Hovey, 545 A.2d 626, 628
(Del. 1988)).
3