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