Matter of Panzer

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

IN THE MATTER OF THE § PETITION OF DAVID J. PANZER § No. 413, 2017 FOR A WRIT OF MANDAMUS §

Submitted: October 13, 2017 Decided: November 15, 2017

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

This 15th day of November 2017, upon consideration of David J. Panzer’s

petition for a writ of mandamus and the State’s answer and motion to dismiss, it

appears to the Court that:

(1) Panzer seeks to invoke the original jurisdiction of this Court, under

Supreme Court Rule 43, to issue a writ of mandamus ordering the Superior Court to

review and overturn his convictions for Arson in the Second Degree and Possession

of a Bomb/Incendiary Device. We conclude that Panzer’s petition manifestly fails

to invoke the original jurisdiction of this Court. The petition must therefore be

dismissed.

(2) In May 2014, a Superior Court jury found Panzer guilty of Arson in the

Second Degree and Possession of a Bomb/Incendiary Device. On January 23, 2015,

the Superior Court sentenced Panzer as follows: (i) for Arson in the Second Degree,

eight years of Level V incarceration, suspended for five years of Level IV Home

Confinement, suspended after nine months for two years of Level III probation; and (iii) for Possession of a Bomb/Incendiary Device, five years of Level V

incarceration, suspended for two years of Level III concurrent probation. Panzer did

not appeal the Superior Court’s judgment.

(3) A writ of mandamus will only issue if the petitioner can show: (i) a

clear right to the performance of a duty; (ii) that no other adequate remedy is

available; and (iii) the Superior Court has arbitrarily failed or refused to perform its

duty.1 “[I]n the absence of 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 docket.”2 A petitioner who has an adequate remedy in the appellate

process may not use the extraordinary writ process as a substitute for a properly filed

appeal.3

(4) Panzer has not satisfied any of the criteria for issuance of a writ of

mandamus. He could have obtained review of his convictions by filing a notice of

appeal from his January 23, 2015 sentencing order, but did not do so. Panzer cannot

use the extraordinary writ process as a substitute for a properly filed appeal. There

is no basis for issuance of a writ of mandamus.

1 In re Bordley, 545 A.2d 619, 620 (Del. 1988). 2 Id. 3 In re Noble, 2014 WL 5823030, at *1 (Del. Nov. 6, 2014); Matushefske v. Herlihy, 214 A.2d 883, 885 (Del. 1965)).

2 NOW, THEREFORE, IT IS ORDERED that the State’s motion to dismiss is

GRANTED. The petition for the issuance of a writ of mandamus is DISMISSED.

BY THE COURT:

/s/ Karen L. Valihura Justice