State of Delaware v. McAllister.
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SUPERIOR COURT OF THE STATE OF DELAWARE JEROME O. H ERLIHY JUDGE D ANIEL L. H E R R M A N N C OURT H OUSE W ILMINGTON , DE 19801-3353 October 3, 2001 Mr. Mel S. M cAllister Delaware Cor rectional Center RD 1 - Box 500 Smyrna, DE 19977 RE: State v. Mel S. McAllister Cr.A. No. IN-91-05-2035 ID No. 91005130 Dear Mr. McAllister: You have filed a motion for ?correction of sentence. T he basis of that motion revolves around 11 Del.C. §1447 and the sentence of fifteen years which I imposed on you on Jan uary 24, 1992 (along w ith the life sentence for fir st degree m urder ). You make two claims. One is that the SENTAC guidelines provide a presumptive sentence of two to five years. You contend this should have been your sentence. This C ourt is n ot bound by those g uidelines an d can im pose any sentence u p to the maximum allowed. 1 The m aximum I could hav e impose d in 1992 was twenty years. Your next claim is that you are entitled to receive good time during that fifteen-year sentence. That cla im is not on e to be m ade thr ough a m otion to cor rect a sentence. Neve rtheless , I will consid er it even though more appropr iately presented by means of a w rit of mandamus. The argument for entitlement to good time is twofold. One, §1447 does not explicitly prohibit the Department of Correction from awarding it to you. Tw o, the recen tly enacted H.B. 174 which does now explicitly bar the award of good time means prior to that bill s enactm ent, you we re entitled to get it. The Court is aware that the Department of Corr ection for many years has not awarded good time for sentences under §1447. But, that is not the basis for this decision. 1 Ward v . State, D el.Sup r. , 5 67 A. 2d 1296 (198 9). State v. Mel S. McAllister Cr.A. No. IN-91-05-2035 ID No. 91005130 Page Two I enclose a copy of a recent decision of this Court in Rust v. Kearney. 2 This decision interpreted statutes other than §1447 but ones which contained the same key language as here. The statutes were drug laws, specifically, 16 Del.C. §4763(a), which says any mandatory minimum ?shall not be subject to suspension and no person shall be eligible for probation or parole during such portion of such minimum term. This Court held in Rust that this language prohibited the Department of Correction from awarding good time. Section 1447 contains virtually identical language, namely, ?[n]o person convicted for a violation of this section sh all be eligible for parole or probation during the period of the sentence imposed. 3 This w as the langu age in effect on April 29, 1991 when you killed Steven Davis. 4 In your case, this Court holds this language has the same effect as found in th e drug statute inter preted in Rust. The language of §1447 bars the Department of Cor rection from awarding you good time. In light of this holding, the legislature s addition of the words ?good time to parole and probation ineligibility changed nothing substantive. T he addition of those words, therefore, only m ade more clear the prohibition on awarding good time. CONCLUSION For the rea sons stated h erein, the motio n for c orr ection of sen tence is DENIED. IT IS SO ORDERED. Sincerely, JOH/ bsb Enclosure Original to Prothonotary 2 Del. Super. , C .A .N o. 01M-0 3-029, Grave s, J. (September 27, 2001). 3 11 Del.C. §1447(b). 4 63 Del. Laws Ch. 412, 56 Del. Laws C. 324.
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