IN THE SUPREME COURT OF THE STATE OF DELAWARE

WARD T. EVANS, § § No. 257, 2016 Petitioner Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § COMMISSIONER ROBERT COUPE, § C.A. No. K16M-04-017 § Respondent Below, § Appellee. § Submitted: June 24, 2016 Decided: August 31, 2016

Before STRINE , Chief Justice; HOLLAND , and SEITZ , Justices.

ORDER

This 31 st day of August 2016, it appears to the Court that: (1) Following his 1982 conviction in the Superior Court on one count of Rape, Evans was sentenced to life in prison with th e possibility of parole. 1 On direct appeal this Court affirmed the Superior Cour t’s judgment. 2 Since then Evans has challenged his conviction and sentence in nearly two dozen unsuccessful state and federal court applications for relief. I n 1989, this Court enjoined Evans

1 The Court has taken judicial notice of the crimina l proceedings in State v. Evans , Del. Super., Cr. ID No. 88K01678DI. 2 Evans v. State , 1984 WL 180811 (Del. June 21, 1984).2

from filing a further postconviction application wi thout the Court first determining that the proposed application was “neither repetiti ons nor frivolous.” 3 (2) On April 14, 2016, Evans filed a complaint in t he Superior Court seeking the issuance of a writ of mandamus to the D epartment of Correction (“DOC”). Evans claimed that the DOC had failed o r refused to approve statutory and meritorious good time credits to which he is en titled. By order dated April 20, 2016, the Superior Court dismissed the complaint as legally frivolous after finding that Evans’ underlying claim that he is entitled to good time credit was rejected by

this Court in 2005 and the Delaware District Court in 2010. 4 Evans filed a motion for reargument of the Superior Court’s dismissal, a rguing that a recent DOC policy addressing the application of good time credit warr anted reconsideration of his request for relief. 5 By order dated May 13, 2016, the Superior Court d enied the motion for reargument as without merit, and this ap peal followed. (3) The Superior Court may issue a writ of mandamus to the DOC to compel the performance of a duty if the petitioner can show (i) a clear right to the performance of a duty; (ii) an arbitrary refusal to perform the duty, and (iii) that no

3 Evans v. State , 1989 WL 47828, at *2 (Del. April 27, 1989). 4 See Evans v. Coupe , 2016 WL 1608489 (Del. Super. April 20, 2016) (cit ing Evans v. State , 872 A.2d 539 (Del. 2005) and Evans v. Phelps , 722 F.Supp.2d 523 (D. Del. 2010)). 5 See Dep’t of Corr., Policy Manual, Policy Number 7.2, available at http://doc.delaware.gov/downloads/policies/policy_7 -2.pdf.3

other adequate remedy is available. 6 In this case, because Evans cannot demonstrate that the DOC has failed or refused to p erform a duty owed to him, his mandamus petition was properly dismissed as legally frivolous and the motion for reargument was properly denied. As the Superior Co urt correctly determined, Evans is not entitled to good time credits over and above what has already been applied to determine the date he became eligible fo r parole, and the recent DOC policy does not change that result. 7 (4) When filing this appeal, Evans filed a motion to proceed in forma pauperis (“IFP motion”) seeking a waiver of the filing fee. The State opposes a waiver of the filing fee. Whether to grant or deny a waiver of the filing fee is

within the sound discretion of the Court. 8 In this case, having considered the IFP motion, the response to the motion, and a reply to the response, the Court has determined that the motion should be granted and th e fee waived. The Court further concludes, however, that for the reasons st ated in the Superior Court’s orders of April 20 and May 13, 2016, the dismissal of Evans’ complaint as legally frivolous and the denial of his motion for reargume nt should be affirmed.

6 Smith v. McBride , 2016 WL 4191928 (Del. Aug. 4, 2016) (citing Clough v. State , 686 A.2d 158, 159 (Del. 1996)). 7 It appears that Evans became eligible for parole in 1993. He has applied for parole three times and been denied. Evans , 872 A.2d at 542. 8 See 10 Del. C. § 8802(d) (“Nothing in this chapter shall be inter preted to preclude an individual from filing an action in forma pauperis if determined to be appropriate by the court, subj ect to the limitations set forth in § 8804(f).”).4

Moreover, the Court cautions Evans that the affirma nce of the Superior Court’s judgment in this case qualifies as a strike under t he “three strikes rule” in 10 Del.

C. § 8804(f). 9 NOW, THEREFORE, IT IS ORDERED that the motion to pr oceed in forma pauperis is GRANTED. The judgment of the Superior Court is AFFIRMED, sua sponte , under Rule 25(c). 10 The motion to compel appellee to file an answerin g

brief is DENIED. 11

BY THE COURT: /s/ Collins J. Seitz, Jr. Justice

9 See 10 Del. C. § 8804(f) (“In no event shall a prisoner file a co mplaint or appeal of a judgment arising from a complaint brought in forma pauperis if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any fa cility, brought an action or an appeal in a federal court or constitutional or statutory court of the State that was dismissed on the grounds that it was frivolous, malicious or failed to state a claim upon which relief may be granted unless the prisoner is under imminent danger of serious ph ysical injury at the time the complaint is filed.”). 10 See Del. Supr. Ct. R. 25(c) (permitting the Court to a ffirm a trial court’s judgment, sua sponte , if it is manifest on the face of the opening brief that the appeal is without merit). 11 That said, the State made well-founded arguments t hat Evans should not have been granted in forma pauperis status because he did not file a com plete and accurate application. The reality is that, after close consideration, we concluded that it was more efficient to address the merits. We caution Evans that if he files a non-compliant appl ication in the future, the Court will not hesitate to deny him the right to proceed in forma pauperis.