Kellum v. Wharton

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MELVIN KELLUM, )
)
Petitioner, )
)
v. ) C.A. No. N24M-02-095 NEP
)
HON. FERRIS W. WHARTON, )
HON. ALAN G. DAVIS, HON. )
KENNETH S. CLARK, JR., HON. )
KATHLEEN JENNINGS, HON. )
KEVIN O’CONNELL, HON. )
TERRA TAYLOR, TIMOTHY )
G. WILLARD, ESQ., JEFFREY )
HORVATH, COL. MELISSA )
ZEBLEY, and DR. JAMES D. WILSON, )

Respondents.

Submitted: June 17, 2024
Decided: August 5, 2024

ORDER

Upon Respondents’ Motion to Dismiss Petition for Writ of Mandamus
GRANTED

FACTUAL AND PROCEDURAL BACKGROUND1

1. On February 28, 2024, Petitioner Melvin Kellum (“Kellum”)2 filed a
Petition for Writ of Mandamus (the “Petition”) requesting that the Court direct the
Delaware Sentencing Accountability Commission (“SENTAC”) to “promptly make
a recommendation for appellate review of sentences exceeding the sentencing

1
Citations in the form of “(D.I. __)” refer to docket items.
2
Kellum is an inmate at a Delaware correctional institution pursuant to a sentence issued in a
criminal case.
guidelines” and to “direct[] the procedure to be applied retroactively” to July 18,
1984.3
2. In support, Kellum cites to a provision of SENTAC’s enabling statute,
specifically 11 Del. C. § 6581(g) (“Subsection 6581(g)”), which provides that
SENTAC “shall also recommend a procedure or a tribunal for appellate review by
either the defendant or the State when sentences are imposed outside of the
guidelines.”4 He further argues that he “does not have any other adequate remedy
to correct this sentence that was imposed outside of the sentencing range.”5
3. Respondents are members of SENTAC and consist of the Honorable
Ferris W. Wharton, the Honorable Alan G. Davis, the Honorable Kenneth S. Clark,
Jr., Attorney General Kathleen Jennings, Chief Public Defender Kevin O’Connell,
Department of Correction Commissioner Terra Taylor, Timothy G. Willard, Esquire,
Jeffrey Horvath, Colonel Melissa Zebley, and Dr. James D. Wilson (collectively,
“Respondents”).6
4. On May 9, 2024, pursuant to Superior Court Civil Rule 12(b)(6),
Respondents filed a motion to dismiss the Petition (the “Motion”).
5. On June 17, 2024, Kellum filed his response in opposition to the
Motion.

3
Compl. (D.I. 1) [hereinafter “Pet.”] at 1, 10. July 18, 1984, is the date that 11 Del. C. § 6581(g)
was enacted. Del. S.B. 434, 132d Gen. Assem., 64 Del. Laws ch. 402, § 1 (1984).
4
Pet. at 2 (quoting 11 Del. C. § 6581(g)).
5
Id. at 5.
6
Mot. to Dismiss (D.I. 28) at 1. Respondents are named only in the caption of the Petition and
not in the body of the Petition itself. Kellum has named two additional individuals in the caption
of the Praecipe and the Summons—William C. Carpenter, Jr., and Monroe B. Hudson—who are
not named in either the caption or the body of the Petition. In addition, one individual named in
the caption of the Petition, Terra Taylor, is not named in the Praecipe or the Summons. However,
the Court will consider the Respondents in this matter to be only those named in the Petition. See
Tigani v. Fisher Dev. Co., 2022 WL 1039969, at *2 (Del. Super. Apr. 6, 2022) (noting there is no
different set of rules for pro se litigants (citing Draper v. Med. Ctr. of Del., 767 A.2d 796, 799 (Del.
2001)).
2
STANDARD OF REVIEW

6. “Delaware courts have consistently followed the standards of Superior
Court Civil Rule 12(b)(6) when considering motions to dismiss writ of mandamus
petitions.”7 All well-pleaded allegations in a complaint or petition must be accepted
as true.8 In considering any motion under Rule 12(b)(6), however, the Court need
not accept conclusory allegations unsupported by the facts or draw unreasonable
inferences in favor of the non-moving party.9 A petition seeking a writ of mandamus
will survive a motion to dismiss so long as the plaintiff can recover under any
reasonably conceivable set of circumstances.10 Stated differently, a petition is
subject to dismissal if it clearly lacks factual or legal merit.11

APPLICABLE LEGAL STANDARDS

7. “A writ of mandamus is an extraordinary remedy issued … to compel
a lower court, agency, or public official to perform a nondiscretionary or ministerial
duty”12 and may be issued only “when a plaintiff is able to establish a clear legal
right to the performance of a non-discretionary duty.”13 “[W]hen directed to an
administrative agency or public official, mandamus will issue only to require
performance of a clear legal or ministerial duty[,]” that is, “the duty must be
prescribed with such precision and certainty that nothing is left to discretion or
judgment.”14 Even then, “[m]andamus is issuable not as a matter of right, but only

7
Allen v. Coupe, 2016 WL 676041, at *2 (Del. Super. Feb. 18, 2016).
8
Id. (citing Spence v. Funk, 396 A.2d 967, 968 (Del. 1978)).
9
Pfeffer v. Redstone, 965 A.2d 676, 683 (Del. 2009); Windsor I, LLC v. CWCapital Asset Mgmt.
LLC, 238 A.3d 863, 871 (Del. 2020).
10
Allen, 2016 WL 676041, at *2.
11
Id. (citing Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970)).
12
Id. (citing Brittingham v. Town of Georgetown, 113 A.3d 519, 524 (Del. 2015)).
13
Darby v. New Castle Gunning Bedford Ed. Ass’n, 336 A.2d 209, 210 (Del. 1975).
14
Guy v. Greenhouse, 637 A.2d 827, 1993 WL 557938, at *1 (Del. Dec. 30, 1993) (ORDER).
3
in the exercise of sound judicial discretion.”15 This “broad discretion” allows the
Superior Court to deny a petition where, for example, the petitioner has another
remedy available, granting the writ would be inequitable, events after filing render
it moot, or granting the writ would be useless.16

DISCUSSION

8. Upon examination of the Petition, the Court concludes that it cannot
survive Respondents’ motion to dismiss for at least three separate reasons: (1)
Kellum has no clear legal right to the performance of a duty; (2) the duty in question
is discretionary; and (3) issuance of the writ would be futile because it would not
secure Kellum the relief he seeks.
9. The Petition fails to establish that Kellum has a clear right to the duty
he seeks to enforce, that is, SENTAC’s alleged duty to recommend an appellate
procedure. The Petition implies that such a right arises from Kellum’s status as “a
Delawarean.”17 To countenance such an assertion, however, would render
meaningless the requirements of the writ, as every Delaware citizen would then have
a clear right to issuance of the requested writ. The Court will not accept Kellum’s
conclusory allegation that he has such a right.
10. Even if Kellum could establish that he has a clear legal right to
performance of the duty in question, the Petition fails to show that the duty is non-
discretionary or ministerial—that it is “prescribed with such precision and certainty
that nothing is left to discretion or judgment.”18 Were the Court to issue the
requested writ in this case, the members of SENTAC would then be required to

15
Id.
16
Brittingham, 113 A.3d at 524–25.
17
Pet. at 5 (“[T]he Petitioner—a Delawarean—avers that he has a clear right to the enforcement
of § 6581(g).”).
18
Guy, 1993 WL 557938, at *1.
4
deliberate regarding a recommendation for appellate review of sentences imposed
outside the guidelines, but the statute leaves to the discretion of those members the
scope and nature of such a proposal—and the statute makes no provision for the
possibility that the members are unable to reach a consensus on such a
recommendation. Similarly, in Darby v. New Castle Gunning Bedford Education
Association, the Delaware Supreme Court determined that a writ of mandamus could
not be issued to compel a school board to submit to fact-finding where the statute
required mutual agreement between the parties as a condition precedent to fact-
finding, and “[a]greement by its nature presumes the power and discretion to
disagree until and unless there is a meeting of the minds of the parties in the same
intention.”19
11. Finally, Kellum fails to show that issuance of the writ would result in
the remedy he seeks. Kellum alleges in the Petition that he “does not have any other
adequate remedy to correct this sentence that was imposed outside the [SENTAC]
sentencing range.”20 However, were the Court to issue the writ that he has requested,
SENTAC would merely be deliberating with a view to recommending an appellate
review process that the General Assembly would ultimately have to consider and
potentially accept or reject. In addition, as Respondents observe, the Delaware
Supreme Court’s Administrative Directive Number Seventy-Six, which
implemented the SENTAC guidelines, provides that the guidelines are “voluntary
and non-binding; thus no party in a criminal case has any legal or constitutional right
to appeal to any court a statutorily authorized sentence which does not conform to
the sentencing standards.”21 Furthermore, Kellum provides no legal basis for his

19
336 A.2d at 211.
20
Pet. at 5.
21
Admin. Directive No. 76, (Del. Sept. 17, 1987); accord Gaines v. State, 571 A.2d 765 (Del.
1990).
5
assertion that this Court may “direct [SENTAC] to enforce subsection (g)
retroactively.”22 Even if the duty to recommend an appellate review process could
be considered non-discretionary or ministerial, and the above discussion
demonstrates that it could not, this Court could not direct SENTAC to perform a
duty—that is, to recommend an appellate process that would be enforced
retroactively—where the statute itself does not prescribe such a duty.23 Therefore,
the issuance of the requested writ by this Court—even if it could overcome the other
legal obstacles previously described—would result at most in recommendation of a
procedure that would likely be of no benefit to Kellum in his efforts to overturn his
own sentence.
12. For the foregoing reasons, the Petition is subject to dismissal, as it
clearly lacks factual or legal merit.
WHEREFORE, the Motion is GRANTED, and the Petition is DISMISSED.
IT IS SO ORDERED.

NEP:tls
oc: Prothonotary
cc: Melvin Kellum, Pro Se - Via State Mail
Julia Mayer, Deputy Attorney General - Via File & ServeXpress

22
Pet. at 8.
23
The decisions cited by Kellum in furtherance of his argument for retroactive enforcement
support the opposite conclusion. See State v. Page, 2018 WL 731710, at *3 & n.4 (Del. Super.
Jan. 29, 2018) (applying law in effect on date motion was filed); State v. Mills, 2008 WL 484447,
at *1 (Del. Super. Feb. 21, 2008) (applying law in effect on date conviction became final).
6