IN RE PETITION OF KOSTYSHYN, 23 A.3d 865 (Del. 2011)

No. 294, 2011.Supreme Court of Delaware.Submitted: June 16, 2011.
Decided: July 12, 2011.

Before BERGER, JACOBS andRIDGELY, Justices.

ORDER
JACK B. JACOBS, Justice.

This 12th day of July 2011, upon consideration of the petition of Peter Kostyshyn for an extraordinary writ and for the appointment of counsel and the State’s response thereto, it appears to the Court that:

(1) The petitioner, Peter Kostyshyn, seeks to invoke the original jurisdiction of this Court, pursuant to Supreme Court Rule 43, to issue writs of mandamus, certiorari, and prohibition to the Superior Court, the Court of Common Pleas, the Public Defender’s Office, and the Attorney General’s Office directing them “to bring forward all court proceedings of CCP case # 0902010151, #0902010157, [1] that ever were held [in the Superior Court and/or] the Grand Jury [and/or the Court of Common Pleas.]” Kostyshyn also requests that counsel be appointed to represent him.

(2) The State of Delaware has filed a motion to dismiss Kostyshyn’s petition on the grounds that it is unsupported by the law or facts. As the State points out, Kostyshyn’s underlying criminal case in No. 0902010151 was an appeal to the Superior Court from Kostyshyn’s criminal conviction in the Court of Common Pleas. The docket in that criminal case reflects that the Superior Court dismissed Kostyshyn’s appeal in February 2011, after giving him notice and an opportunity to be heard, because Kostyshyn failed to pay the required filing fee or, alternatively, to file an application to proceed in forma pauperis in that case. Accordingly, the State argues, Kostyshyn’s criminal conviction in No. 0902010151 is final, and Kostyshyn’s sole remedy is to seek postconviction relief. We agree.[2]

(3) While it is not entirely clear from the face of Kostyshyn’s petition, it appears that he is requesting this Court to issue a writ of mandamus directing the Superior Court to reopen the criminal proceedings in No. 0902010151. A writ of mandamus, however, will only be issued if the complainant can show that: he has a clear right to the performance of a duty; that no other adequate remedy is available; and that the trial court has arbitrarily failed or refused to perform its duty.[3] In this case, Kostyshyn has an adequate remedy in the postconviction process. If Kostyshyn files a postconviction motion in the Court of Common Pleas, he may request the Court of Common Pleas, in its discretion, [4] to appoint counsel to represent him in those proceedings.

NOW, THEREFORE, IT IS ORDERED that the petition for the issuance of an extraordinary writ is DENIED.