State v. Topolski

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) I.D. Nos. 1906017002
) & 1906016532
JUSTIN M. TOPOLSKI, )
)
Defendant. )
)

Submitted: July 14, 2023
Decided: July 28, 2023

MEMORANDUM OPINION AND ORDER

Upon Defendant’s Motion for a Writ of Habeas Corpus
GRANTED IN PART AND DENIED IN PART

Stephen Welch, Jr., Deputy Attorney General, Department of Justice, Dover,
Delaware, Attorney for the State.

John R. Garey, Esquire, John R. Garey, PA, Dover, Delaware, Attorney for
Defendant.

Primos, J.
 Before the Court is a motion for a writ of habeas corpus filed by Defendant
Justin M. Topolski (hereinafter “Mr. Topolski”) on September 27, 2022. At the time
of filing, Mr. Topolski was held in default of a cash bond and committed to the
Delaware Psychiatric Center (the “DPC”) for efforts to restore his competency to
stand trial. After a series of reports from the DPC indicated that Mr. Topolski was
highly unlikely ever to become competent to stand trial, the Court held, in an opinion
issued June 28, 2023, that Mr. Topolski’s continued pre-trial confinement violated
his right to equal protection under the law by confining him indefinitely, on the basis
of potential dangerousness and mental illness, without affording the procedural
protections and burden-of-proof benefits provided in civil commitment proceedings.
The Court requested and received expedited supplemental briefing on how to
implement its decision and grant appropriate relief. After reviewing the briefing, the
Court issued an order on July 17, 2023, converting Mr. Topolski’s bond from cash
to an unsecured amount, with the understanding that the DPC intended to initiate
civil commitment proceedings.1 This is the Court’s written decision addressing each
request for relief raised in the supplemental briefing.
For the reasons below, Mr. Topolski’s motion for an order discharging him
from criminal custody is GRANTED,2 effective via the Court’s prior bond
modification order. Mr. Topolski’s motion for a prospective order prohibiting

1
As explained infra, those civil commitment proceedings have been delayed by Mr. Topolski’s
extradition to New Jersey on unrelated criminal charges.
2
The Court uses the term “criminal custody” to refer to any confinement directly resulting from
the pendency of criminal charges in Delaware in the above-captioned criminal actions.
2
rearrest, reindictment, or recommitment is DENIED WITHOUT PREJUDICE.
Finally, his motion for dismissal of the pending charges against him is DENIED.
PROCEDURAL BACKGROUND3
On September 27, 2022, Mr. Topolski filed a motion for a writ of habeas
corpus seeking release from custody as well as a motion to dismiss the charges
against him on speedy trial grounds.4 On February 7, 2023, the Court issued a
decision concluding that there was not a substantial probability that Mr. Topolski
would be restored to competency in the foreseeable future.5 The Court denied
without prejudice the motion to dismiss on speedy trial grounds and deferred
decision on the petition for habeas relief pending supplemental briefing on the
constitutional issues presented by Mr. Topolski’s continued, and potentially
indefinite, pre-trial confinement.6
On June 28, 2023, the Court issued a Corrected Opinion (hereinafter the
“Opinion”) on Mr. Topolski’s petition for habeas corpus. Applying Jackson v.
Indiana,7 the Court held that continued commitment under the statutes governing
incompetent criminal defendants, 11 Del. C. §§ 403(b) and 404(a), was
unconstitutional in light of Mr. Topolski’s dim prognosis for competency
restoration.8 Specifically, the Court concluded that his continued confinement,
while authorized by Delaware statute, was unconstitutional on equal protection
grounds because it denied him “the procedural protections, and burden-of-proof
benefits, of a civil commitment proceeding.”9

3
For a more detailed summary of the factual and procedural history of this case, the Court refers
to its two prior opinions. See infra notes 5 and 8.
4
Although technically a civil action, the motion for a writ of habeas corpus was filed in the
criminal docket alongside the motion to dismiss the criminal case on speedy trial grounds.
5
State v. Topolski, 2023 WL 1816351, at *9 (Del. Super. Feb. 7, 2023).
6
Id. at *12.
7
406 U.S. 715 (1972).
8
State v. Topolski, 2023 WL 4247356, at *1, *18 (Del. Super. June 28, 2023).
9
Id. at *1.
3
 The Court requested expedited supplemental briefing on how to remedy the
constitutional violation and implement Mr. Topolski’s release from criminal
custody.10 In his supplemental brief dated July 6, 2023, Mr. Topolski requested 1)
an order for his immediate discharge or release; 2) an order forbidding the State from
rearresting, reindicting, or otherwise taking him back into custody for the underlying
criminal charges; and 3) dismissal of the criminal charges against him.11 The State’s
supplemental brief, dated July 7, 2023, explained that any release in connection with
Mr. Topolski’s criminal case—resulting from either 1) dismissal of the charges by
the Court, 2) modification of bond to an unsecured amount, or 3) a nolle prosequi of
the charges by the State—would be followed by the initiation of civil commitment
proceedings by the DPC.12 The State favored the second option, a bond
modification, and also raised the possibility that the Court could impose “a bond
condition that Mr. Topolski agree to treat voluntarily” at the DPC.13
Mr. Topolski filed a response on July 13, 2023, again urging dismissal of the
charges by the Court.14 He argued that dismissal would “give the case finality” and
“free Mr. Topolski from his unconstitutional detention.”15 He opposed the bond
modification option, arguing that it would leave the case “in limbo” and, in effect,
leave Mr. Topolski’s status unchanged if he ended up civilly committed at the DPC
with charges pending against him.16 In its response dated July 14, 2023, the State
argued that the bond modification option was consistent with Mr. Topolski’s request

10
Id. at *18.
11
Def.’s Suppl. Br. (July 6, 2023).
12
State’s Suppl. Br. (July 7, 2023).
13
Id. at 2.
14
Def.’s Reply Br. (July 13, 2023).
15
Id. at 2.
16
Id.
4
for an order discharging him from criminal custody and that the additional requests
for relief went beyond the necessary scope of the Court’s previous ruling.17
On July 17, 2023, the Court issued an order converting Mr. Topolski’s bond
from cash to an unsecured amount.18 The Court declined to impose a bond condition
that Mr. Topolski treat voluntarily with the DPC, reasoning that the equal protection
violation would be cured only if Mr. Topolski was afforded the procedural
protections of the civil commitment process.
In an unexpected turn of events, the bond modification order resulted in Mr.
Topolski’s extradition to New Jersey on unrelated criminal charges pending there.
But for the criminal action pending in New Jersey, the effect of the Court’s July 17,
2023, order would have been Mr. Topolski’s release from Department of Correction
custody and the initiation of civil commitment proceedings by the DPC. In a letter
dated July 25, 2023, the State represented its intention to ensure that the civil
commitment process goes forward in Delaware if and when Mr. Topolski is released
in New Jersey. His continued confinement would then depend on whether the State
demonstrated, by clear and convincing evidence, the criteria for involuntary civil
commitment enumerated in 16 Del. C. § 5011.
DISCUSSION
In light of the Court’s holding in its previous Opinion dated June 28, 2023,
Mr. Topolski can no longer be held on criminal charges, and the State must choose
between civil commitment and release. The Court modified Mr. Topolski’s bond to
an unsecured amount so that the State was free to exercise that choice. The Court
concludes that further relief is not necessary at this time. First, the bond modification
order was, in effect, an order discharging Mr. Topolski from criminal custody.

17
State’s Reply Br. (July 14, 2023).
18
Order (July 17, 2023). The Order is docket entry 83 in Case ID No. 1906017002 and docket
entry 81 in Case ID No. 1906016532.
5
Second, no prospective order is necessary because there is no threat that the State
will violate the terms of the bond modification order or the habeas statute by
rearresting Mr. Topolski. Finally, dismissal of the charges would not have any
immediate effect on Mr. Topolski’s confinement and is not necessary to correct the
error forming the basis for habeas relief. Accordingly, the Court concludes that
dismissal is unnecessary without reaching the question of whether such relief is
within the Court’s habeas power.
I. Discharge or Release
The Delaware habeas corpus statute provides that “[i]f no legal cause be
shown for the imprisonment or restraint, the court or judge shall discharge the party
therefrom.”19 Moreover, any order entered upon a petition for a writ of habeas
corpus “discharging the prisoner from custody or otherwise granting relief to the
prisoner” is appealable by the State,20 implying that the Court has some discretion
in how to craft its relief order.
In its prior Opinion, the Court held that there was no legal basis for Mr.
Topolski’s confinement at that time because further commitment pursuant to 11 Del.
C. §§ 403(b) and 404(a) denied him equal protection under the law.21 Relatedly, the
Court held that the release hearing provided to insanity acquittees pursuant to 11
Del. C. § 403(b) was not adequate to test the legality of his continued confinement.22
Among other differences from the civil commitment process, the Court concluded
that both the text of Section 403(b) and case law construing it compelled the
conclusion that Mr. Topolski would be required to prove his own non-dangerousness

19
10 Del. C. § 6909(a); see also Mitchell v. Grubb, 1994 WL 466208, at *1 (Del. Super. Aug. 12,
1994) (“If no legal cause be shown for the imprisonment, the Court is required to discharge the
Petitioner pursuant to 10 Del.C. § 6909(b) [sic].”).
20
10 Del. C. § 6909(a) (emphasis supplied).
21
Topolski, 2023 WL 4247356, at *1, *18.
22
Id. at *18.
6
by a preponderance of the evidence in order to secure release.23 Accordingly, despite
the unambiguous statutory authorization to hold him until the Court “is satisfied that
the public safety will not be endangered” by his release,24 the effect of the Court’s
holding was to find no legal cause for Mr. Topolski’s present confinement. In other
words, 11 Del. C. § 403(b) could not supply a legal basis for Mr. Topolski’s
continued confinement, and the constitutional violation could be cured by either civil
commitment or release.25
At this time, the Court has already issued an order modifying Mr. Topolski’s
bond to an unsecured amount. That order effectively discharged him from the
custody of the Department of Correction, and—insofar as his custody was based on
the underlying criminal charges—from the DPC as well. In other words, the order
discharged Mr. Topolski from criminal custody pursuant to 10 Del. C. § 6909(a),
while leaving the DPC with the discretion to pursue civil commitment. The Court
does not doubt, and Mr. Topolski has never disputed, that an involuntary civil
commitment proceeding would supply a valid legal cause for future confinement at
the DPC, albeit on the “civil side” of that institution. The Court thus declines to
enter an unconditional order discharging him from DPC custody. Since Mr.
Topolski’s discharge from criminal custody was achieved through the Court’s prior
bail modification order, the petition for an order discharging him from custody is,
and in effect already has been, GRANTED.
II. Order Forbidding Rearrest, Reindictment, or Recommitment
10 Del. C. § 6917 provides, as relevant here, that “[n]o person who has been
discharged on a habeas corpus shall be again imprisoned or restrained for the same

23
Id. at *4, *17–18.
24
Id. at *1 (quoting 11 Del. C. § 403(b)).
25
See State v. Goldsberry, 2000 WL 710090, at *3 (Del. Super. Apr. 26, 2000) (“The day may
come, however, when the State will have to choose between a civil commitment or release.”).
7
cause, unless the person is indicted therefor, or convicted thereof, or committed for
want of bail by some court having jurisdiction of the cause.” The State has
represented that it has no intention of violating the terms of the statute, which it
understands to “prevent[] rearrest unless there is a conviction or a bail increase by a
court having jurisdiction over the case.”26 Here, a conviction is highly unlikely in
the foreseeable future, given Mr. Topolski’s dim prospect of competency restoration,
and reindictment is not a possibility at this time because the original indictment still
stands. Finally, the Court does not intend to modify Mr. Topolski’s bond and thus
resume his confinement on criminal charges. Rather, his continued confinement in
Delaware is entirely contingent on the outcome of involuntary civil commitment and
release proceedings. In the absence of any imminent threat of rearrest or
recommitment on the underlying criminal charges, the Court finds a request for an
order barring those actions unripe at this time.27 Accordingly, Mr. Topolski’s second
request for relief is DENIED WITHOUT PREJUDICE.
III. Dismissal of the Charges
Mr. Topolski’s final request is for outright dismissal of the underlying
charges.28 In support of the Court’s power to dismiss, he cites Capps v. Sullivan, a
federal appellate court decision discussing the statutory authority of federal courts
“to dispose of habeas corpus matters as ‘law and justice require.’”29 In Capps, the
Tenth Circuit explained that this broad power is “necessary to protect the purpose of
habeas corpus jurisdiction when the error forming the basis for the relief cannot be

26
State’s Reply Br. at 2.
27
Cf. Family Court v. Alexander, 522 A.2d 1265, 1267 (Del. 1987) (“Since this appeal no longer
involves a person currently deprived of liberty, it no longer involves a controversy judicially
resolvable in a habeas corpus context.”).
28
The Court previously denied without prejudice Mr. Topolski’s motion to dismiss on speedy trial
grounds, and that motion has not been renewed. The Court considers here only whether it should
dismiss the charges in order to remedy the equal protection violation identified in its previous
Opinion.
29
13 F.3d 350, 352 (10th Cir. 1993) (quoting 28 U.S.C. § 2243).
8
corrected in further proceedings.”30 Accordingly, a federal court has discretion to
bar re-trial when the constitutional violation is “such that it cannot be remedied by
another trial, or other exceptional circumstances exist such that the holding of a new
trial would be unjust.”31 Mr. Topolski argues that relief can no longer be provided
in his criminal proceedings given “his (highly probable) irreparable
incompetence.”32
Setting aside the issue of whether this Court can exercise such broad remedial
authority pursuant to 10 Del. C. § 6909(a), the Court concludes that the error forming
the basis for habeas relief can be corrected in further proceedings—specifically,
involuntary civil commitment proceedings. The Court’s prior holding was that
“continued detention under Sections 403 and 404, without the procedural
protections and mechanisms for release provided in the civil commitment process,”
violated Mr. Topolski’s equal protection rights.33 Thus, while no proceedings
pursuant to 11 Del. C. §§ 403(b) and 404(a) would be sufficient to correct the error,
involuntary commitment proceedings pursuant to 16 Del. C. ch. 50 would correct
the legal error and potentially justify further confinement.
Dismissal of the charges would have no effect one way or another on the
validity of confinement via involuntary civil commitment. In light of the Court’s
prior bail modification order, it would also have no immediate impact on Mr.
Topolski’s confinement status. While the Court is sympathetic to Mr. Topolski’s
desire for a final resolution of the criminal case, the Court’s prior Opinion dealt only
with the constitutionality of his confinement, not with the continued pendency of the

30
Id.
31
Id. at 352–53.
32
Def.’s Suppl. Br. at 3.
33
Topolski, 2023 WL 4247356, at *7 (emphasis supplied); see also id. at *18 (“The only
constitutionally adequate procedure to justify continued commitment currently authorized by
statute in Delaware is an involuntary civil commitment pursuant to 16 Del. C. ch. 50.”).
9
charges. Dismissal would go beyond the scope of relief necessary to remedy the
equal protection violation. Accordingly, Mr. Topolski’s request for dismissal of the
charges is DENIED.34
CONCLUSION
For the foregoing reasons, Mr. Topolski’s request for release from criminal
custody is GRANTED, and the Court’s order modifying his bond to an unsecured
amount will remain in place. Mr. Topolski’s petition for an order forbidding rearrest
and reindictment is unripe and therefore DENIED WITHOUT PREJUDICE.
Finally, his request for dismissal of the charges is DENIED.
IT IS SO ORDERED.

NEP/tls
Via Email
oc: Prothonotary
cc: Counsel of Record

34
The Court notes that in order to grant dismissal in this procedural posture, it would have to first
construe the habeas statute to authorize dismissal of pending charges and be satisfied, at a
minimum, that such dismissal would not constitute an abuse of discretion. Cf. Capps, 13 F.3d at
353 (“In this case, because nothing in the record suggests the constitutional violation was not
redressable in a new trial, the district court apparently abused its discretion.”).
10