IN THE SUPREME COURT OF THE STATE OF DELAWARE
ELI ESCALERA, § § Defendant Below, § No. 407, 2020 Appellant, § § v. § Court Below–Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID Nos. 1606024326A (N) Plaintiff Below, § 1606024326B (N) Appellee. § §
Submitted: May 14, 2021 Decided: August 4, 2021
Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES, Justices.
ORDER
After careful consideration of the parties’ briefs and the record on appeal, it
appears to the Court that:
(1) The appellant, Eli Escalera, appeals the Superior Court’s denial of his
motion for postconviction relief. For the following reasons, we affirm the Superior
Court’s judgment.
(2) In October 2016, a Superior Court grand jury charged Escalera by
indictment with aggravated menacing, possession of a deadly weapon during the
commission of a felony (“PDWDCF”), possession of a deadly weapon by a person
prohibited (“PDWBPP”), resisting arrest, and disorderly conduct. At Escalera’s request, the Superior Court severed the person-prohibited charge (Case B) from the
remaining charges (Case A).
(3) Case A proceeded to a jury trial in April 2017. The evidence presented
at trial fairly established the following facts. In the evening of June 29, 2016, Amoni
Green was waiting for her boyfriend at a bus stop when a stranger—later identified
as Escalera—advanced toward her, wielding a black knife in his right hand. Green
ran into the median of Route 13 and flagged down Officer Michael Zolnowski of the
New Castle County Police Department who happened to be driving by. As Officer
Zolnowski pulled into a parking lot adjacent to the bus stop, Escalera began walking
away. Green saw Escalera flick his wrist in the direction of a nearby fence. A
witness to the altercation between Escalera and Green placed a call to 911 and
described the aggressor as wearing a green shirt and tan shorts. Officer Zolnowski
took Escalera—who was wearing a green collared shirt and tan shorts and was
unarmed—into custody at the scene. Another responding officer recovered a black
knife from the area where Green observed Escalera snap his wrist. The knife was
tested for DNA, but the DNA recovered from the knife could not be linked to
Escalera. The jury acquitted Escalera of resisting arrest but found him guilty of the
remaining charges in Case A. After the jury returned its verdict, Escalera was tried
and found guilty at a bench trial of PDWBPP in Case B. On the State’s motion, the
Superior Court declared Escalera to be a habitual offender, and the Superior Court
2 sentenced him to twenty-five years of imprisonment followed by decreasing levels
of supervision. We affirmed Escalera’s convictions and sentence on direct appeal.1
(4) On December 14, 2018, Escalera filed a timely motion for
postconviction relief under Superior Court Criminal Rule 61. Escalera raised several
arguments, including two claims of ineffective assistance of counsel. The Superior
Court appointed counsel to assist Escalera with the postconviction proceedings.
Postconviction counsel later moved to withdraw, indicating that, after a careful
review of the record, she had not identified any potential grounds for postconviction
relief. After expanding the record with briefing and directing trial counsel to file an
affidavit addressing Escalera’s claims of ineffective assistance of counsel, the
Superior Court granted postconviction counsel’s motion to withdraw and denied
Escalera’s motion for postconviction relief.2 This appeal followed.
(5) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de novo.3 The procedural bars of Rule 61
must be considered before any substantive claims are addressed.4 Rule 61(i)(3) bars
any ground for relief that was not asserted in the proceedings leading to the judgment
of conviction.5 On the other hand, ineffective-assistance-of-counsel claims are
1 Escalera v. State, 2018 WL 2406009 (Del. May 25, 2018). 2 State v. Escalera, 2020 WL 6376646 (Del. Super. Ct. Oct. 30, 2020). 3 Baynum v. State, 211 A.3d 1075, 1082 (Del. 2019). 4 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 5 Del. Super. Ct. Crim. Rule 61(i)(3). 3 properly raised in a timely filed motion for postconviction relief.6 Claims of
ineffective assistance of counsel are governed by the two-pronged test set forth in
Strickland v. Washington.7 In order to prevail on a claim of ineffective assistance of
counsel, the defendant must demonstrate that (i) trial counsel’s representation fell
below an objective standard of reasonableness,8 and (ii) but for counsel’s deficient
performance, there is a reasonable probability that the result of the proceeding would
have been different.9 Although not insurmountable, there is a strong presumption
that counsel’s representation was professionally reasonable.10 “If an attorney makes
a strategic choice after thorough investigation of [the] law and facts relevant to
plausible options, that decision is virtually unchallengeable.”11
(6) On appeal, Escalera raises three arguments: (i) trial counsel was
ineffective for failing to obtain a DNA sample from the victim’s boyfriend; (ii) trial
counsel was ineffective for failing to find and question the person who made the 911
call; and (iii) the grand jury indictment was defective. As a preliminary matter,
6 Green v. State, 238 A.3d 160, 175 (Del. 2020). 7 466 U.S. 668 (1984). 8 Id. at 687-88. 9 Green, 238 A.3d at 174. 10 Albury v. State, 551 A.2d 53, 59 (Del. 1988). 11 Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (internal quotation marks and citations omitted). 4 Escalera has waived any arguments made below but not briefed on appeal.12 And
the claims Escalera raises on appeal are unavailing.
(7) Escalera’s first two arguments—his ineffective-assistance-of-counsel
claims—mirror those that he made below. After careful consideration, we conclude
that these claims must fail for the well-stated reasons given by the Superior Court in
its October 30, 2020 order. In short, we agree with the Superior Court’s conclusion
that Escalera is unable to satisfy either prong of the Strickland analysis: (i) he has
failed to allege sufficient facts establishing that trial counsel’s performance fell
below an objective standard of reasonableness, and (ii) he cannot show that, but for
counsel’s allegedly deficient performance, there is a reasonable probability that the
outcome of his trial would have been different.
(8) For the first time on appeal, Escalera also argues that the Superior Court
abused its discretion when it allowed the State to prosecute him based on a “defective
charging instrument.” Escalera alleges that Count II of the indictment (PDWDCF)
was defective because it incorrectly stated that PDWDCF requires that he
unknowingly possessed a deadly weapon when, in fact, PDWDCF requires that
Escalera knowingly possessed a deadly weapon. Because Escalera did not raise this
12 Del. Supr. Ct. R. 14(b)(vi)A.(3). 5 claim below, we review it for plain error.13 This claim is also procedurally barred
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
ELI ESCALERA, § § Defendant Below, § No. 407, 2020 Appellant, § § v. § Court Below–Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID Nos. 1606024326A (N) Plaintiff Below, § 1606024326B (N) Appellee. § §
Submitted: May 14, 2021 Decided: August 4, 2021
Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES, Justices.
ORDER
After careful consideration of the parties’ briefs and the record on appeal, it
appears to the Court that:
(1) The appellant, Eli Escalera, appeals the Superior Court’s denial of his
motion for postconviction relief. For the following reasons, we affirm the Superior
Court’s judgment.
(2) In October 2016, a Superior Court grand jury charged Escalera by
indictment with aggravated menacing, possession of a deadly weapon during the
commission of a felony (“PDWDCF”), possession of a deadly weapon by a person
prohibited (“PDWBPP”), resisting arrest, and disorderly conduct. At Escalera’s request, the Superior Court severed the person-prohibited charge (Case B) from the
remaining charges (Case A).
(3) Case A proceeded to a jury trial in April 2017. The evidence presented
at trial fairly established the following facts. In the evening of June 29, 2016, Amoni
Green was waiting for her boyfriend at a bus stop when a stranger—later identified
as Escalera—advanced toward her, wielding a black knife in his right hand. Green
ran into the median of Route 13 and flagged down Officer Michael Zolnowski of the
New Castle County Police Department who happened to be driving by. As Officer
Zolnowski pulled into a parking lot adjacent to the bus stop, Escalera began walking
away. Green saw Escalera flick his wrist in the direction of a nearby fence. A
witness to the altercation between Escalera and Green placed a call to 911 and
described the aggressor as wearing a green shirt and tan shorts. Officer Zolnowski
took Escalera—who was wearing a green collared shirt and tan shorts and was
unarmed—into custody at the scene. Another responding officer recovered a black
knife from the area where Green observed Escalera snap his wrist. The knife was
tested for DNA, but the DNA recovered from the knife could not be linked to
Escalera. The jury acquitted Escalera of resisting arrest but found him guilty of the
remaining charges in Case A. After the jury returned its verdict, Escalera was tried
and found guilty at a bench trial of PDWBPP in Case B. On the State’s motion, the
Superior Court declared Escalera to be a habitual offender, and the Superior Court
2 sentenced him to twenty-five years of imprisonment followed by decreasing levels
of supervision. We affirmed Escalera’s convictions and sentence on direct appeal.1
(4) On December 14, 2018, Escalera filed a timely motion for
postconviction relief under Superior Court Criminal Rule 61. Escalera raised several
arguments, including two claims of ineffective assistance of counsel. The Superior
Court appointed counsel to assist Escalera with the postconviction proceedings.
Postconviction counsel later moved to withdraw, indicating that, after a careful
review of the record, she had not identified any potential grounds for postconviction
relief. After expanding the record with briefing and directing trial counsel to file an
affidavit addressing Escalera’s claims of ineffective assistance of counsel, the
Superior Court granted postconviction counsel’s motion to withdraw and denied
Escalera’s motion for postconviction relief.2 This appeal followed.
(5) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de novo.3 The procedural bars of Rule 61
must be considered before any substantive claims are addressed.4 Rule 61(i)(3) bars
any ground for relief that was not asserted in the proceedings leading to the judgment
of conviction.5 On the other hand, ineffective-assistance-of-counsel claims are
1 Escalera v. State, 2018 WL 2406009 (Del. May 25, 2018). 2 State v. Escalera, 2020 WL 6376646 (Del. Super. Ct. Oct. 30, 2020). 3 Baynum v. State, 211 A.3d 1075, 1082 (Del. 2019). 4 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 5 Del. Super. Ct. Crim. Rule 61(i)(3). 3 properly raised in a timely filed motion for postconviction relief.6 Claims of
ineffective assistance of counsel are governed by the two-pronged test set forth in
Strickland v. Washington.7 In order to prevail on a claim of ineffective assistance of
counsel, the defendant must demonstrate that (i) trial counsel’s representation fell
below an objective standard of reasonableness,8 and (ii) but for counsel’s deficient
performance, there is a reasonable probability that the result of the proceeding would
have been different.9 Although not insurmountable, there is a strong presumption
that counsel’s representation was professionally reasonable.10 “If an attorney makes
a strategic choice after thorough investigation of [the] law and facts relevant to
plausible options, that decision is virtually unchallengeable.”11
(6) On appeal, Escalera raises three arguments: (i) trial counsel was
ineffective for failing to obtain a DNA sample from the victim’s boyfriend; (ii) trial
counsel was ineffective for failing to find and question the person who made the 911
call; and (iii) the grand jury indictment was defective. As a preliminary matter,
6 Green v. State, 238 A.3d 160, 175 (Del. 2020). 7 466 U.S. 668 (1984). 8 Id. at 687-88. 9 Green, 238 A.3d at 174. 10 Albury v. State, 551 A.2d 53, 59 (Del. 1988). 11 Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (internal quotation marks and citations omitted). 4 Escalera has waived any arguments made below but not briefed on appeal.12 And
the claims Escalera raises on appeal are unavailing.
(7) Escalera’s first two arguments—his ineffective-assistance-of-counsel
claims—mirror those that he made below. After careful consideration, we conclude
that these claims must fail for the well-stated reasons given by the Superior Court in
its October 30, 2020 order. In short, we agree with the Superior Court’s conclusion
that Escalera is unable to satisfy either prong of the Strickland analysis: (i) he has
failed to allege sufficient facts establishing that trial counsel’s performance fell
below an objective standard of reasonableness, and (ii) he cannot show that, but for
counsel’s allegedly deficient performance, there is a reasonable probability that the
outcome of his trial would have been different.
(8) For the first time on appeal, Escalera also argues that the Superior Court
abused its discretion when it allowed the State to prosecute him based on a “defective
charging instrument.” Escalera alleges that Count II of the indictment (PDWDCF)
was defective because it incorrectly stated that PDWDCF requires that he
unknowingly possessed a deadly weapon when, in fact, PDWDCF requires that
Escalera knowingly possessed a deadly weapon. Because Escalera did not raise this
12 Del. Supr. Ct. R. 14(b)(vi)A.(3). 5 claim below, we review it for plain error.13 This claim is also procedurally barred
under Rule 61(i)(3) because it could have been raised in the proceedings below.14 In
any event, Escalera’s claim is without merit.
(9) An indictment must be a “plain, concise and definite written statement
of the essential facts constituting the offense charged.”15 The purpose of an
indictment is to put the defendant on notice of the crimes with which he has been
charged and to preclude a subsequent prosecution for the same offense.16 Here, the
indictment contained a typographical error and incorrectly stated that Escalera
violated 11 Del. C. § 1447 by unknowingly possessing a deadly weapon. But Count
II of the indictment cited to § 1447, which defines PDWDCF, and Escalera does not
claim that the indictment failed to put him on notice of the crime for which he was
charged such that he was unable to prepare a defense.17 Moreover, the Superior
Court corrected the error by properly instructing the jury on the elements of
13 Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any question not so presented.”). 14 Del. Super. Ct. Crim. R. 12 (providing that any objection based on a defect in an indictment, other than lack of jurisdiction or failure to charge a crime, is waived unless raised before trial). 15 Del. Super. Ct. Crim. R. 7(c)(1). 16 Malloy v. State, 462 A.2d 1088, 1092 (Del. 1983). 17 See State v. Blendt, 120 A.2d 321, 323 (Del. 1956) (“[A]n indictment should be sufficient if it fulfills its basic purpose of acquainting the defendant with the offense charged sufficiently to enable him to prepare his defense and to protect himself against double jeopardy.”). 6 PDWDCF and the required mens rea.18 Under these circumstances, we find no merit
to Escalera’s claim.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Tamika R. Montgomery-Reeves Justice
18 See White v. State, 243 A.3d 381, 408 (Del. 2020) (declining to find plain error when a typographical error in the indictment was corrected by the trial judge in the presence of the jury). 7