State v. Wharton

• Court: Superior Court of Delaware
• Decided: August 13, 2024
• Docket: 1705016524A
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) ID. No. 1705016524A ) DAI’YANN WHARTON, ) ) Defendant. )

MEMORANDUM OPINION

Date Submitted: May 31, 2024 Date Decided: August 13, 2024

Upon Consideration of Defendant’s Motion for Postconviction Relief, DENIED

Carolyn S. Hake, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

Herbert W. Mondros, Esquire, Rigrodsky Law, Wilmington, Delaware, Rule 61 Counsel for Defendant Dai’yann Wharton.

Stephan Patrizio, Esquire, Dranoff & Patrizio, P.C., Philadelphia, Pennsylvania, pro hac vice Rule 61 Counsel for Defendant Dai’yann Wharton.

JURDEN, P.J. I. INTRODUCTION

On June 25, 2019, Dai’yann Wharton (“Wharton”) was found guilty by a

bench trial of Murder First Degree, Possession of a Firearm During the Commission

of a Felony (“PFDCF”), Conspiracy First Degree, Possession of a Firearm by a

Person Prohibited (“PFBPP”), and Concealed Carrying a Deadly Weapon

(“CCDW”) for the killing of Yaseem Powell (“Powell”).1 Wharton moves for

Postconviction Relief under Superior Court Criminal Rule 61 (“Motion”).2 For the

foregoing reasons, Wharton’s Motion for Postconviction Relief is DENIED.

1 D.I. 69. Each docket identification number correlates to Wharton’s docket unless specified otherwise. 2 D.I. 92. II. BACKGROUND AND PROCEDURAL HISTORY

A. Background

On March 28, 2017 around 4:00 p.m., Officer Brenda Merced (“Officer

Merced”) of the Wilmington Police Department responded to a report of an active

shooter in the Riverside Area.3 When Officer Merced arrived on scene, she found

Powell lying on the ground with a gunshot wound to his head.4 As Officer Merced

attempted to administer first aid, Powell succumbed to his injuries.5 On scene, police

recovered shell casings, a firearm, and Powell’s cell phone.6 Powell’s cellphone

revealed that moments before the shooting he sent a message indicating he was

walking behind Wharton and Benjamin Smith (“Smith”).7 Video surveillance

showed Powell being followed by Wharton and Smith.8 At the time of Powell’s

murder, Wharton and Smith were members of the “Shoot to Kill Gang” (“STK”),

formed for the purpose of killing members of its rival gang, “Only My Brothers”

(“OMB”).9 Powell was a member of OMB.10

Later that same day, Andrew Ervin (“Ervin” or “Twin”) sustained a gunshot

3 D.I. 81 (“June 19, 2019 Trial Tr.”). 4 Id. at 72. 5 Id. at 21-22. 6 Id. at 121. 7 D.I. 81 (“June 21, 2019 Trial Tr.”) at 28. 8 Id. at 28-29. 9 Id. at 37-39. Smith was STK’s gun supplier. Id. at 43. 10 Id. wound to the foot in the area of Heald Street.11 Ervin told the police he had been

robbed, and that the firearm recovered at the scene belonged to one of his attackers.12

Ballistic evidence showed the recovered firearm had fired the shell casings

recovered near the scene of Powell’s murder.13

Hours after Powell’s murder, Isaiah Baird (“Baird”) texted Wharton about

Powell’s murder to which Wharton replied he already knew about it.14 When Baird

reported that the firearm had been retrieved by the police, Wharton replied that there

was “already a body on it,” and that he was scared.15 Wharton asked Baird if he

thought Ervin’s attackers were retaliating because Wharton “hit [their] folks.”16

Two days after the murder, Wharton and Baird exchanged more text messages

about someone telling people that Wharton “killed boul.”17 When Baird asked about

how many people knew, Wharton responded, “before I did it we was all out in front

of Twin crib [Ervin’s home].”18

B. Procedural History

On May 30, 2017, Wharton and Smith were indicted as codefendants for

11 Id. at 82. 12 Id. at 82-83. According to Smith, who later testified at Wharton’s trial, this was a fabricated story made up by Ervin and Smith to distance Smith from the firearm. Id. 13 State’s Resp. to Def.’s Mot. for Postconviction Relief at 6. 14 D.I. 112 (“June 20, 2019 Trial Tr.”) at 68-70. 15 Id. at 86-77. 16 Id. at 77. 17 Id. at 79. 18 Id. at 80. Murder First Degree, and related firearm charges.19 On June 19, 2017, the case was

assigned to the Trial Judge.20 Wharton and Smith were then reindicted for Murder

First Degree, Conspiracy First Degree, and related firearm charges on September 18,

2017.21 On August 27, 2018, the Court granted Wharton’s Motion to Sever

Wharton’s and Smith’s cases.22

i. Smith’s Plea and Sentencing

On January 30, 2019, Smith pled guilty to Manslaughter and Conspiracy

Second Degree.23 The Plea Agreement contained a Cooperation Agreement, in

which Smith agreed to provide his full cooperation–including testifying against

Wharton–and in return, the State would make a sentencing recommendation that

reflected that cooperation.24 Smith was sentenced by the Trial Judge on February

28, 2019 as follows: for Manslaughter, 10 years at Level V, suspended after 5 years

for 1 year of Level III; for Conspiracy Second Degree, 2 years at Level V, suspended

for 1 year at Level II.25

ii. Wharton’s Trial

Prior to trial, on June 12, 2019, Trial Counsel filed a motion in limine to

19 D.I. 1. 20 D.I. 9. 21 D.I. 17. 22 D.I. 51. 23 Smith, D.I. 39. 24 Cooperation Agreement, Smith D.I. 39. 25 Smith, D.I. 41. exclude use of the term “Shoot to Kill” at Wharton’s trial.26 On June 14, 2019, the

State informed the Court that the parties agreed to sever Wharton’s Gang

Participation charge upon Trial Counsel’s concession that certain evidence about the

STK gang would be admissible for the purpose of establishing Wharton’s motive.27

As a result, Trial Counsel withdrew the motion in limine.28

On the morning of June 17, 2019, Trial Counsel filed a motion in limine to

exclude the text messages (“Incriminating Messages”) between Wharton and

Baird.29 The Trial Judge denied the motion in limine finding insufficient prejudice

and gave Trial Counsel additional time to interview the individuals referenced in the

Incriminating Messages.30

That same day, Wharton rejected the State’s plea offer and waived his right to

a jury trial.31 During the colloquy on the waiver of jury trial, Trial Counsel advised

the Trial Judge that Wharton regularly expressed his desire to have the Trial Judge

sit as finder of fact.32 Wharton confirmed that he was waiving his right to a jury trial

knowingly, intelligently, and voluntarily.33 The Court advised Wharton that, “once

you give up your right to a trial jury, you can’t change your mind in the middle of

26 D.I. 63. 27 D.I. 56. 28 June 17, 2019 Trial Tr. at 10:2-19; D.I. 65. 29 D.I. 60. 30 D.I. 67; June 18, 2019 Trial Tr. at 34. 31 June 17, 2019 Trial Tr. at 19-20, 13-14. 32 Id. at 11. 33 June 17, 2019 Trial Tr. 17:21-20:8, 12:4-14:4; D.I. 79. trial” and asked if Wharton had adequate time to consider the pros and cons of a jury

trial versus a bench trial and whether he discussed those pros and cons with

counsel.34 Wharton affirmed that he had.35 Following the colloquy, the Court

accepted Wharton’s waiver,36 and the bench trial commenced on June 19, 2019.37

At the conclusion of the bench trial, the Trial Judge found Wharton guilty of

Murder First Degree, Possession of a Firearm During Commission of a Felony

(“PFDCF”), Conspiracy First Degree, Possession of a Firearm by a Prohibited

Juvenile (“PFBPJ”), and Carrying a Concealed Deadly Weapon (“CCDW”).38

iii. Wharton’s Sentencing

Wharton’s sentencing commenced on December 5, 2019.39 In preparation for

the sentencing hearing, the Trial Judge reviewed the record, which included a

presentence investigation.40 At the sentencing hearing, the State recommended an

aggregate of 60 years of unsuspended Level V time for Wharton’s various offenses.41

In support of its sentence recommendation, the State argued that although Wharton

had no criminal history, he was only fifty days shy of his eighteenth birthday at the

34 Id. at 13:5-17. 35 Id. 36 D.I. 61. 37 D.I. 81. 38 Id. 39 D.I. 75. 40 Sentencing Tr. 6:18-20, 25:23-26:3; D.I. 78. The presentence investigation included, among other materials, an evaluation from Aim Therapeutic Services LLC and an Anger Management for Substance Abuse and Mental Health Certificate of Completion. 41 Id. at 11:8-13, 12:5-9. time of the murder, and emphasized the excessive cruelty and callousness of the

crime.42 Trial Counsel requested “a sentence near the minimum.”43 He emphasized

Wharton’s youth,44 lack of criminal history,45 and mental health issues.46 The Trial

Judge noted Wharton’s youth and lack of criminal history as mitigating factors.47

The Trial Judge then sentenced Wharton, effective June 14, 2017, to 29 years of

unsuspended Level V time48–one year above the total minimum mandatory

sentence.49

iv. Wharton’s Direct Appeal

Wharton appealed his conviction.50 On appeal, he only raised one ground,

arguing the Court abused its discretion by denying his motion to exclude the

Incriminating Messages.51 On January 19, 2021, the Delaware Supreme Court

42 Id. at 13:8-15:4, 8:23-10:4. 43 Id. at 21:10-14. The minimum mandatory sentence for Wharton’s offenses was 28 years of unsuspended Level V time. Id. 44 Id. at 20:1-19, 21:11-14, 22:21. 45 Id. at 23:1-2. 46 Id. at 22:22-23:1. See also id. at 19:17-22 (“[T]here is no significant mental illness. He does have some mental health issues as were outlined by her in terms of his ADHD and in terms of oppositional defiant disorder, but other than that, nothing really in–all that bad.”). 47 D.I. 75. 48 Wharton was sentenced as follows: for Murder First Degree, 25 years at Level V; for PFDCF, 4 years at Level V; for CCDW, 8 years at Level V, suspended for 6 months at Level IV, followed by decreasing levels of supervision; for PFBPJ, 8 years at Level V, suspended for 1 year at Level III; and for Conspiracy First Degree, 5 years at Level V, suspended for 1 year at Level III. Id. 49 Wharton faced a minimum mandatory sentence of 28 years. See 11 Del. C. § 4209A; 11 Del. C. § 1447A(b); see supra note 65. 50 Wharton v. State, 246 A.3d 110, 116 (Del. 2021). 51 Id. affirmed the Trial Judge’s discovery rulings and Wharton’s conviction. 52 When

evaluating the closeness of the case, the Delaware Supreme Court noted:

This case was not close in our view. Security camera footage showed Powell being followed for approximately eleven blocks and then slain by two individuals. In electronic messages, the victim himself specifically identified those individuals as Wharton and Smith. The footage does not make clear who fired the fatal shot, and so absent the Incriminating Messages, the State needed to rely on Smith’s testimony and on circumstantial evidence to establish Wharton as the shooter. Although the State concedes that, without the Incriminating Messages, distinguishing whether Wharton was the shooter or the shooter’s companion was a ‘fairly close’ question, Delaware law recognizes that Wharton and Smith were both culpable because they were charged as co- conspirators. Although the State’s main theory was that Wharton was the shooter, there was ample evidence supporting the conspiracy theory. Thus, even without the Incriminating Messages, proof of Wharton’s guilt was overwhelming.53 v. The Instant Motion and Motion to Recuse

On February 9, 2022, Wharton timely filed the instant Motion.54 On June 6,

2022, Wharton filed a motion to recuse, requesting the Trial Judge recuse herself

from postconviction proceedings.55 The Court denied the recusal motion on January

52 Id. at 121. 53 Id. at 120 (emphases added). 54 D.I. 92. 55 D.I. 97. 23, 2023.56

III. STANDARDS OF REVIEW

A. Rule 61: Procedural Bars to Relief

Rule 61 permits incarcerated individuals to seek a dismissal of their

conviction by showing a lack of jurisdiction or alternative ground that sufficiently

establishes a basis for a collateral attack upon the conviction.57 Before considering

the merits of any postconviction relief claims, the Court must first consider whether

any procedural bars exist. Rule 61(i) establishes four procedural bars to

postconviction relief: (1) motions must be filed within one year of a final judgment

or conviction; (2) successive motions for postconviction relief are prohibited unless

certain conditions are met; (3) any ground for relief not previously raised is

considered waived; and (4) all formerly adjudicated claims are prohibited.58

Ineffective assistance of counsel (“IAC”) claims cannot be raised at any earlier stage

in the proceedings, so they are properly presented by way of a motion for

postconviction relief.59

56 D.I. 117. 57 Super. Ct. Crim. R. 61(a)(1). 58 Id(i). 59 Sabb v. State, 2021 WL 2229631, at *1 (Del. May 28, 2021) (“On the other hand, ineffective- assistance-of-counsel claims are properly raised in a timely filed motion for postconviction relief.”). Because this is Wharton’s first postconviction relief motion and it is timely,

his Motion is not procedurally barred, and the Court addresses it on the merits.

B. Rule 61: Ineffective Assistance of Counsel

A successful IAC claim must satisfy the two-pronged test set out in Strickland

v. Washington.60 Under Strickland, a defendant must demonstrate that (1) trial

counsel’s performance was objectively unreasonable, and (2) if trial counsel was

deficient, there was a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”61

The Strickland standard carries a strong presumption that counsel conducted

himself in a professionally reasonable manner.62 Mere allegations of ineffectiveness

are not enough.63 Counsel “may not be faulted for a reasonable miscalculation or

lack of foresight or for failing to prepare for what appear to be remote

possibilities.”64 The “benchmark for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.”65 A proper

assessment of counsel’s performance requires that “every effort be made to eliminate

60 Strickland v. Washington, 466 U.S. 668, 694 (1984). 61 Id. 62 Albury v. State, 551 A.2d 53, 59 (Del. 1988). 63 Younger v. State, 580 A.2d 552, 556 (Del. 1990). 64 Harrington v. Richter, 562 U.S. 86, 110 (2011). 65 Strickland, 466 U.S. at 686. the distorting effects of hindsight, to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from counsel's perspective at the

time.”66 A defendant must make and substantiate concrete allegations to overcome

this presumption.67 Notably, the Court does not need to first examine the objectively

reasonable prong but may first evaluate the prejudice the defendant purports to have

suffered.68 The “failure to state with particularity the nature of the prejudice

experienced is fatal to a claim of ineffective assistance of counsel.”69

IV. DISCUSSION

In support of his IAC claims, Wharton argues four separate bases: Trial

Counsel was ineffective for (1) failing to file a motion to recuse, (2) allowing

Wharton to waive a jury after not preparing enough, (3) failing to exclude Wharton’s

gang affiliation, and (4) filing a motion to exclude a social media expert and

requesting a social media expert.70 The Court takes each in turn.

A. Failing to File a Motion to Recuse

Wharton argues that because the Trial Judge sentenced his co-defendant the

66 Id. at 689. 67 Id; see Salih, 962 A.2d at 257. 68 Strickland, 466 U.S. at 697. 69 Purnell v. State, 106 A.3d 332 (Del. 2014) (inner citations and quotations omitted). 70 D.I. 92. The Court finds its difficult to decipher what Wharton’s arguments are across all the various filings to the Court following his submission of his Motion, but does its best to address them. Trial Judge’s impartiality could have reasonably been questioned.71 He avers that

the Trial Judge learned more about the case through sentencing Smith and that she

had already accepted Smith’s version of events when conducting Wharton’s trial.72

The State responds that because Wharton’s allegations do not support a finding for

recusal, Trial Counsel could not be ineffective for failing to file a motion asking for

it.73

As the State points out, Wharton filed a motion to have the Trial Judge recuse

herself from postconviction relief determinations.74 The Court conducted the

requisite two-part Los test analysis.75 Importantly, when discussing the objective

portion of the Los test which requires that a judge be disqualified if the alleged

prejudice stems from an extrajudicial source, the Court found that (1) “the alleged

bias does not stem from an extrajudicial source” because it would have been from

Smith’s sentencing (a judicial source), and (2) “no objective observer, upon

reviewing the record, would find an appearance of bias sufficient to cause doubt as

to the judge’s impartiality.”76 The Court further concluded, “the Trial Judge was,

and remains, satisfied she could sit as the finder of fact in Wharton’s trial free from

bias” and will “remain unbiased and impartial in Wharton’s postconviction

71 Id. 72 Id. 73 D.I. 123. 74 Id. 75 State v. Wharton, 2023 WL 634176, at *9 (Del. Super. Jan. 23, 2023). 76 Id. proceedings.”77 The Court denied Wharton’s motion to recuse.78 Given this,

Wharton is unable to demonstrate that had Trial Counsel moved to recuse the Trial

Judge the outcome would have been different.79 Rule 61 Counsel submitted the

Motion, and it was denied. Because Wharton cannot show prejudice, his IAC claim

based on Trial Counsel’s failure to file a motion to recuse is meritless.

B. Allowing Wharton to Waive his Right to a Jury80

Wharton argues his jury trial waiver was not “knowing and intelligent”

because Trial Counsel did not inform him that the Trial Judge sentenced his co-

defendant, Smith.81

The decision to waive a jury trial must be knowing, intelligent, and

voluntary.82 Generally, a waiver is valid if “the defendant is aware of the right in

question and the likely consequences of deciding to forego that right.”83 “The

determination of whether there has been an intelligent waiver of right to counsel

must depend, in each case, upon the particular facts and circumstances surrounding

that case, including background, experience, and conduct of the accused.”84 The

77 State v. Wharton, 2023 WL 634176, at *9 (Del. Super. Jan. 23, 2023). 78 Id. 79 Id. 80 There appears to be a fleeting mention of Cronic but because Wharton fails to argue why Cronic applies over Strickland, the Court will analyze his claims under Strickland. 81 D.I. 92. 82 See State v. Wheeler, 2022 WL 2134686, at *1 (Del. Super. June 14, 2022). 83 Davis v. State, 809 A.2d 565, 569 (Del. 2002). 84 Johnson v. Zerbst, 304 U.S. 458, 464 (1938). decision to waive a jury trial rests with the defendant.85 The “Defendant has the

ultimate authority to make certain fundamental decisions regarding his case,

including whether to . . . waive [a] trial by jury . . . .”86

Strickland is modified slightly in cases where a defendant claims “Trial

Counsel ineffectively represented his client by failing to ensure that [a defendant]

exercised his right to a jury trial.”87 In this case, Wharton must demonstrate that there

is a reasonable probability that, but for Trial Counsel’s failure to ensure a proper

waiver of the right to a jury trial, he would have exercised that right.88

Trial Counsel told the Court that Wharton “has been consistent throughout

[the case] that he would like his case to be heart by the Court as opposed to the jury

. . .” and that he “met with Mr. Wharton again [that] morning and went back over to

him to assure that he was relinquishing his right to a trial by 12 people, and [that] is

the way he would like to proceed.”89 Deficiencies in communications between

counsel and defendants prior to jury trial waiver can be cured by colloquies,90 and

85 State v. Caulk, 2021 WL 2662250 (Del. Super. June 29, 2021). 86 Wheeler, 2022 WL 2134686, at *6 (citations omitted). 87 Id. at *5. 88 Id. 89 D.I. 123; June 17, 2019 Trial Tr. at 11. 90 State v. Couch, 2007 WL 987403 (Del. Super. Mar. 30, 2007), aff’d 945 A.2d 593 (TABLE) (Del. 2008); see also State v. Taye, 2014 WL 785033 (Del. Super. Feb. 26, 2013), aff’d 2014 WL 4657310 (Del. Sept. 18, 2014) (holding even if counsel was deficient the deficiency was cured when the trial judge engages in a colloquy with the defendant) and State v. Hall, 2016 WL 241192 (Del. Super. Jan. 19, 2016) (holding defendant failed to meet the prejudice prong by arguing that his trial counsel was ineffective for failing to advise him of his right to a jury trial on two firearm possession charges that were severed because the trial judge engaged in a thorough colloquy where they found defendant’s waiver knowing and intelligently made). the Court engaged Wharton in a thorough colloquy which established his waiver was

knowing, intelligent, and voluntary:

THE COURT: All right. And it’s your wish to give up your right to a trial by a jury of 12 and proceed with the Court, meaning me, [to] decide whether or not the State has met its burden of proof? THE DEFENDANT: Yes. THE COURT: And [Trial Counsel], the charges moving forward are what? I know that the indictment has been whittled down. [Trial Counsel recites the charges] THE COURT: All right. So, you understand that, Mr. Wharton? THE DEFENDANT: Yes. THE COURT: I wanted you to understand exactly what charges are going to be on trial here this week. Okay? THE DEFENDANT: Yes. ... THE COURT: All right. And you understand once you give up your right to a jury trial, you can’t change your mind in the middle of trial. Once we start and we proceed in what’s called a bench trial, that’s how we’ll proceed. Do you understand that? THE DEFENDANT: Yes. THE COURT: And have you had adequate time to consider the pros and cons of a jury trial versus a bench trial? THE DEFENDANT: Yes. THE COURT: Have you had adequate time to discuss[] those pros and cons with your counsel? THE DEFENDANT: Yes. THE COURT: And is it your decision that you wish to give up your right to a trial by jury and proceed with a bench trial? THE DEFENDANT: Yes. THE COURT: Do you have any questions or concerns about that decision? THE DEFENDANT: No. THE COURT: Okay, I’m going to sign the stipulation of waiver of jury, and we will proceed to a bench trial.91

Wharton argues his Trial Counsel’s advice was deficient under Strickland, but

Wharton fails to show that he would have gone to a jury trial and the result would

have been different. Rather, he maintained his desire to waive to a bench throughout

the pendency of the case.92 His colloquy establishes his will and desire to waive his

jury trial right and the Court found it knowing, intelligent, and voluntary. Because

Wharton is unable to establish the prejudice prong, the Court finds this argument

deficient and denies his IAC claim on this basis.

C. Trial Counsel was Ineffective for Failing to Exclude Gang Affiliation

Wharton argues that Trial Counsel should not have withdrawn his motion to

exclude, and that Trial Counsel’s agreement that the motion was moot upon

agreement to a bench trial is a “prima facie showing of his ineffectiveness.”93 The

State argues that Wharton misunderstands the basis of the motion and explains the

motion was regarding the use of the acronym “STK” instead of “Shoot to Kill”

91 June 17, Trial Tr. at 12:4-14:4. 92 Id. at 11. 93 D.I. 92. because it would have been prejudicial otherwise, and the waiver to a bench trial

made the motion moot because the Trial Judge already knew what the acronym stood

for.94

Trial Counsel was not ineffective for withdrawing a moot motion. The Trial

Judge was aware of what “STK” stood for, so the motion became moot when

Wharton chose to waive his right to a jury trial. Wharton seems to argue the motion

sought to exclude all references to gang affiliation, but that is incorrect. Therefore,

the Court does not find Trial Counsel was ineffective for withdrawing a motion that

became moot once Wharton waived a jury trial and denies his IAC claim on this

basis.

D. Trial Counsel was Deficient for Filing a Motion to Exclude Social Media Evidence and Requesting a Social Media Expert

Wharton argues that it was objectively unreasonable for Trial Counsel to think

the Incriminating Messages were a social media issue.95 The State responds by

arguing that Wharton again misunderstands the motion and that it was filed to

exclude certain evidence, not social media evidence.96 Further, the State avers that

regardless of the usage of the term “social media,” Trial Counsel’s decision to

challenge the State’s evidence was strategic and thus falls under Strickland.97

94 D.I. 123. 95 D.I. 92. 96 D.I. 123. 97 Id. The decision to file or withdraw a motion is a strategic tactical decision what

rests with the attorney.98 Strategic decisions made by an attorney fall within the

purview of Strickland and must address both the prejudice and the performance

prong. Trial Counsel’s decision to file the motion was not unreasonable, and

Wharton cannot overcome the prejudice prong because he cannot show that his trial

would have ended differently had Trial Counsel filed a different motion using

different terminology. Therefore, the Court denies Wharton’s IAC claim on this

V. CONCLUSION

For the foregoing reasons, Wharton’s Motion for Postconviction Relief is

DENIED.

/s/ Jan R. Jurden Jan R. Jurden, President Judge

Original to Prothonotary

98 Cooke v. State, 977 A.2d 803, 840 (Del. 2009).