State v. Wiliams

• Court: Superior Court of Delaware
• Decided: April 22, 2026
• Docket: 1909016936
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) Cr. ID. No. 1909016936 ) RONNIE C. WILLIAMS, ) ) Defendant. )

Submitted: January 12, 2026 Decided: April 22, 2026

COMMISSIONER’S REPORT AND RECOMMENDATION ON DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF and POSTCONVICTION COUNSEL’S MOTION TO WITHDRAW

Diana Dunn, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware, Attorney for the State.

Eugene Maurer, Esquire, trial counsel.

Christofer Johnson, Esquire, appellate counsel.

Patrick J. Collins, Esquire, postconviction counsel.

Ronnie C. Williams, James T. Vaughn Correctional Center, Smyrna, Delaware.

O’CONNOR, Commissioner. This 22nd day of April, 2026, upon consideration of Defendant Ronnie

Williams’ (“Defendant”) Motion for Postconviction Relief; 1 Defendant’s

Memorandum of Law in Support of Rule 61 Motion for Postconviction Relief; 2 the

Affidavit 3 and Amended Affidavit 4 of Trial Counsel; the Affidavit 5 and Amended

Affidavit 6 of Appellate Counsel; the State’s Response to the Motion for

Postconviction Relief; 7 Defendant’s Response to Affidavits of Trial and Appellate

Counsel; 8 Defendant’s Reply to the State’s Response to the Motion for

Postconviction Relief; 9 postconviction counsel’s Motion to Withdraw; 10 and the

record in this matter, the following is my Report and Recommendation.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant Ronnie C. Williams was arrested on September 27, 2019 by

officers of the New Castle County Police Department (“NCCPD”) and charged with

several offenses, including Sexual Abuse of a Child by a Person in a Position of

Trust First Degree; Rape Second Degree; Continuous Sexual Abuse of a Child;

Sexual Abuse of a Child by a Person in a Position of Trust, Authority or Supervision

1 Docket Item (“D.I.”) 58. 2 D.I. 83. 3 D.I. 93. 4 D.I. 94. 5 D.I. 88. 6 D.I. 92. 7 D.I. 95. 8 D.I. 97. 9 D.I. 99. 10 D.I. 75. 1 in the Second Degree; Unlawful Sexual Contact Second Degree; and Unlawful

Sexual Contact with a Person who is less than 13 years of Age. 11 It was alleged that

over the course of several years, Defendant sexually assaulted three minors. On

January 21, 2020, a New Castle County Grand Jury indicted Defendant, 12 and on

October 25, 2021, the State obtained a superseding indictment. 13

At the conclusion of a five-day jury trial, Defendant was found guilty of: Rape

Second Degree (Criminal Action # IN21-10-1360 (as to victim E.H.)), Continuous

Sexual Abuse of a Child (Criminal Action # IN21-10-1365 (as to victim E.H.)),

Unlawful Sexual Contact First Degree (Criminal Action # IN21-10-1367 (as to

victim A.G.)), Sexual Abuse of a Child by a Person in a Position of Trust, Authority

or Supervision in the Second Degree (Criminal Action # IN21-10-1372 (as to victim

A.G.), and Sexual Solicitation of a Child (Criminal Action # IN21-10-1374 (as to

victim A.G.). 14 The jury acquitted Defendant of the indicted offenses regarding the

third victim – A.D.

11 State v. Williams, Case No. 1909016936, Adult Complaint and Warrant. 12 D.I. 4. 13 D.I. 23. The following differences exist between the indictment and superseding indictment: the State modified the victim’s initials in Counts I – VII, from E.E. to E.H.; in Counts VIII – XII, the charges are unchanged; in counts XIII and XIV, the date range for the offenses was modified from March 14, 2011 to March 13, 2017, to March 14, 2011 to June 15, 2017; the State added one count of Sexual Solicitation of a Child to the superseding indictment (Count XV); and Counts XVI thru Count XX of the superseding indictment are identical to Counts XV thru XIX of the original indictment. 14 D.I. 33. 2 On February 18, 2022, this Court imposed an aggregate sentence of seventy-

one years at Level V, suspended after serving twenty-two years, followed by

probation. 15 Defendant appealed the convictions to the Delaware Supreme Court

(“Supreme Court”). 16

On appeal, the Supreme Court found the following record facts:

The defendant, Ronnie C. Williams, met two brothers, E.H. and A.G., in 2008 when E.H. was 12 years-old and A.G. was 7 or 8 years-old. He was introduced to the brothers by Cyree, a 14-year-old boy who was living with Williams. Williams had been roommates with Cyree's mother and had agreed to look after her son while she spent time in prison and, later, in North Carolina.

Williams and Cyree had recently moved into the New Castle neighborhood where E.H. and A.G. lived and, according to Williams, he and Cyree “went to their house to meet them because we were new to the neighborhood.” E.H. and A.G. appeared to enjoy spending time with Williams and Cyree at Williams's home. A.G. testified that “it was a fun environment, there was game systems such as Xbox, Play Station, and I liked hanging out with Cyree and just go over there, talk about life with Ronnie.”

Williams took on a “parental” role in A.G.’s life while A.G.’s father was in prison, and he eventually became A.G.’s legal guardian, making A.G.’s doctor appointments, paying for food and clothing, giving him access to a car, and bringing him to Chicago Bulls games. Eventual disclosures revealed, however, that this veneer of generosity concealed a disturbing pattern of sexual abuse.

The allegations of abuse were first disclosed following a 2018 fight between Williams and A.G. After the altercation, the two went to A.G.’s mother's home in Wilmington, where A.G. told his mother that Williams had hit him. When A.G.’s mother chastised A.G., who at this

15 D.I. 37. 16 D.I. 38. 3 point was 17 years old, about his behavior toward Williams and at her house, A.G. “[stood] up and [said], ‘Well, Ronnie has been abusing me. When I was 10 years old, he touched my butt, and he has been making me masturbate in front of him.’”

Later that day, a New Castle County police officer responded to a call for assistance at A.G.’s mother's residence. A.G. told the officer about the fight with Williams earlier in the day. A.G. also told the officer that Williams had engaged in “unwanted sexual things” with him, dating back to when A.G. was 10 years old. As a result, Williams was arrested and charged with unspecified offenses for his role in the altercation with A.G., and the New Castle County Police Department opened an investigation into A.G.’s sexual abuse allegations. During that investigation, A.G.’s older brother, E.H. also disclosed that Williams had sexually abused him when E.H. was still a minor.

The investigation culminated in Williams's arrest at his home on September 27, 2019. When officers arrived, they found Williams's then 13-year-old nephew, A.D., playing videogames. A.D. told the officers that Williams had, on several occasions, touched him in inappropriate ways while he was sleeping over at the house.

Williams eventually faced trial on a 15-count indictment that charged him with various sexual offenses against the three juveniles, including rape in the second degree and continuous sexual abuse of a child.

At trial, E.H. testified that Williams would force him into unwanted sexual acts when he would spend the night at Williams's home with Cyree. A.G. also testified that Williams first molested him during a sleepover at Williams's home and that the abuse escalated after Williams caught him watching pornography on the PlayStation. 17

On direct appeal, Defendant’s counsel raised two claims. In the first, he

argued that this Court erred in not declaring a mistrial “after [Kathy] Cordova called

him a liar and several of the State’s witnesses alluded to the fact that Cyree was

17 Williams v. State, 296 A.3d 895, 897-99 (Del. 2023). 4 living with [the defendant].” 18 The Supreme Court summarized the pertinent

testimony of Ms. Cordova as follows:

Although able to speak and understand English, E.H.’s and A.G.’s mother—Katty Cordova—elected to testify during trial with the help of a Spanish interpreter. While on direct examination by the State, Ms. Cordova, using English, yelled over the interpreter that Williams was “a freaking liar.” She then repeated the word “liar,” as the court interjected “no outbursts ... [j]ust answer the question.” Defense counsel immediately asked the judge to excuse the jury to allow Cordova a moment to calm down. The court declined defense counsel's request, but Cordova again stated that Williams was “such a liar.” Defense counsel then requested, and the court called, a sidebar.

During the sidebar, defense counsel moved for a mistrial on the grounds that Cordova's outburst was “prejudicial to [Williams], which w[ould] reflect on his credibility when he [ ] testif[ied].” The trial judge, after discussing the matter with counsel, elected to break for the weekend but not before instructing the jury to “disregard the last comment that was given.” After the jury left the courtroom, the court informed Cordova that “[t]his is a courtroom. We have a certain level of decorum in a courtroom. We don't have outbursts, we don't have people yelling at other people, and we don't have people pointing fingers and calling them names.” When Cordova's testimony resumed following the weekend recess, there were no further outbursts.

In appellate counsel’s second claim, he argued this Court's “failure to declare

a mistrial after prosecution witnesses gave unfairly prejudicial testimony

compromised his Sixth Amendment right to trial before an impartial jury.” 19

In affirming Defendant’s convictions, the Supreme Court first concluded that

Ms. Cordova’s outburst(s) did not warrant a mistrial. While acknowledging that a

18 Id. at 902. 19 Id. 5 mistrial was “one way to remedy instances where a jury has been subjected to

improperly admitted and unfairly prejudicial evidence,” 20 Defendant’s claim that a

mistrial was the only remedy to cure any possible prejudice from Ms. Cordova’s

outburst(s) was rejected.

Defendant’s second argument fared no better. At some point before trial, this

Court held that the State was not permitted to elicit evidence that Cyree Watson lived

with Defendant, or that Defendant was Cyree's guardian.” 21 This limitation proved

challenging for the State, as the victims E.H. and A.G. met Cyree as neighbors and

were introduced to Defendant through Cyree. As trial progressed, the State

presented testimony of Cyree’s living with Defendant through three witnesses:

Latonya Smith, E.H., and Ms. Cordova. Despite all three witnesses being instructed

by the State not to mention Cyree’s living with Defendant prior to testifying, the

State’s witnesses were unable to comply with this Court’s ruling. In denying

Defendant’s second claim, the Supreme Court held:

Several facts compel our conclusion that the trial court was well within its discretion when it denied Williams's motions for a mistrial on these grounds. First, the court offered to give, and Williams repeatedly declined, curative instructions throughout the trial. Williams, moreover, did not request that a curative instruction be included in the final jury instructions, presumably to avoid reminding the jury that another boy lived with Williams during the period in which he allegedly abused E.H. and A.G. Given Williams's strategic decision to forgo

20 Id. 21 Id. at 899. 6 curative instructions when offered during trial and before jury deliberations, his criticism of the court on this point rings hollow.

Secondly, it would have been nearly impossible for E.H. and A.G. to explain how they had come to meet and spend time with Williams without indicating that Cyree lived with Williams; indeed, Cyree's presence in Williams's home was inextricable from their presence. And the fact that E.H. and A.G. slept over at Williams' house was going to come out at trial regardless of whether the jury was alerted to the fact that Cyree was living there. In fact, E.H.’s and A.G.’s sleepovers at Williams's appear less suspicious, not more so, when one considers that they were invited to the house by a boy their own age rather than by a grown man who lived alone. This is particularly true in the absence of any evidence indicating that Williams had an inappropriate relationship with Cyree. We simply do not see—and Williams has not explained— how these references to Cyree ran afoul of the rules of evidence or caused any prejudice to Williams.

And finally, as we have mentioned, there is evidence suggesting that the jury here was not, in fact, prejudiced by the repeated mentions of Cyree: Williams was acquitted on all charges that he had molested A.D. despite the jury convicting Williams of similar charges against E.H. and A.G. This fact indicates that the jury was able to independently assess each boy's allegations rather than assuming that Williams was abusive towards every boy of that age who spent time in his home. 22

On May 11, 2023, the Supreme Court issued its mandate, affirming

Defendant’s convictions. 23

22 Id. at 904-05. 23 D.I. 54. On November 16, 2023, Defendant filed a civil right action in the United States District Court for the District of Delaware pursuant to 42 U.S.C. § 1983, alleging that the police investigation and prosecution conducted by Detectives Joshuah Smith and Keith Sydnor of the New Castle County Police Department and Deputy Attorney Generals Diana Dunn and Kelly Sheridan of the Delaware Department of Justice, constituted a violation of his civil rights as well as tort claims under Delaware law. See Williams v. Dunn, C.A. No. 23-1311 (MN). Defendant argued that the investigation and prosecution which resulted in his convictions violated the U.S. Constitution and the Delaware Constitution. Williams v. Dunn, 2025 WL 1784589, at *1 (D. Del. June 27, 2025). For the reasons stated in the District Court’s Memorandum Order, Defendants’ 7 On April 5, 2024, Defendant filed a Motion for Appointment of

Postconviction Counsel 24 and a Motion for Postconviction Relief. 25 On April 16,

2024, this Court granted the Motion for Appointment of Postconviction Counsel,

and on September 4, 2024, Patrick Collins, Esquire was confirmed as Defendant’s

postconviction counsel. 26 On March 24, 2025, Mr. Collins filed a Motion to

Withdraw as Counsel, 27 along with a Memorandum in Support of the Motion to

Withdraw. 28 On May 17, 2025, Defendant filed a Response to the Motion to

Withdraw, 29 and on May 27, 2025, Defendant filed a Memorandum of Law In

Support of Rule 61 Motion for Postconviction Relief. 30

On October 3, 2025, this court received appellate counsel’s affidavit, in which

he denied Defendant’s ineffective assistance of counsel claims. 31 And, on

November 7, 2025, trial counsel submitted an affidavit also denying Defendant’s

ineffective assistance of counsel claims. 32 The State filed a response to the Motion

on December 10, 2025. 33 On December 12, 2025, Defendant filed a response to trial

Motions to Dismiss the Complaint were granted, and the District Court dismissed the Complaint with prejudice. Id. at *2. 24 D.I. 59. 25 D.I. 60. 26 D.I. 64. 27 D.I. 75. 28 D.I. 74. 29 D.I. 85. 30 D.I. 83. 31 D.I. 88. Appellate counsel filed an amended affidavit on November 7, 2025. See D.I. 92. 32 D.I. 93. Trial counsel filed an amended affidavit on December 2, 2025. See D.I. 94. 33 D.I. 95. 8 and postconviction counsel’s affidavits, 34 and on January 12, 2026, Defendant filed

a reply to the State’s response to the Motion. 35

II. MOTION FOR POSTCONVICTION RELIEF

As noted above, on April 5, 2024, Defendant filed a Motion for Postconviction

Relief. 36 In Delaware, “Superior Court Criminal Rule 61 provides the exclusive

remedy for setting aside a final judgment of conviction.” 37 Rule 61 is “intended to

correct errors in the trial process, not to allow defendants unlimited opportunities to

relitigate their convictions.” 38 The Rule provides incarcerated persons a procedure

to seek to have a conviction set aside on the ground that the court lacked jurisdiction

or to collaterally attack their conviction.

Defendant’s pro se Motion for Postconviction Relief (“Motion”) 39 raises five

categories of postconviction claims – 1) ineffective assistance of trial counsel; 2)

ineffective assistance of appellate counsel; 3) the police conducted an illegal search;

4) judicial misconduct, and 5) prosecutorial misconduct. Within many of those

categories, Defendant has raised additional claims, and the Rule requires a

Defendant to substantiate their claims with supportive facts. Specifically, Rule

61(b)(2) requires the following:

34 D.I. 97. 35 D.I. 99. 36 D.I. 58. 37 Jackson v. State, 2007 WL 2231072, at *1 (Del. Aug. 2, 2007). 38 Ploof v. State, 75 A.3d 811, 820 (Del. 2013). 39 D.I. 58. 9 (2) Content of Motion. The motion shall specify all the grounds for relief which are available to the movant and of which the movant has or, by the exercise of reasonable diligence, should have knowledge, and shall set forth in summary form the facts supporting each of the grounds thus specified. 40

Defendant’s Motion is devoid of sufficient facts to support each ground for

relief listed therein.

On May 27, 2025, more than ten months after filing the Motion, Defendant

filed a Memorandum of Law in Support of Rule 61 Motion (“Memorandum of

Law”). In the Memorandum of Law, Defendant elaborated on the claims he asserted

in the Motion. With respect to the claim that trial counsel was ineffective, he argued

trial counsel failed to: “effectively and actively” communicate with him before,

during and after the trial; 41 conduct an adequate investigation; 42 “subpoena,

interview or investigate” requested defense witnesses; “test the adversarial system”

by conducting an “insufficient cross examination or critical state witnesses and

conceding key elements of state evidence during closing arguments.” 43 Defendant

40 Super. Ct. Crim. R. 61(b)(2). 41 D.I. 83 at 5. 42 Id. Defendant argues trial counsel’s failure to properly investigate the allegations “prevented the Defendant from offering a complete defense.” Id. at 13. He contends trial counsel’s failure to discuss the witnesses the defense would call, without more, prejudiced him. Id. He also maintains trial counsel “failed to investigate the alleged crime scene,” and did not “show [him] the search warrant.” Id. at 13-14. Defendant asserts trial counsel should have investigated his “prescription medication history” and victim A.G.’s school records at William Penn High School. Id. at 14-15. Defendant argues trial counsel should have interviewed A.G. because A.G. “was in a prime position to rebut E.H.’s testimony of being sexually abused.” Id. at 16. Finally, Defendant claims the jury instruction as to Rape in the Second Degree was erroneous. Id. 43 Id. 10 claims trial counsel failed to prepare him for the presentence investigation interview,

and did not review with him the completed presentence investigation report. 44

Defendant also argues trial counsel failed in his “professional duty to ensure

Defendant would not be surprised,” 45 and asserts trial counsel did not effectively

advocate for him during Opening Statement or Closing Argument. 46 Finally,

Defendant argues trial counsel provided ineffective representation at the sentencing

hearing. 47

Defendant’s ineffective assistance of appellate counsel claim argues appellate

counsel failed to investigate and preserve all viable claims for relief; failed to

effectively communicate; did not argue the reindictment caused a violation of his

speedy trial rights; and did not contend trial counsel should have moved to sever the

indicted offenses.

Third, Defendant claims the police conducted an illegal search of his residence

by rummaging through his home and activating their bodycam recorders when

executing a search warrant.

Fourth, Defendant alleges the trial judge committed “judicial misconduct” by:

asking the jury improper voir dire; refusing to grant a mistrial; giving improper

44 Id. at 7. 45 Id. at 7-8. 46 Id. at 9-11. 47 Id. at 11-12. 11 instructions to testifying witnesses; allowing impermissible changes to the

indictment; and providing the jury an improper jury unanimity instruction during

deliberations.

Finally, Defendant claims the prosecutor committed misconduct by shifting

the burden of proof to the defense; presenting an “improper” Opening Statement and

Closing Argument; and eliciting perjured testimony. He also asserts the

reindictment violated his speedy trial rights; and the use of an easel during the direct

examination of E.G. “misled the jury.” All of Defendant’s claims will be addressed

infra.

III. APPLICATION OF RULE 61’s PROCEDURAL BARS

Before considering the merit of Defendant’s claims, this Court must determine

whether Defendant has first satisfied the procedural requirements of Superior Court

Criminal Rule (“Rule”) 61. 48 Pursuant to Rule 61(i)(1)-(4), a postconviction motion

may be procedurally barred for being untimely, successive, procedurally defaulted,

and/or formerly adjudicated. 49 While Defendant’s Motion was timely filed within

one year of when the judgment of conviction became final, and it is Defendant’s first

postconviction motion, all of his claims except for the ineffective assistance of

48 Taylor v. State, 32 A.3d 374, 388 (Del. 2011) (citing Shelton v. State, 744 A.2d 465, 474 (Del. 1999)). 49 See Rule 61(i)(1)-(4). 12 counsel claims (which cannot generally be raised at trial or on direct appeal), 50 are

procedurally barred pursuant to Rule 61(i)(3), and/or procedurally defaulted

pursuant to Rule 61(i)(4).51

As to the application of Rule 61(i)(3), a Defendant must assert all grounds

leading to the judgment of conviction prior to filing a postconviction motion,

otherwise those claims are procedurally barred. Rule 61(i)(3) provides:

(3) Procedural default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this Court, is thereafter barred, unless the movant shows: (A) Cause for relief from the procedural default and, (B) Prejudice from violation of the movant's rights.

The following claims were not raised in the proceedings leading to the judgment of

conviction and are procedurally barred pursuant to Rule 61(i)(3): (a) the police

conducted an illegal search; (b) judicial misconduct: the trial judge (1) violated

Defendant’s rights to a fair trial and impartial jury; (2) conducted improper voir dire;

(3) provided improper instructions to key state witnesses; and (4) provided a

defective instruction regarding hung jury/unanimity; and (c) all prosecutorial

misconduct claims.

50 See Green v. State, 238 A.3d 160, 175 (Del. 2020); State v. Caulk, 2021 WL 2662250, at *5 (Del. Super. Ct. June 29, 2021). Postconviction claims asserting ineffective assistance of counsel are not generally subject to Rule 61(i)(3)’s procedural bar, as there is no opportunity to raise an ineffective assistance of counsel claim in the proceedings leading to the judgment of conviction or on direct appeal. 51 As Defendant does not address the application of any of Rule 61(i)’s exceptions to the procedural bars, to avoid the application of the procedural bars in Rule 61(i)(3) or (4), the exceptions are inapplicable. 13 Additionally, Rule 61(i)(4) prohibits this Court’s consideration of formerly

adjudicated claims. The Rule provides:

Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred. 52

As discussed supra, Defendant’s arguments relating to whether this Court should

have granted the defense request for a mistrial based on the testimony of Kathy

Cordova, and Defendant’s claim that this Court’s failure to declare a mistrial

compromised his Sixth Amendment right to an impartial jury, were previously

adjudicated on direct appeal and therefore are procedurally defaulted pursuant to

Rule 61(i)(4).

Finally, Defendant did not claim the application of any exceptions to Rule

61’s procedural bars as provided in Rule 61(i)(3)(A)-(B) or Rule 61(i)(5), because

Defendant did not invoke them. 53

52 Rule 61(i)(4). 53 A defendant can avoid the application of the procedural bars in Rule 61(i)(1)-(4) if they can meet the exception noted with respect to the specific applicable bar, or if they can avail themselves of the exception noted in Rule 61(i)(5), which provides: The bars to relief in paragraphs (1), (2), (3), and (4) of this subdivision shall not apply either to a claim that the court lacked jurisdiction or to a claim that satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this rule. Rule 61(d)(2) provides: Second or subsequent postconviction motions. A second or subsequent motion under this rule shall be summarily dismissed, unless the movant was convicted after a trial and the motion either: 14 Therefore, I recommend each of the procedurally defaulted claims noted

supra be summarily dismissed as procedurally defaulted pursuant to Rule 61(i)(3)

and/or formerly adjudicated pursuant to Rule 61(i)(4).

IV. CONSIDERATION OF DEFENDANT’S CLAIMS.

I will now address the merits of Defendant’s claims. As is discussed below,

Defendant’s claims are meritless and do not satisfy Strickland’s heightened

prejudice standard – Defendant has failed to show that counsel’s representation was

unreasonable and but for trial counsel’s alleged errors, the result of the trial would

have been different.

1. Ineffective assistance of trial counsel.

In order to prevail on an ineffective assistance of counsel claim, a defendant

must show: (1) “that counsel’s representation fell below an objective standard of

reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” 54 A

(i) Pleads with particularity that new evidence exists which creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted; or (ii) Pleads with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant’s case and renders the conviction or death sentence invalid. 54 Strickland v. Washington, 466 U.S. 688, 694 (1984). 15 “reasonable probability is a probability sufficient to undermine confidence in the

outcome.” 55

“The standard for judging counsel's representation is a most deferential

one.” 56 There is a strong presumption that counsel’s legal representation was

competent and falls within the “wide range” of reasonable professional assistance. 57

Trial counsel “observed the relevant proceedings, knew of materials outside the

record, and interacted with the client, with opposing counsel, and with the judge.” 58

The seminal question is whether an attorney's representation amounted to

incompetence under “prevailing professional norms,” not whether it deviated from

best practices or most common custom. 59 As such, mere allegations will not suffice;

instead, a defendant must make concrete allegations of ineffective assistance, and

substantiate them, or risk summary dismissal. 60 Deference must be given to defense

counsel’s judgment in order to promote stability in the process. 61

To overcome the strong presumption that trial counsel provided competent

representation, a defendant must demonstrate that “counsel failed to act reasonabl[y]

55 Id. 56 Premo v. Moore, 562 U.S. 115, 122 (2011); also see Flamer v. State, 585 A.2d 736, 753-54 (Del. 1990) (citations omitted). 57 Premo, 562 U.S. at 122-23. 58 Id. 59 Id. (citing Strickland, 466 U.S. at 690). 60 Younger v. State, 580 A.2d 552, 556 (Del. 1990). 61 State v. Fithian, 2016 WL 3131442 at *3 (Del. Super. May 25, 2016) (citing Premo, 562 U.S. at 120-22). 16 considering all the circumstances” and that the alleged unreasonable performance

prejudiced the defense. 62 The essential question is whether counsel made mistakes

so crucial that they were not functioning at the level guaranteed by the Sixth

Amendment, thereby depriving defendant of a fair trial. 63

Because a defendant must prove both parts of an ineffectiveness claim, this

Court may dispose of a claim by first determining that the defendant cannot establish

prejudice. 64 The first consideration in the “prejudice” analysis “requires more than

a showing of theoretical possibility that the outcome was affected.” 65 “It is not

enough to ‘show that the errors had some conceivable effect on the outcome of the

proceeding.’” 66 Defendant must show a reasonable probability of a different result

(i.e., an acquittal) but for counsel’s alleged errors. 67

Defendant argues trial counsel’s performance was deficient in almost every

respect – from pre-trial preparation and investigation to opening statement, cross-

examination, witness selection, closing argument, post-trial sentencing preparation,

and sentencing. Defendant summarily claims trial counsel failed to communicate

with him, advocate for him, and he completed an “inadequate and non-existent

investigation of background work into the indicted offenses, state witnesses and

62 Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 688). 63 Id. 64 Strickland, 466 U.S. at 697. 65 Frey v. Fulcomer, 974 F.2d 348, 358 (3rd Cir. 1992). 66 Harrington v. Richter, 131 S.Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 693). 67 Strickland, 466 U.S. at 695. 17 requested defense witnesses.” 68 Defendant further contends trial counsel failed to

subpoena, interview, investigate or call to testify suggested defense witnesses.

Defendant also asserts trial counsel violated his “professional duty to ensure

the defendant would not be surprised” and argues if trial counsel communicated with

him more, his cross-examinations would have been more effective. 69 Defendant also

claims that if he knew about E.H.’s anticipated uncharged conduct testimony, he

would have “been in a better position in making a proper determination as to

accepting or rejecting the plea.” 70

Trial counsel denies all of Defendant’s ineffective assistance claims. Trial

counsel met with Defendant on numerous occasions “prior to the initiation of the

charges and subsequent to those charges,” 71 and, he received “many, many items of

correspondence indicating factual matters relating to the case which were the subject

matter of investigation.” 72 Trial Counsel reviewed all police reports and statements

of the three alleged victims – all of which he shared with Defendant. Trial counsel

also consulted Defendant so that “Defendant’s insights [were] provided to counsel

in anticipation of trial.” 73 Before trial, trial counsel communicated extensively with

68 D.I. 83, p. 5. 69 Id. 70 Id. at 9. Defendant steadfastly maintained his innocence and the record reflects he knowingly and voluntarily rejected the State’s plea offer. And, he denied, under oath, all sexual misconduct claims. 71 D.I. 93. 72 Id. 73 Id. ¶ 3. 18 Defendant in writing and over Zoom meetings – meeting with Defendant on four

occasions in the month prior to trial “to go over with [Defendant] factual matters

relating to the trial, the testimony that [Defendant] insisted on giving during the trial,

and other matters relevant thereto.” Counsel also communicated with Defendant

throughout the trial and his associate, Molly Dugan, Esquire, was also in regular

contact with him. 74

Trial counsel considered, and ultimately declined to call, the following

defense witnesses: Luis Cordova, Amberlyn Lowry, and a toxicologist.75 As to the

other witnesses Defendant suggested counsel call as witnesses, trial counsel

considered, but ultimately declined to call them, as he concluded they “could be of

no assistance to the defense in the presentation of the case.” 76

As to Defendant’s post-verdict ineffective assistance of counsel claims, trial

counsel found no reason to discuss with Defendant his statement to the presentence

officer before the presentence interview, as Defendant “at all times denied

commission of the offenses and therefore his interview with the Presentence Officer

would only mirror those points.” 77

74 Id. ¶ 5. 75 Id. ¶ 7. 76 Id. ¶ 8. 77 Id. ¶ 10. 19 Finally, trial counsel discussed with Defendant that witness Don Hagans

broke into Defendant’s home with one of the victims, and he elicited testimony to

that effect on cross-examination. 78 He also discussed the State’s plea offer with

Defendant in advance of trial, and defendant chose to reject the plea offer. 79

A review of the trial record does not support Defendant’s ineffective

assistance of trial counsel claims. More importantly, Defendant has failed to

demonstrate prejudice – he has not shown a reasonable probability that but counsel’s

alleged errors, the result of the proceeding would have been different (i.e., that

Defendant would have been acquitted of all charges).

Trial counsel’s affidavit refutes many of Defendant’s claims, and, perhaps

more importantly, a comprehensive review of the trial transcript demonstrates trial

counsel’s performance was objectively reasonable and fell within the wide range of

reasonable professional assistance.

a. Defective opening statement.

Defendant first argues “Counsel’s opening statements to the jury undermined

the defendant’s key interests in his innocence.” 80 He takes issue with trial counsel’s

concession that Defendant acted as a father figure to A.G., even though the evidence

presented by the State at trial demonstrated he acted in a paternal manner toward all

78 Id. ¶ 11. 79 Id. ¶ 12. 80 D.I. 83 at 10. 20 the victims, and his sworn testimony confirmed it. 81 Now, without further

explanation, Defendant argues it was prejudicial to concede this issue. The evidence

of Defendant’s close relationship with A.G. was established by the State’s witnesses,

and Defendant has failed to claim that the result of the trial would have been different

but for counsel’s strategic decision to concede Defendant’s close and paternalistic

relationships in opening statement. Defendant’s claim is meritless.

A review of trial counsel’s opening statement transcript demonstrates that he

was prepared for trial, understood the issues, and delivered an effective opening

statement. The opening statement served as a roadmap for the defense. Trial counsel

initially informed the jury that the case against Defendant was based solely on the

bald accusations of three victims. Trial counsel explained:

So this is a case, you will hear, based entirely, and I say entirely, on the uncorroborated – by corroborated I mean more than just somebody saying something. So in order to corroborate something you might have some other piece of evidence that will make more certain what the person is saying. But when all you have is what a person is saying, then that is not corroborated. So this is a case based entirely on the uncorroborated word of three young boys, two of whom are now adults, all of them directly or indirectly had contact with each other at various times prior to the filing of these charges. A case in which there is no physical evidence, and none was mentioned by the State [it its opening statement]. No DNA. No surveillance. No cell phone evidence. No medical testimony as to anything that was happening. And no contemporaneous disclosures by any of the alleged

81 To provide one example, Defendant testified he helped raise A.G. and agreed to become A.G.’s guardian in 2017. (D.I. 48 at 48:1–16). 21 victims in the case to add weight to the verity of the allegations that are being made. Erik’s allegations before they are even mentioned go back ten or eleven years, all right. Mr. Garcia’s go back at least two years prior to the time they are disclosed, And then we have A.D., and I’ll talk about A.D. and the evidence relating to A.D. when I’m done here. 82

Trial counsel highlighted perceived defects in the prosecution’s case – that the

allegations against Defendant from the three victims were (a) not contemporaneous,

(b) in all instances uncorroborated, and (c) unsupported by any evidence other than

the victims’ allegations – physical or otherwise. 83 Trial counsel explained that the

State would not present any physical evidence, DNA, surveillance or cellphone

evidence, medical testimony or medical records” which could have corroborated the

victims’ claims of sexual abuse. 84

Trial counsel also addressed the allegations related to each victim, identifying

inconsistencies between the victims’ claims of sexual assault and their desires to live

with, and be parented by, the Defendant. For example, with respect to the sexual

assault allegations raised by A.G., trial counsel previewed for the jury text messages

between Defendant and A.G. in 2018, when A.G. expressed a desire to live with

Defendant so that he would be less likely to make “reckless and dumb” decisions

and be “better parented.” 85 A.G. also sent Defendant the following text: “I couldn’t

82 D.I. 46 at 46:2 – 47:4. 83 D.I. 46 at 46:2 – 47:17. 84 Id. 85 Id. at 48:9 – 49:9. 22 ask for a better parent. I must mature and stop acting childish. I’m ready to change

that now. I’m sorry.” 86 Trial counsel used A.G.’s text messages to question the

veracity of A.G.’s sexual abuse claims, suggesting A.G.’s conduct was inconsistent

with a claim of abuse and therefore not credible.

Trial counsel next addressed E.H.’s allegations of Defendant performing oral

sex on him almost daily between 2008 and 2012, 87 telling the jury that in E.H.’s first

police interview, E.H. expressly denied Defendant engaged in intercourse with him,

and did not make any claim of sexual abuse. 88 Trial counsel also obtained E.H.’s

Florida school records, which would show that E.H. was living in Florida for three

of the four years E.H. claimed he was abused by Defendant in Delaware on an almost

daily basis. 89 As a result, trial counsel suggested E.H.’s claims were neither

corroborated nor credible. 90 Finally, after E.H. did make a disclosure of sexual

abuse, he still went on several vacations alone with the Defendant, behavior

inconsistent with a teenage victim of repeated sexual assault who, after being abused,

continues to spend time alone with their assailant. 91

Finally, trial counsel told the jury that victim A.D. did not disclose sexual

abuse until A.D. spoke with Don Hagans, who was “out to get” the Defendant and

86 Id. at 49:19-21. 87 Id. at 52: 6-10. 88 Id. at 52:15-21. 89 Id. at 52:11-14. 90 Id. at 53:4-14. 91 Id. at 54:1-12. 23 had motive to put Defendant in jail so he could “take over his finances.” 92 And,

A.D. claimed to have been sexually assaulted by Defendant, “just like A.G.,” but

A.D. conceded at trial he did not speak to A.G., suggesting A.D.’s disclosure was

not credible. 93

Defendant’s claim that trial counsel was unprepared for opening statement is

not supported by the record. Defendant has not identified any credible record

evidence that trial counsel was unprepared. The opposite is true, and Defendant’s

claim is meritless.

b. Ineffective witness cross-examination.

Defendant next argues “counsel failed to test the adversarial system with an

insufficient cross-examination of critical state’s witnesses . . .” 94 He later asserted

trial counsel “failed to effectively cross-exam E.H. with trial prep notes prepared by

the State” regarding the fact that E.H. had also been provided pills by Defendant. 95

Defendant speculates that if counsel had asked E.H. about the pills, “it would have

led to reasonable doubt as to the veracity of E.H.’s claims.” 96

Delaware courts have long recognized that whether to call a witness, and how

to cross-examine those who are called, are tactical decisions left to counsel’s

92 Id. at 55:9–23. 93 The jury acquitted Defendant as to all charges related to A.D. 94 D.I. 83 at 5. 95 Id. at 17. 96 Id. 24 judgment alone. 97 So long as the decision to cross-examine a witness is made

reasonably, it does not constitute a basis for a claim of ineffective assistance of

counsel. 98 Trial counsel is provided considerable discretion whether or how to cross-

examine a witness, and a review of the record transcript demonstrates trial counsel’s

cross-examination of E.H. was reasonable and effective. And, E.H. conceded on

cross-examination that his four-year claim of being sexually assaulted almost daily

was impossible, since he lived in Florida for three of those four years. Defendant

cannot demonstrate prejudice, and the claim is meritless.

c. Failure to investigate.

Defendant argues trial counsel failed to properly investigate the State’s

prosecution. When considering a failure of the duty to investigate claim, the

Delaware Supreme Court has held:

Strickland does not require that counsel pursue every line of investigation no matter how unlikely to uncover helpful evidence it would be. The duty to investigate requires only that investigatory decisions be reasonable. It does not require that a criminal defense attorney leave no stone unturned and no witness unpursued. This is because defense lawyers have limited time and resources, so they must choose among countless strategic options. 99

97 State v. Saavedra, 2025 WL 3771270, at *8 (Del. Dec. 30, 2025) (citing Shelton, 744 A.2d at 479. 98 Id. 99 Id. at *10 (citing Cooke v. State, 383 A.3d 418, 469 (Del. 2025)) (cleaned up). 25 Defendant has failed to identify any compelling evidence counsel should or would

have discovered during a pre-trial investigation other than what was reviewed, and

he has failed to show how that omission establishes prejudice under Strickland. 100

As the Supreme Court held in Cooke v. State, a Defendant’s “bald assertion that

counsel could have conducted a more granular investigation cannot overcome the

strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” 101

The record reflects that trial counsel investigated, inter alia, E.H.’s Florida

school records, records which contradicted E.H.’s claim that Defendant performed

oral sex on him almost every day for four years, and trial counsel used text messages

between the Defendant and E.G. to impeach E.G.’s claim that Defendant sexually

assaulted him. Trial counsel’s investigation was reasonable, and Defendant has

failed to demonstrate that conducting additional investigative efforts would have

affected the outcome of the trial – i.e., that the result of the proceeding would have

100 Defendant argues trial counsel should have investigated the alleged crime scene, where he “would have been able to secure items that were allegedly used in the abuse of A.G.: the grey laptop, the black chair and the towel,” and he speculates that “the items could have been forensically tested to refute the allegations.” D.I. 83 at 13-14. Trial counsel’s investigation was reasonable under the circumstances, and there is no reason to conclude unspecified “forensic testing” would have led to the discovery of incriminating evidence, or that the absence of incriminating evidence would have resulted in the only outcome favorable to Defendant – that he was innocent in fact of the indicted offenses. 101 Id. (citing Cooke, 338 A.3d at 469 (quoting Thompson v. State, 296 A.2d 872, 878 (Del. 2023)). 26 been different if additional investigative steps were taken. Defendant’s claim is

meritless.

d. Failure to call witnesses.

Focusing next on Defendant’s claim that trial counsel failed to call

several witnesses to testify during the defense case, the Supreme Court has held that

whether to call a witness, and how to cross-examine those who are called, are

strategic decisions. 102 “[S]trategic choices made after thorough investigation of the

law and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations on

investigation.” 103 So long as the decision to call a witness or to cross-examine a

witness is made reasonably, it will not constitute a claim of ineffective assistance of

counsel. 104 And here, Defendant has failed to establish trial counsel’s decision with

regard to witness presentation was unreasonable.

The record reflects trial counsel did consider whether Defendant’s suggested

witnesses should be called as part of the defense case, but he ultimately concluded

those witnesses could not assist the defense. 105 And, trial counsel did call four

102 Saavedra, 2025 WL 3771270, at *8 (citing Shelton, 744 A.2d at 479). 103 Ploof, 75 A.3d at 821 (quoting Strickland, 466 U.S. at 690-91). 104 Id. 105 D.I. 93 ¶¶ 7-8. 27 witnesses – Lanean Gilmore, 106 Jennifer Wheatley, 107 Detective Joshuah Smith, 108

and the Defendant 109 – during the presentation of the defense’s case at trial.

Defendant’s claim is meritless.

e. Defective closing argument.

Defendant argues trial counsel’s closing argument was “constitutionally

ineffective.” 110 Specifically, Defendant contends it was improper to inform the jury

that the charges against him were serious. Defendant explains this argument as

follows:

Counsel’s closing statements during trial and argument during sentencing were constitutionally ineffective. During closing, counsel “unnecessarily stressed the seriousness of E.H.’s charges. Trial counsel on three separate occasions mentions the “seriousness of the charges.” “Rape in the second degree, which is the most serious. . .” Rape second degree is the most serious. . .. [E.H.’s] charge is the most serious charge, rape in the second degree.” Counsel telling the jury, “it is not an easy thing to return a verdict of not guilty” completely goes against the best interest of the client. 111

Defendant’s argument is misplaced. Rape in the Second Degree was the most

serious indicted offense. It is a Class B violent felony, requiring a mandatory

sentence of ten years incarceration at Level V, up to twenty-five years imprisonment.

It is one of Delaware’s most serious charges. Trial counsel’s statements were

106 D.I. 49 at 217:6 – 226:19. 107 Id. at 236:3 – 246:7. 108 Id. at 249:9 – 261:5. 109 D.I. 48 at 50:13 – 103:16. 110 D.I. 83 at 11. 111 Id. 28 factually accurate and communicated to the jury the serious import of the

deliberations they were to engage in and the verdict they were required to consider.

Strickland’s demanding standard requires the Defendant establish prejudice –

that but for trial counsel’s alleged errors, the outcome of the proceeding would have

been different. In closing argument, trial counsel did not concede guilt as to this or

any other charged offense, and he did not minimize the jury’s need to meaningfully

deliberate when reaching a verdict. Defendant has failed to identify any fact(s) that

the jury could have relied upon which would have led them to reach a not guilty

verdict as to any other additional counts assuming an alternative closing argument.

Moreover, a review of trial counsel’s closing argument demonstrates trial

counsel gave a reasonable, effective presentation. 112 Trial counsel’s closing

argument fell within the “wide range of reasonable professional assistance” expected

by a competent attorney. Defendant has failed to identify any defective or

prejudicial argument or specific prejudice resulting from trial counsel’s closing

argument. In fact, Defendant being found not guilty as to four of the remaining nine

counts of the superseding indictment “rebuts any assertion of prejudice.” 113

112 D.I. 47 at 49:23 – 95:23. 113 State v. Morse, 2016 WL 3044734, at *6 (Del. Super. Ct. May 11, 2016) (“Defendant's arguments regarding ineffective assistance of counsel with regard to the closing arguments fail because, again, defendant does not attempt to show prejudice from [defense counsel’s] closing. Defendant's being found not guilty on 2 counts and guilty of a lesser included charge on 1 count certainly rebuts any assertions of prejudice.”) 29 f. Failure to prepare Defendant for the presentence interview.

Defendant argues trial counsel was ineffective for failing to prepare him for

the presentence interview. Trial counsel denies this claim, asserting that Defendant

steadfastly maintained his innocence, and he expected Defendant to maintain his

innocence during the presentence interview, making additional preparation

unnecessary.

At trial, Defendant explicitly denied the sexual abuse allegations levied by all

three victims. 114 As to victim A.D., the jury found the State did not prove

Defendant’s guilt beyond a reasonable doubt. However, the jury unanimously

concluded the State proved beyond a reasonable doubt that Defendant was guilty of

the offenses involving E.H. and A.G.. A reasonable interpretation of the verdicts is

that the jury accepted the testimony of E.H. and A.G. as credible (as there was no

corroborating evidence presented by the State to support the charged offenses), and

did not find Defendant’s denials believable or compelling. Defendant’s testimonial

denials were consistent with the position he maintained with trial counsel before and

throughout the trial – that he never engaged in sexual activity with any victim.

Defendant cannot demonstrate prejudice from trial counsel’s failure to prepare him

114 Defendant denied all allegations of sexual assault/misconduct. He denied placing his hand on A.G.’s butt (D.I. 48 at 56:6-16); forcing A.G. to masturbate (D.I. 48 at 65:1-5); also see D.I. 48 at 83:9 – 84:6) or possessing a stimulator machine which he would attach to A.G.’s genitals. D.I. 48 at 80:10-22. Defendant also denied engaging in oral sex with E.H. (D.I. 48, 87:4--8); and having any sexual contact with A.D. D.I. 48 at 93:13-15. In fact, Defendant summarily denied engaging in any sexual contact with all three purported victims. D.I. 48 at 103:8-11. 30 for the presentence interview. Defendant was not expected to admit wrongdoing to

the presentence officer, and he testified under oath consistent with same. Defendant

has not identified prejudice he suffered from not receiving presentence interview

advice from counsel. Defendant’s claim is meritless.

g. Failure to show Defendant the presentence report prior to sentencing.

Defendant claims trial counsel failed to share the contents of the presentence

report prior to sentencing. In Delaware, a defendant has a qualified right to review

a presentence report through counsel. Superior Court Criminal Rule 32(c)(3)

provides:

At least 7 days before imposing sentence, unless this minimum period is waived, the court shall allow the defendant's counsel or, when the defendant is acting pro se, the defendant and the attorney general to read the report of the presentence investigation, including the information required by subdivision (c)(2) but not including any final recommendation as to sentence.

As Defendant was represented by counsel, he did not have an absolute right

to review the presentence report. But, even if Defendant was entitled to review the

report with trial counsel, he has failed to articulate prejudice. In State v. Dombrosky,

this Court addressed a similar claim where a defendant alleged trial counsel failed

to review the presentence report before sentencing, ultimately holding that

"defendant has failed to show what prejudice he suffered from counsel not reviewing

the information" and that the defendant "has not shown that by reviewing the PSI

report counsel could have done anything which would have resulted in a different 31 outcome of the sentence." 115 Defendant has similarly failed to establish prejudice,

and he has not explained how allowing him to review the presentence report would

have resulted in a different sentence. Defendant’s claim is meritless. 116

Defendant also generally claims trial counsel’s performance at sentencing was

unreasonable, quoting trial counsel as saying, “[there’s] not much for me to say at

sentencing,” and to Defendant, that statement amounted to “nothing.” 117 But

Defendant did not comprehensively quote trial counsel’s statement. What trial

counsel said to this Court was:

Your Honor – I am -- as always in cases of this nature where there is a trial in which the defendant denies commission of the offenses, there is not much for me to say at sentencing. There is a lot of mandatory time here, as the Court knows. I can’t really take issue. We had a trial and Mr. Williams had an opportunity to present his side of the case to the jury who rejected it on most of the – well, several of the counts. So we ask the Court to be reasonable in the sentence. Thank you. 118

While Defendant contends trial counsel’s brief remarks were ineffective, he has

failed to articulate what trial counsel should have said at sentencing that would have

resulted in a different or more lenient sentence, and he fails to acknowledge that part

of trial counsel’s reticence was based on the fact that Defendant denied the sexual

115 State v. Dombrowski, 1999 WL 743672, at *5 (Del. Super. Ct. Aug. 10, 1999). 116 Defendant also claims trial counsel failed to meet his “professional duty to ensure [he] would not be surprised.” D.I. 83 at 7-9. There is no such duty. Trials are unpredictable and surprises are common. Defendant’s subjective suggestion that if counsel shared more information with him would have resulted in a better or more productive performance does not constitute prejudice. 117 D.I. 83 at 12. 118 D.I. 53 at 11:7-20. 32 assault allegations under oath at trial and was nevertheless convicted. Defendant’s

claim is meritless. 119

Finally, Defendant suggests this Court’s jury instruction as to the element of

intent in the Rape Second Degree charge was erroneous. 120 It was not. 121

Although Defendant contends trial counsel was ineffective in almost every

aspect of representation, it is important to recognize that, upon the State proceeding

with a superseding indictment, Defendant was facing the prospect of being convicted

for twenty offenses. 122 Trial counsel successfully argued a Motion for Judgment of

Acquittal, the result being this Court granting trial counsel’s motion as to six pending

felony charges. 123 And, after meaningful deliberation, the jury acquitted Defendant

119 Defendant also contends counsel was ineffective for failing to “properly investigate the defendant’s prescription medication history. . ..” Not so. First, trial counsel is not required to investigate every aspect of a prosecution – counsel is only required to act reasonably. And here, Defendant spent considerable time testifying about his prescription medication intake and history, and he has failed to articulate how investigating his prescription medication history would have benefitted the defense. D.I. 48 at 65:6 – 67:6. 120 D.I. 83 at 16. 121 Compare this Court’s jury instruction defining “intentionally” – “intentionally means it was Defendant’s conscious object or purpose to have sexual intercourse with the person;” with 11 Del. C. § 231(b)(1) – “(b) “Intentionally”. -- A person acts intentionally with respect to an element of an offense when: (1) if the element involves the nature of the person’s conduct or a result thereof, it is the person’s conscious object to engage in conduct of that nature or to cause that result.” 122 D.I. 23. 123 D.I. 34 at 4; also see D.I. 48 at 1:4 – 32:21. 33 of four of the nine remaining charges. 124 Defendant’s ineffective assistance of trial

counsel claim is meritless.

2. Ineffective assistance of appellate counsel.

When considering a claim of ineffective assistance of appellate counsel, this

Court applies the same as Strickland standards discussed infra – a defendant must

demonstrate appellate counsel’s representation fell below an objective standard of

reasonableness, and there remains a reasonable probability that, but for appellate

counsel’s errors, the result of the appeal would have been different. 125 In this

context, there is a presumption that appellate counsel’s representation was

professionally reasonable, 126 and a defendant must raise concrete allegations of

actual prejudice and substantiate them to warrant relief. 127

In addition, to establish that appellate counsel’s performance was

unreasonable, a Defendant must also

show that counsel failed to find arguable, nonfrivolous issues to appeal and to file a brief raising them. Appellate counsel need not raise every nonfrivolous claim, but rather may select arguments that maximize the likelihood of success on appeal. Therefore, when appellate counsel files a merits brief raising issues for consideration on appeal, a defendant who argues that counsel was ineffective for failing to raise an argument on appeal must show that the argument that was not

124 D.I. 34 at 2. 125 Ryle v. State, 2020 WL 2188923 at *2 (Del. May 5, 2020), citing Harris v. State, 2018 WL 3239905, at *2 (Del. July 2, 2018) (citing Strickland, 466 U.S. at 687-88). 126 Id. (citing Albury v. State, 551 A.2d 53, 59 (Del. 1988)). 127 Id. (citing Younger v. State, 580 A.2d 552, 556 (Del. 1990)). 34 presented was “clearly stronger” than the arguments that were presented. 128

Defendant contends appellate counsel provided ineffective representation

because he “failed to properly investigate and preserve all viable claims for relief on

direct appeal.” 129 Additionally, Defendant argues appellate counsel failed to

communicate with him and allow him to be “an active participant in the appellate

stage.” 130 Defendant identified two potential appellate issues that were not raised in

the direct appeal – (a) that the reindictment violated his speedy trial rights, 131 and (b)

trial counsel’s failure to move to sever the offenses prior to trial, specifically citing

to “the nature and number of charges to which defendant would be required to offer

multiple defenses thus causing potential confusion with the jury.” 132 But Defendant

does not claim those issues were “clearly stronger” than the issues raised by appellate

counsel.

In response, appellate counsel submitted an affidavit 133 and an amended

affidavit 134 denying Defendant’s claims. Appellate counsel “maintained contact

with [Defendant] through written correspondence and phone calls, informed

[Defendant] of all significant case developments, and provided copies of the filed

128 Id. (citing Neal v. State, 80 A.3d 935, 946 (Del. 2013)). 129 Id. at 20. 130 Id. 131 Id. at 22. 132 Id. 133 D.I. 88. 134 D.I. 92. 35 briefs and orders.” 135 He also “raised arguments reasonably available based on the

record from trial court proceedings, including those most likely to provide relief on

appeal,” 136 and asserted he “thoroughly reviewed the trial record, transcripts, and

relevant legal authorities,” conducting the necessary legal research to present

Defendant’s claims to the Supreme Court. 137

On October 23, 2022, appellate counsel timely filed an Opening Brief, and on

February 22, 2023, he participated in oral argument before the Supreme Court.

Attached to appellate counsel’s affidavit are communications between himself,

Defendant and Jennifer Wheatley, among others, discussing substantive issues

considered for the direct appeal. Appellate counsel argues Defendant’s allegations

are “conclusory and unsupported by any specific facts or record evidence.” 138

A review of the record demonstrates Defendant’s ineffective assistance of

appellate counsel claim is meritless. Defendant has failed to show that appellate

counsel’s representation fell below an objective standard of reasonableness, and but

for appellate counsel’s errors, the result of the appeal would have been different.

And, he has not shown that his proposed claims are “clearly stronger” than the ones

raised and argued by appellate counsel. The presumption that appellate counsel’s

135 D.I. 88 ¶ 5. This contact included maintaining regular contact with Jennifer Wheatley, who hired appellate counsel on Defendant’s behalf. D.I. 92 ¶ 10. 136 Id. ¶ 6. 137 Id. ¶ 7. 138 D.I. 92 ¶ 11. 36 performance was professionally reasonable is supported by the record. The

Defendant has failed to demonstrate that an argument not presented, whether it be

an alleged violation of his speedy trial rights or the failure to request a severance of

offenses, was “clearly stronger” than the arguments which were presented to the

Supreme Court. The merit of Defendant’s proposed arguments are briefly addressed

below.

a. Speedy trial.

Defendant claims that the superseding indictment infringed on his right to a

speedy trial. This claim fails for two reasons. First, Defendant has not explained

how a speedy trial claim survives the well-established legal analysis of the United

States Supreme Court in Barker v. Wingo, 139 or how the application of Barker’s four-

factor balancing test would result in a successful speedy trial claim. Defendant has

not addressed the length of the delay, the reason for the delay, the assertion of his

right to a speedy trial, and the resulting prejudice.

Second, Defendant’s speedy trial claim is not supported by the record. The

docket reflects that this Court issued a scheduling Order on May 17, 2021, setting a

trial date of June 28, 2021.140 Approximately nine days later, the State requested a

continuance of the trial date due to attorney unavailability, and on June 3, 2021 this

139 Barker v. Wingo, 407 U.S. 514 (1972). 140 D.I. 15. 37 Court granted the State’s request, 141 rescheduling the trial to November 1, 2021. On

June 30, 2021, this Court rescheduled the trial date a second time to November 15,

2021 at Defendant’s request because of attorney unavailability. 142 A revised

scheduling Order was issued on June 30, 2021, confirming the trial date of

November 15, 2021. 143

The State obtained a superseding indictment on October 25, 2021, but the trial

date did not change. 144 On November 1, 2021, Defendant rejected a plea at final

case review, and trial began on November 12, 2021, three days earlier than noted on

the trial scheduling Order. 145 The trial date was neither amended nor extended due

to the superseding indictment. There is no speedy trial violation.

b. Motion to sever.

As to Defendant’s second claim – that trial counsel should have filed a motion

to sever and appellate counsel should have raised this claim on direct appeal, this

claim is equally suspect. First, his assertion that severance was appropriate due to

“the nature and number of charges to which defendant would be required to offer

multiple defenses this causing potential confusion with the jury” is not credible. The

defense(s) as to all victims were consistent – Defendant did not commit the charged

141 D.I. 18. 142 D.I. 19. 143 D.I. 20. 144 D.I. 23. 145 D.I. 31. 38 offenses, there is no corroborating evidence, the victims were not credible, and the

State’s evidence was insufficient to prove otherwise. In fact, the prosecution case

as to each victim was the same – delayed disclosures of sexual assault allegations by

young male victims, two of whom are brothers, all lacking corroboration.

Defendant’s claim that the charges caused potential confusion by the jury are

speculative and belied by the fact that the jury (a) submitted two notes to the Court

for clarification during deliberations, and (b) returned four not guilty verdicts as to

victim A.D. – demonstrating the jury independently considered each indicted

offense. Defendant has not identified any evidence suggesting the jury was

confused.

Moreover, to raise a severance claim on direct appeal when it was not raised

in the trial court, Defendant’s argument would be limited on appeal because the

Supreme Court generally declines to review contentions not fairly presented to the

trial court for decision unless the justices find “that the trial court committed plain

error requiring review in the interests of justice.” This standard requires an error so

“clearly prejudicial to [a defendant’s] substantial rights as to jeopardize the very

fairness and integrity of the trial process.” 146 And here, Defendant has failed to

articulate how severance of offenses was appropriate or how appellate counsel

146 Hoskins v. State, 102 A.3d 724, 728 (Del. 2014). 39 would have established plain error, and he has not demonstrated prejudice – that the

result of the proceeding would have been different if the offenses were severed.

3. The police conducted an illegal search.

Defendant’s third claim is that the police engaged in an (a) exploratory

rummaging of his home by exceeding the scope of the search warrant, and (b)

conducted an “illegal search” because they activated their body cam recorders when

executing a residential search warrant at his home. 147 As to Defendant’s first claim,

the scope of a search pursuant to a warrant is limited by the objects the police are

authorized to search for and seize. Here, Defendant’s conclusory statement fails to

provide specific facts how the police exceeded the scope of the search warrant.

Second, Defendant has provided no legal authority for the proposition that

conducting a search authorized by a duly issued search warrant while recording the

search with bodycam devices is illegal. In fact, it is not illegal, and doing so serves

to protect the police from future claims that they violated the rights of the property

owner during the execution of a search warrant. The contemporaneous recording by

law enforcement memorializes the search for potential future review. Defendant has

failed to articulate any illegal behavior by law enforcement in searching the

residence, and he has not claimed that the police exceeded their authority in seizing

property not authorized in the search warrant. In fact, the record reflects that no

147 D.I. 58 at 3. 40 property was seized. Defendant’s claim is meritless, and he has failed to demonstrate

prejudice.

4. Judicial Misconduct.

Defendant argues that the Judge committed misconduct by failing to ask jurors

about familiarity with locations in voir dire, failing to grant mistrial requests,

improperly instructing State’s witnesses, and improperly responding to a jury

question.

a. Improper voir dire.

Considering each judicial misconduct claim independently, as to the trial

Judge’s failure to ask a question during voir dire, Defendant has not identified a

defect in the jury selection process, nor has he explained how the Judge’s purported

failure to ask a particular voir dire question regarding a potential juror’s familiarity

with a particular location prejudiced him, or that an answer to that question would

be somehow disqualifying. This claim is meritless.

b. Failure to grant a mistrial. 148

Defendant contends this Court erred in not granting trial counsel’s mistrial

applications. The record reflects trial counsel repeatedly objected when he believed

the State exceeded the limitations of the direct examination of witnesses imposed by

148 This claim is procedurally barred pursuant to Rule 61(i)(4), as it was previously adjudicated on direct appeal. 41 the judge, and appellate counsel effectively argued the trial court should have

declared a mistrial based on Defendant’s conduct. And the Supreme Court rejected

Defendant’s claim that the trial court failed to grant the Defense’s mistrial requests

in the absence of a sua sponte mistrial declaration, concluding the trial court did not

abuse its discretion in denying defense counsel’s requests for a mistrial. Applying

Taylor v. State, 149 the Supreme Court concluded the trial judge did not abuse her

“considerable discretion” when she, inter alia, provided the jury a curative

instruction to disregard specific comments made during witness testimony. 150

c. Improper witness instructions.

Defendant argues it was improper for the trial judge to direct Ms. Cordova,

E.H. and A.G. to respond “yes” or “no” to questions. The Supreme Court has held

a trial judge is responsible for management of the trial and is vested with the broad

discretion to perform that function. 151 In addition, Delaware Rule of Evidence

(“DRE”) 611 provides the trial judge authority to determine the mode and manner

of a witness’s testimony. DRE 611 provides:

(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to

149 690 A.2d 933 (Del. 1997). 150 Williams, 296 A.3d at 903. 151 Czech v. State, 945 A.2d 1088, 1095 (Del. 2008). 42 (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

Given the witness’s inability to follow the Prosecutor’s instructions, the trial Judge’s

limiting the witness’s answers was proper, and the Defendant cannot establish

prejudice. This claim is meritless.

d. Allowing impermissible substantive changes to the Indictment.

Defendant contends the trial judge “allowed impermissible substantive

changes to [the] indictment shifting [the] burden to [the] defense. 152 Defendant’s

claim is not supported by the record. As the trial date approached, the State

presented a superseding indictment to the Grand Jury. After considering the

evidence presented by the State, the Grand Jury issued a true bill as to the charges

in the superseding indictment. The trial judge was not involved with the superseding

indictment, and there is no evidence the language in any revised or newly included

charge in the superseding indictment “shifted the burden [of proof] to the defense.”

Defendant’s claim is not supported by the record.

e. Response to jury deliberations regarding hung jury/unanimity.

Finally, the record reflects there were two questions asked by the jury for

clarification during deliberations. The first inquired whether the jury could “use the

152 D.I. 58 at 4. 43 bodycam footage at A.I. Hospital as testimony and reference in our deliberations.” 153

This was followed by a second question that Defendant argues was improper --

specifically when the jury asked “do we need to be unanimous on each separate

count?” 154 In addressing this second juror note, the judge instructed the jury as

follows, consistent with Delaware law and the jury instructions:

On the verdict sheet it says members of the jury, there are nine counts in this case and therefore nine separate verdicts would be required. And at the bottom of that it says, on the very last page, your verdict must be unanimous, and I would add, as to each count. 155

The trial judge’s response to the jury was a correct statement of law, and it referred

the jurors to the jury instructions and verdict sheet. In Delaware and every other

state and federal court in the United States, jury verdicts in a criminal prosecution

must be unanimous as to each charged offense. 156 Defendant’s claim is meritless.

5. Prosecutorial Misconduct.

a. The Prosecution shifted the Burden of Proof. b. State’s Opening and Closing Statements were Improper. c. The State Elicited Perjured Testimony.

Defendant asserts, without factual support, evidence or authority, that (1) the

Prosecutor shifted the burden of proof; (2) the State’s opening statement and closing

arguments were improper; and (3) the State elicited perjured testimony. Defendant

153 D.I. 43 at 2:9-11; 3:1-3. 154 Id. at 5:1-2. 155 Id. at 7:12-18. 156 See Ramos v. Louisiana, 590 U.S. 83 (2020). 44 has failed to articulate and support these claims with specific facts, and he cannot

demonstrate prejudice. These claims are meritless.

d. The reindictment violated Defendant’s speedy trial rights.

Defendant alternatively claims the State’s re-indictment in October 2021 was

a violation of his speedy trial rights and did not provide counsel sufficient time to

prepare a defense. This claim is meritless. As is noted supra in footnote 13, the

amendments resulting in the superseding indictment were ministerial and did not

result in a speedy trial violation. Trial counsel did not object to the superseding

indictment and the record does not reflect that counsel was unprepared for trial or

that the ministerial amendments to several charges and the inclusion of one count of

Sexual Solicitation of a Child impeded trial counsel’s ability to prepare a defense.

Defendant’s claim is speculative, meritless, and he has failed to demonstrate

e. The State’s Use of an Easel.

Defendant argues “the State’s use of an easel to chart off specific year, age

[and] grade configurations impermissibly shifted the burden of proof onto the

defendant.” 157 This claim is meritless, as the prosecutor contemporaneously

recorded on the easel the live testimony of A.G. during A.G.’s direct examination.

Defendant does not allege the content of the writing on the easel was inaccurate or

157 D.I. 83 at 25. 45 inconsistent with A.G.’s testimony. The use of an easel as a demonstrative aid is

permissible pursuant to Delaware Rule of Evidence 611, and the content of the

writing on the easel is not evidence. The witness’s testimony was evidence.

f. Prosecutor’s improper statements.

Defendant argues the prosecutor “made improper statements which included

areas deemed off limits by the Court in a pre-trial hearing.” According to Defendant,

those limitations included preclusion of references to the Defendant acting as a father

figure to the victims in part due to the absence of the victims’ birth fathers. 158

Defendant contends the “State knew, or should have known” that E.H.’s “father

figure,” Luis Cordova, was present for both E.H and A.G. when A.G. moved into

Defendant’s residence in 2009, and for A.G. when A.G. moved into Defendant’s

home. In fact, Defendant states Luis Cordova “signed off on the guardianship

paperwork in 2017.” 159

Defendant’s claims do not demonstrate the State knowingly offered false

testimony or violated Defendant’s constitutional rights. As has been discussed

supra, several witnesses testified Defendant was a parental figure to the victims, and

Defendant conceded same during his testimony. Defendant’s claim is meritless.

158 D.I. 83 at 24. 159 Id. at 25. 46 V. CONCLUSION

For the foregoing reasons, I recommend the claims raised in Defendant’s pro

se Motion for Postconviction Relief be SUMMARILY DISMISSED as

procedurally barred and/or substantively meritless. I also recommend

postconviction counsel’s Motion to Withdraw be GRANTED.

IT IS SO RECOMMENDED.

/s/ Martin B. O’Connor Commissioner Martin B. O’Connor