Submitted: July 5, 2013.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below— Superior Court of the State of Delaware, in and for New Castle County, Cr. ID No. 0903001739.
Before BERGER, JACOBS and RIDGELY, Justices.
JACK B. JACOBS, Justice.
This 24th day of September 2013, upon consideration of the parties' briefs and the record on appeal, it appears to the Court that:
(1) The appellant, David Merritt, filed this appeal from the Superior Court's January 25, 2013 denial of his first motion for postconviction relief under Superior Court Criminal Rule 61 (" Rule 61" ). We conclude there is no merit to the appeal and affirm the Superior Court's judgment.
(2) The record reflects that, on March 1, 2010, a Superior Court jury convicted Merritt of eight counts of Rape in the First Degree and one count of Continuous Sexual Abuse of a Child. On May 14, 2010, the Superior Court sentenced Merritt to a total of 127 years at Level V. On direct appeal, we affirmed the Superior Court's judgment.
(3) Merritt filed his motion for postconviction relief in December 2011. The motion, as later amended in May 2012, raised the following seven claims: (i) inaccurate and untimely trial transcripts; (ii) prosecutorial misconduct; (iii) trial judge error when failing to strike prosecutor's improper questions or give a curative instruction; (iv) insufficient evidence of penetration; (v) flawed indictment and improper amendment of indictment; (vi) improper trial judge ex parte contact with jury, and (vii) ineffective assistance of trial and appellate counsel. Merritt also sought the appointment of counsel and an evidentiary hearing.
(4) Merritt's postconviction motion, amendment, and related motions were referred to a Commissioner for a report and recommendation. At the Commissioner's direction, Merritt's trial and appellate counsel filed an affidavit in response to the ineffective assistance of counsel claims, and the State filed a response and supplement to the postconviction motion as amended. Merritt also filed a reply.
(5) By report dated November 20, 2012, the Commissioner recommended that Merritt's postconviction motion should be denied on the grounds that the ineffective assistance of counsel claims were without merit and that the remaining claims were procedurally barred under Rule 61(i)(3) without exception. After considering Merritt's objections to the report and the State's response to the objections, the Superior Court, upon de novo review, adopted the Commissioner's report and denied Merritt's postconviction motion. This appeal followed.
(6) Having carefully considered the parties' briefs and the record of Merritt's trial, we conclude that the Superior Court's judgment should be affirmed on the basis of the January 25, 2013 order that adopted the Commissioner's well-reasoned report and recommendation. On appeal, Merritt argues only that his trial counsel " failed to contemporaneously object to the State's failure to produce sufficient evidence to establish penetration."  Simply stated, Merritt's claim does not withstand scrutiny under Strickland. Our review of the record reveals no evidence that Merritt's trial ...