Submitted: August 8, 2018
Below: Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
F. Traynor, Justice
This appeal is from the Superior Court's summary
dismissal of the appellant's second motion for
postconviction relief under Superior Court Criminal Rule
The State has moved to affirm the Superior Court's
judgment on the ground that it is manifest on the face of the
appellant's opening that the appeal is without merit. We
agree and affirm.
appellant, David Merritt, was tried in 2010 on charges that
he sexually abused a minor. At the close of the State's
case, Merritt's trial counsel moved unsuccessfully for a
judgment of acquittal. The jury convicted Merritt of eight
counts of Rape First Degree and one count of Continuous
Sexual Abuse of a Child. On direct appeal, Merritt's
appellate counsel argued that he was denied the right to
proceed pro se at trial. We concluded that the claim
was without merit and affirmed Merritt's
Merritt's first motion for postconviction relief as
amended and his related motions for the appointment of
counsel and for an evidentiary hearing were referred to a
Superior Court Commissioner. After considering counsel's
affidavit responding to the allegations of ineffective
counsel, the State's response to the motion, and
Merritt's reply, the Commissioner issued a report
recommending that the postconviction motion and other motions
should be denied. The Commissioner determined, in relevant
part, that Merritt's stand-alone claims of prosecutorial
misconduct and insufficient evidence were procedurally barred
under Rule 61 because the issues were raised and ruled on at
trial and were not pursued on direct appeal. The Commissioner
determined that the ineffective counsel claims were without
merit because Merritt did not establish any deficiencies in
his counsel's representation or any prejudice from the
alleged deficiencies. After considering Merritt's
objections to the report and recommendation and conducting a
de novo review of the record, the Superior Court
adopted the report and recommendation and denied
Merritt's first motion for postconviction relief.
appeal from the denial of his first motion for postconviction
relief, Merritt argued that his trial counsel failed to
effectively challenge the sufficiency of the State's
proffered evidence of penetration, an essential element of
first degree rape. We disagreed and affirmed the Superior
Merritt's second motion for postconviction relief raised
the same claims as his first postconviction motion. Merritt
also filed numerous motions in conjunction with the motion,
including a motion to withdraw the postconviction motion and
to replace it with another version of the motion. The motion
to withdraw and replace was granted by the Superior Court.
Merritt's replacement postconviction motion raised two
claims of ineffective assistance of counsel. Merritt claimed
that he would have been granted a directed verdict or a
judgment of acquittal based on insufficient evidence of
penetration had his trial counsel timely objected to the
prosecutor's use of an "anatomically incorrect"
hand gesture simulating a penis penetrating a vagina. Second,
Merritt claimed that his trial counsel's failure to
interview an eyewitness- namely, the complaining witness'
younger sister-deprived him of an actual innocence defense.
According to Merritt, had the jury heard the trial testimony
of the complainant's younger sister, he would have been
found not guilty because the younger sister would have
testified that she was not aware of any abuse. Merritt
contends that evidence of the younger sister's lack of
awareness of the alleged sexual abuse was crucial to his
defense because it contradicted the complaining witness'
testimony that her younger sister was in the room when some
of the sexual abuse occurred.
order dated January 29, 2018, the Superior Court summarily
dismissed Merritt's second postconviction motion under
Rule 61(d)(2). On appeal from that decision, Merritt
argues that the Superior Court erred when summarily
dismissing the motion. His argument is without merit.
Rule 61(d)(2) provides:
A second or subsequent motion under this rule shall be
summarily dismissed, unless the movant was convicted after a
trial and the motion either:
(i) pleads with particularity that new evidence exists that
creates a strong inference that the movant is actually
innocent in fact of the acts underlying the ...