State v. Velez

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
Plaintiff, )
)
)
v. ) Cr. ID. Nos. 2212006162
) 2303008901
WILSON VELEZ, )
)
Defendant. )

Submitted: July 3, 2025
Decided: September 12, 2025

COMMISSIONER’S REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF

William Leonard, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware, Attorney for the State.

Wilson Velez, Chester County Prison, 501 S. Wawaset Road, West Chester, PA
19382.

Raymond Armstrong, Assistant Public Defender,
Office of Defense Services, Wilmington, Delaware, counsel for Defendant.

O’CONNOR, Commissioner
This 12th day of September, 2025, upon consideration of Defendant’s pro se

Motion for Postconviction Relief, Defendant’s First and Second Amended pro se

Motions for Postconviction Relief, defense counsel’s Affidavit, Defendant’s second

Motion for Appointment of Postconviction Counsel, and the record in this matter,

the following is my Report and Recommendation.

On September 27, 2024, Defendant Wilson Velez (“Defendant”) filed a pro

se Motion for Postconviction Relief after being sentenced in two Superior Court

criminal cases.1 Defendant’s first case resulted from a shooting which he committed

on October 19, 2022 at the Overtime Bar and Grill (“Overtime Bar”) in Wilmington,

Delaware. Video surveillance from the Overtime Bar revealed Defendant removed

“a handgun from inside his black zipper jacket and [held] it with his right hand.” 2

Just five seconds later, Defendant was observed on video surveillance firing at least

two rounds at the victim, Andrew Brainard (“Brainard”).3 Defendant then fired a

second shot in the direction of Brainard and a second victim, Marissa Stewart

(“Stewart”).4 Defendant was observed on surveillance video chasing Stewart and

Brainard outside of the bar, firing at least two more rounds in their direction.5

1
State v. Wilson Velez, Case No. 2212006162; State v. Wilson Velez, Case No. 2303008901.
2
State v. Wilson Velez, Case No. 2212006162, Docket Item (“D.I.”) 1, Adult Complaint and
Warrant, Ex. B, ¶ 6.
3
Id. Brainard was shot in the left shoulder. Id.
4
Id.
5
Id. at ¶ ¶ 6-7.
1
Defendant then fled the scene in a white Acura MDX.6 After investigating the

shooting, the Delaware State Police obtained an arrest warrant for Defendant for

Attempted Murder First Degree, Reckless Endangering First Degree, two counts of

Possession of a Firearm During the Commission of a Felony, Possession of a Firearm

by a Person Prohibited, and Carrying a Concealed Deadly Weapon.7

While in custody pending the above-referenced charges, Defendant accrued a

second set of violent felony charges. On March 14, 2023, Defendant was

incarcerated at the Howard R. Young Correctional Institution in Wilmington,

Delaware when he violently assaulted a correctional officer (“officer”).8 More

particularly, Defendant asked an officer to unlock the door to his cell.9 Because the

officer had opened Defendant’s door several times that day, he informed Defendant

he had to wait until the officer arrived back at the control module so he could open

the door.10 Defendant, offended that the officer did not immediately honor his

demand to open his prison cell, engaged in a verbal altercation with the officer and

struck him with a closed fist to the face.11 As the officer retreated, Defendant

continued to punch the officer, eventually placing the officer in a chokehold.12

6
Id. at ¶ 7.
7
Id.
8
State v. Wilson Velez, Case No. 2303008901, D.I. 1, Adult Complaint and Warrant, Ex. B.
9
Id.
10
Id.
11
Id.
12
Id.
2
Responding officers attempted to break up the incident, but Defendant decided to

resist and fight the other officers responding to the scene.13 After being sprayed with

“OC spray,” Defendant was restrained and removed from the area.14 Defendant was

ultimately indicted for the felony offenses of Assault in a Detention Facility and

Strangulation.15

On October 2, 2023, Defendant pled guilty to Assault First Degree (a lesser

included offense of Attempted Murder First Degree); Reckless Endangering First

Degree; Possession of a Deadly Weapon (Firearm) by a Person Prohibited; and

Assault in a Detention Facility. A presentence investigation was ordered, and on

January 12, 2024, this Court sentenced Defendant to an aggregate sentence of fifty-

three years at Level V, suspended after serving sixteen years Level V, followed by

probation supervision.16 Defendant did not appeal the conviction or sentence.

On September 27, 2024, Defendant filed a pro se Motion for Postconviction

Relief (“Motion”).17 In the Motion, Defendant raised several claims: (1) trial

counsel provided ineffective representation by “lying to defendant about the terms

of the plea agreement making Defendant believe he was pleading guilty in return for

13
Id.
14
Id.
15
State v. Wilson Velez, Case No. 2303008901, D.I. 3, Indictment. Unless otherwise noted, docket
item citations will reference the docket in Case No. 2212006162.
16
D.I. 13, Sentence Order.
17
D.I. 15. Motion for Postconviction Relief. On July 3, 2025, Defendant filed an Amended
Motion for Postconviction Relief (D.I. 26).
3
a 9 year sentence;”18 (2) the imposed sentence “clearly fell outside of the agreement

of the guilty plea;”19 and (3) the sentencing judge “abused his discretion by accepting

the terms and agreement of [Defendant’s] guilty plea and sentencing him outside of

those terms and agreements.”20

On December 23, 2024, Defendant filed an Amended pro se Motion for

Postconviction Relief, duplicating the claims he raised in the initial postconviction

filing,21 but adding a claim that counsel was ineffective for failing to file a direct

appeal of the conviction and sentence.22

On February 4, 2025, Defendant filed a second, repetitive Motion for

Appointment of Postconviction Counsel.23

On July 3, 2025, Defendant filed a second Amended pro se Motion for

Postconviction Relief24 and a third Motion for Appointment of Postconviction

Counsel.25 In this amended postconviction motion, he asserts two additional

ineffective assistance of counsel claims. First, he argues he came upon newly

discovered information that “counsel withheld the search warrants from him,” and

18
Id., p. 3.
19
Id.
20
Id.
21
D.I. 26.
22
Id., p. 4. Defendant also raised this claim in the Second Amended Motion for Postconviction
Relief. See D.I. 33, p. 3.
23
D.I. 30.
24
D.I. 33.
25
D.I. 34.
4
second, he claims “counsel also withheld the arrest warrant in this case but advised

Defendant that his arrest was based on the identification made by his parole

officer.”26 Defendant contends counsel should have filed a motion to suppress

identification of him as the shooter at the Overtime Bar by the Pennsylvania parole

officer.27 Defendant also appears to have withdrawn the claim that the Judge who

sentenced him abused his discretion.28

DISCUSSION

I. MOTION FOR POSTCONVICTION RELIEF.

Superior Court Criminal Rule 61 provides an individual with a limited

opportunity to seek postconviction relief.29 The purpose of postconviction relief is

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

to relitigate their convictions.”30 Before considering the merits of any

postconviction relief motion, this Court must first apply Rule 61’s procedural bars.

A motion for postconviction relief can be procedurally barred as untimely filed,

repetitive, formerly adjudicated, or procedurally defaulted.31 The bars to relief also

do not apply to claims which are raised after a trial resulting in a conviction that (a)

26
D.I. 33, ¶ IV.
27
Id.
28
D.I. 33, p. 5. (“As to Ground Three: Abuse of Discretion, [t]his [g]round is dropped in this
[a]mendment.”)
29
State v. Washington, 2021 WL 5232259, at *4 (Del. Super. Nov. 9, 2021), aff’d, Washington v.
State, 275 A.3d 1258 (Del. 2022).
30
Ploof v. State, 75 A.3d 811, 820 (Del. 2013).
31
Washington, 2021 WL 5232259, at *4.
5
this Court lacked jurisdiction, or (b) that is pled with particularity that new evidence

exists that creates a strong inference of actual innocence.32

a. Procedural Bars

First, pursuant to Rule 61(i)(1), a motion for postconviction relief may not be

filed more than one year after the judgment of conviction is final.33 Here, the

Defendant was sentenced on January 12, 2024, and filed a pro se Motion for

Postconviction Relief on September 27, 2024. Because Defendant did not appeal

his conviction or sentence, his conviction became final 30 days after this Court

imposed sentence – February 11, 2024.34 Defendant’s Motion was timely filed.

Second, Rule 61(i)(2) prohibits the filing of repetitive motions for

postconviction relief. As this is Defendant’s first postconviction motion, this

procedural bar does not apply.

Third, Rule 61(i)(3) prohibits the filing of “any ground for relief not asserted

in the proceedings leading to the judgment of conviction . . . unless the movant shows

(A) cause for relief from the procedural default, or (B) prejudice from a violation of

the movant’s rights.”35 Pursuant to Rule 61(i)(3), Defendant’s second and third

claims (that he was subject to an “illegal sentence” and the sentencing judge abused

32
Super. Ct. Crim. R. 61(d)(2).
33
Super. Ct. Crim. R. 61(i)(1).
34
Super. Ct. Crim. R. 61(m)(1).
35
Super. Ct. Crim. R. 61(i)(3).
6
his discretion in imposing sentence) are procedurally defaulted because Defendant

did not assert them in the proceedings leading to the judgment of conviction, and he

has not demonstrated cause for relief from the procedural default nor prejudice from

an alleged violation of his rights. The above-referenced claims are procedurally

defaulted.

Rule 61(i)(4) addresses formerly adjudicated claims – if a claim was formerly

adjudicated, it is procedurally barred from being considering in a postconviction

motion. As Defendant’s claims were not previously raised in this prosecution, this

procedural bar is inapplicable.

Finally, Rule 61(i)(5) allows a Defendant to avoid the application of the

aforementioned procedural bars where a defendant claims this Court lacked

jurisdiction, or to a claim that satisfies the pleading requirements of Rule 61(d)(2)(i)

or (ii).36 Neither situation applies here.

b. Consideration of the Merit(s) of Defendant’s claims.

Defendant asserts, among other things, that trial counsel provided ineffective

representation. 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

36
Super. Ct. Crim. R. 61(i)(5).
7
different.”37 “The standard for judging counsel's representation is a most deferential

one,”38 and there is a strong presumption that counsel’s legal representation was

competent and falls within the “wide range” of reasonable professional assistance.39

The question for this Court is whether an attorney's representation amounted

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

from best practices or most common custom.40 As such, mere allegations of

ineffective assistance are insufficient. A defendant must make concrete allegations

of ineffective assistance, and substantiate them, or risk summary dismissal.41

Deference is given to defense counsel’s judgment to promote stability in the

process.42

To overcome the strong presumption that trial counsel provided competent

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

considering all the circumstances” and that the alleged unreasonable performance

prejudiced the defense.43 The essential question is whether counsel made mistakes

37
Strickland v. Washington, 466 U.S. 668, 694 (1984).
38
Premo v. Moore, 562 U.S. 115, 122 (2011).
39
Id. at 122-23; see also Flamer v. State, 585 A.2d 736, 753-44 (Del. 1990) (citations omitted).
40
Id. (citing Strickland, 466 U.S. at 690).
41
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
42
State v. Fithian, 2016 WL 3131442 at * 3 (Del. Super. May 25, 2016) (citing Premo, 562 U.S.
at 120-122).
43
Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 688).
8
so crucial that they were not functioning at the level guaranteed by the Sixth

Amendment, thereby depriving defendant of a fair trial.44

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

a showing of theoretical possibility that the outcome was affected.”46 “It is not

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

proceeding.’”47 Defendant must show a reasonable probability of a different result

(i.e., acquittal) but for trial counsel’s alleged errors.48 Applying these principles,

each of Defendant’s claims will be addressed below.

1. Counsel lied to Defendant about the plea agreement.

Defendant contends trial counsel lied to him “about the terms of the plea

agreement, making Defendant believe he was pleading guilty in return for a nine-

year sentence.”49 Neither the record nor the Affidavit of counsel support

Defendant’s claim.

44
Id.
45
Strickland, 466 U.S. at 697.
46
Frey v. Fulcomer, 974 F.2d 348, 358 (3rd Cir. 1992).
47
Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 693).
48
Strickland, 466 U.S. at 695.
49
D.I. 10, p. 3.
9
First, prior to entering the guilty plea, Defendant completed and signed the

Truth-In-Sentencing Guilty Plea Form (“TIS Form”).50 On that form, Defendant

acknowledged he freely and voluntarily decided to plead guilty to the charges listed

in the written plea agreement.51 He also acknowledged the minimum Level V

sentence which this Court could impose was nine years, up to a maximum of fifty-

three years.52 Defendant affirmed he was not promised what the Court’s sentence

would be.53 Finally, Defendant agreed that all answers provided on the TIS form

were truthful.54

Second, Defendant executed the Plea Agreement with the assistance of

counsel before entering the plea. The Plea Agreement reflects that the State was

requesting a presentence investigation, and the State agreed to “cap its [sentence]

recommendation of unsuspended Level V time at 15 years.”55 This language directly

50
D.I. 12, p. 2.
51
Id.
52
Id.
53
Id.
54
D.I. 6.
55
Id. Also see D.I. 32, 3:3-13 (“Based on those guilty pleas [Defendant] faces a minimum
mandatory of nine years in prison and as part of the agreement the State capped its recommendation
of unsuspended Level V time 15 years. Your honor, considering the facts of this case after
reviewing the pre-sentence investigation [and] considering the aggravating factors this is not [a]
minimum mandatory case, and the State submits that the cap of 15 years at Level V is the
appropriate sentence in this case.”) And, during the plea colloquy, the State specifically informed
the Court that it would cap its sentencing recommendation at 15 years imprisonment. D.I. 23: 3 –
10-20.
10
contradicts Defendant’s claim that counsel negotiated a nine-year sentence with the

State and told him he would receive a nine-year sentence.56

Finally, the transcript of Defendant’s guilty plea reflects Defendant

knowingly and voluntarily pled guilty to Assault First Degree; Reckless

Endangering First Degree; Possession of a Firearm by a Person Prohibited; and

Assault in a Detention Facility.57 As to each offense, Defendant admitted he was

pleading guilty because he in fact committed each offense.58 Defendant also

understood the aggregate sentence he faced was fifty-three years and was

specifically acknowledged the sentencing judge would not be bound by any

agreement of the parties as to the sentence which would be imposed.59 Defendant

acknowledged that no one promised him anything to enter into the plea agreement,

and he was satisfied with counsel’s representation.60 Based on Defendant’s

56
Id., 10:1-8. Trial counsel did argue that the Court impose the minimum mandatory eight year
sentence, but this Court imposed a fifteen years Level V sentence, based on a finding of
“aggravating factors, the need for correctional treatment, undue depreciation both of the shooting
and the assault in a detention facility, . . . and the custody status at the time of the offense --
[Defendant] was on probation and parole in Pennsylvania.”
57
D.I. 23, 8:15 – 11:20.
58
Id. Additionally, attached to counsel’s Affidavit was a letter from Defendant where Defendant
asked counsel to get him a plea to Assault First Degree, Reckless Endangering First Degree, and
PDWBPP for the first set of charges, and an Assault charge for the prison incident. D.I. 24, Ex.
A.
59
D.I. 23, 6:12-23.
60
Id., 5:23 – 6:2; 8:8 – 11. A defendant’s statements during a plea colloquy are presumed to be
truthful. State v. Smith, 2024 WL 1577183, at *6 (Del. Super. Apr. 11, 2024), citing Somerville v.
State, 703 A.2d 629, 632 (Del. 1997). And, a Defendant’s representations to this Court during the
plea colloquy create a “formidable barrier in any subsequent collateral proceedings.” Id., quoting
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
11
representations on the TIS Form and the plea agreement, as well as the transcripts of

the plea and sentencing hearings, Defendant’s claim is meritless.

2. Counsel was ineffective for failing to object to the State’s
deviation from the plea agreement.

To the extent Defendant argues counsel failed to object to the State’s deviation

from the plea agreement, the record does not support this claim.61 There is no record

evidence supporting Defendant’s assertion that counsel promised him he would

receive an eight-year prison sentence, and no record evidence the State deviated

from its fifteen year sentence recommendation. Defendant’s claim is unsupported

by the record and meritless.

3. Counsel was ineffective for withholding search and arrest
warrants from the Defendant.

In Defendant’s second amended pro se motion for postconviction relief, he

raises two additional ineffective assistance of counsel claims.62 First, he argues

“counsel withheld the search warrants from [him] . . . but advised [him] that there

was nothing defective in the warrants requiring pretrial relief.”63 He asserts the

search warrant(s) lacked probable cause to search his Pennsylvania residence and

any items seized from the execution of the warrant should be suppressed. Defendant

61
Defendant raised this additional argument in the first Amended Motion for Postconviction
Relief. See D.I. 26.
62
D.I. 34.
63
Id., ¶ IV.
12
does not claim he reviewed the Pennsylvania search warrants, if any, or explained

how a review the search warrants would have changed the outcome here.

Defendant has also failed to establish he was prejudiced by counsel’s alleged

misconduct. Defendant was observed and recorded on surveillance video inside and

outside the Overtime Bar firing a handgun while being a Pennsylvania parolee and

convicted felon, striking an unarmed victim inside the bar.64 That compelling video-

recorded evidence established Defendant’s identity with and involvement in the

shooting, and is independent of any evidence recovered from an alleged search of

his residence. And, Defendant not only knowingly and voluntarily pled guilty to the

shooting, he penned a letter to counsel prior to the entry of the plea effectively

conceding his guilt while attempting to negotiate what he believed to be an

acceptable prison sentence.65 Counsel negotiated the plea Defendant indicated to

the charges he would accept, albeit not with the sentence Defendant was amenable

to serve.66

Defendant’s second claim is equally unavailing. He contends counsel

“withheld the arrest warrant in [the shooting at the Overtime Bar] case.”67 Defendant

argues counsel informed him the relative quality of the surveillance video recording

64
The execution of any search warrant in Pennsylvania would have no effect on Defendant’s plea
to Assault in a Detention Facility (Case No. 2303008901).
65
D.I. 24, Ex. A.
66
Id.
67
Id. at ¶ IV.
13
was acceptable and that a plea was “the best option for him.” Defendant now

contends there was some defect in his identification, as his Pennsylvania parole

officer was allegedly shown still images and/or the video footage of the incident

which confirmed his participation in that crime. Defendant argues the “still pictures

used for facial recognition” did not include his neck tattoo, and “through discovery

of his active PA case it has been learned that his P.O. identified him because of his

neck tattoo,” but the “still pictures show no such features of the suspect.” While

Defendant’s recitation is convoluted, he argues the Delaware State Police’s decision

to show his Pennsylvania parole officer these images was a “violation of the

Constitution’s First Amendment Due Process Clause” as it was “impermissibly

suggestive to contact a parole agent, telling her a person on her caseload is a suspect

in a shooting, requesting all of his personal information then later calling her again

and showing her a video and pictures of a shooting and suspect they already told her

was the Defendant.”68 Defendant argues counsel was ineffective for failing to seek

suppression of this “suggestive out-of-court identification.”

To the extent Defendant argues law enforcement’s conduct violated his First

Amendment rights, it did not. To the extent Defendant contends law enforcement

violated his Fourth Amendment Due Process rights by showing a video and/or still

images of a crime to his Pennsylvania parole officer asking whether they could

68
Id.
14
confirm his identify as the shooter from the bar, he arguably raises a claim that the

identification procedure was suggestive. But, as discussed below, that claim is

meritless.

An identification procedure may be suggestive when police conduct directs a

witness’s attention to a particular individual as a suspect. Challenges to suggestive

identification procedures commonly arise when the “suggestive identification

involves a suggestion by police impressed upon a witness or victim to [specifically]

identify a suspect.”69

As the Delaware Supreme Court held in Ruffin v. State,
An identification procedure will not pass constitutional muster where it
is impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification. To violate due process, the
unnecessarily suggestive identification procedure must also carry with
it the increased danger of an irreparable misidentification. Whether an
out of court identification is impermissibly suggestive is a fact intensive
inquiry. An identification procedure is suggestive when the police
conduct it in such a way that the witness’ attention is directed to a
particular individual as the suspect upon whom the police have
focused.70
Even if an identification procedure is suggestive, however, evidence of the

identification will not be excluded from trial so long as the identification is reliable.

To make this determination, Courts are directed to consider the totality of the

69
Id. at 277.
70
Ruffin v. State, 131 A.3d 295, 306 (Del. 2015) (internal citations omitted).
15
circumstances whether (a) the procedure used was unnecessarily suggestive, and (b)

whether there was a substantial likelihood of misidentification.71

Here, Defendant’s contention is not that a witness or victim to the shooting at

the Overtime Bar identified him through a suggestive process. Defendant claims the

Delaware State Police showed still images of him taken from the Overtime Bar’s

surveillance video to his Pennsylvania parole officer, who was actively supervising

him on a conditional release sentence from Pennsylvania. Courts have held that

when a witness, such as a parole officer, is sufficiently familiar with a suspect, any

identification is considered "confirmatory" rather than "selective," minimizing due

process concerns.72

Defendant’s argument is somewhat consistent with the claim raised in Weber

v. State,73 where a police officer identified a defendant after reviewing gas station

surveillance video footage the day after an attempted robbery at the gas station. 74

Here, and in Weber, the identification procedure was conducted by a law

enforcement officer who was familiar with the defendant and was not subject to

71
Id.
72
See People v. Gambale, 158 A.D. 3d 1051, 1052-53 (NY App. 4th Div. 2018) ( a parole officer's
identification of a defendant from surveillance video was merely confirmatory because the parole
officer was familiar with him leaving little or no risk of misidentification.); Greene v. State, 229
A.3d 183, 192-93 (MD Ct. App. June 9, 2020) (The due process analysis that governs eyewitness
identification procedures governs a process where the police seek to ascertain a suspect’s identity.
The police-initiated identification procedure utilized here was properly described not as a
“selective identification” but rather, as a “confirmatory identification.”)
73
Weber v. State, 38 A.3d 271 (Del. 2012).
74
Id. at 273.
16
pressure or necessity to identify anyone. The identification of Defendant by his

parole officer was reliable, and the “distorting risk of suggestion” was negligible.75

Defendant has failed to demonstrate the Pennsylvania parole officer’s

identification was either impermissibly suggestive or unreliable, nor has he

established the identification procedure carried with it an increased danger of

irreparable misidentification. Defendant has failed to demonstrate counsel was

ineffective for failing to file a motion to suppress his identification by the

Pennsylvania parole officer.

4. This Court imposed an illegal sentence.

Defendant next claims his sentence was illegal because it “fell outside of the

Agreement of the Guilty Plea.” Not so. Under Delaware law, a sentence is “illegal”

if it: exceeds statutorily-imposed limits, violates the Double Jeopardy Clause, is

ambiguous with respect to the time and manner in which it is to be served, is

internally contradictory, omits a term required to be imposed by statute; is uncertain

as to the substance of the sentence or is a sentence which the judgment of conviction

did not authorize.76 None of these circumstances apply here. As the record reflects,

the sixteen-year sentence imposed by this Court was well within the statutory limits

75
Id. Stated differently, the Pennsylvania parole officer’s identification was confirmatory rather
than selective, and Defendant failed to demonstrate a violation of due process.
76
Tatem v. State, 787 A.2d 80, 81 (Del. 2001) (Identifying factors constituting an “illegal
sentence” considered in the context of a motion for postconviction relief).
17
for the offenses to which he pled guilty, and as the Defendant acknowledged prior

to the entry of the plea, the Court was not bound to sentence him by any agreement

between the State and Defendant. Defendant’s claim is meritless and factually

unsupported by the record.77

5. Sentencing Judge abused his discretion.

Defendant alleged in the first78 and First Amended79 pro se Motions for

Postconviction Relief that the sentencing judge abused his discretion by “accepting

the terms and Agreement of [Defendant’s] guilty plea and sentencing him outside of

those terms and agreements.”80 While this Court imposed a sixteen-year Level V

sentence, exceeding the State’s “cap” by one year, it was not bound by the sentencing

recommendation by the State or Defendant’s counsel, and Defendant expressly

acknowledged the Court could impose the maximum Level V sentence of fifty-three

years if it saw fit to do so.81

77
To the extent Defendant suggests the prosecutor attempted to mislead the Court and seek a
sentence above the 15-year cap as agreed to in the plea agreement, the sentencing transcript refutes
Defendant’s claim. The prosecutor was steadfast that the State believed a 15-year sentence was
appropriate. (“Your honor, considering the facts of this case after reviewing the presentence
investigation and considering the aggravating factors this is not a minimum mandatory case, and
the State submits that the cap of 15 years at Level V is the appropriate sentence in this case.” (D.I.
23, 3:8-13); “The State submits, based on all of those aggravating factors and the facts of these
cases, that 15 years at Level V time is appropriate.” (Id., 5:17-19)).
78
D.I. 15, p. 3.
79
D.I. 26, p. 3-4.
80
D.I. 15, p. 3. As noted above in footnote 28, Defendant attempted to withdraw this claim in the
second amended motion for postconviction relief. See D.I. 33, p. 5.
81
D.I. 23, 6:12 – 23.
18
The sentencing judge imposed a sentence within the sentencing guidelines for

the charges for which Defendant pled guilty, and the judge identified at least three

aggravating factors supporting the decision to deviate from the sentence agreed to

by the State and Defendant.82 Given the existence of aggravating factors, deviating

from the State’s “cap” by one year is not evidence of an abuse of discretion.

Defendant’s claim is meritless.

6. Trial counsel was ineffective for failing to appeal Defendant’s
conviction and sentence.

Finally, in his second Amended Motion for Postconviction Relief, Defendant

argues he asked counsel to appeal his conviction and sentence.83 Counsel denies

Defendant’s claim, indicating Defendant neither verbally requested nor requested in

writing he file an appeal.84 And, if he had done so, counsel indicated he would have

filed a “non-meritorious appeal.”85

The record does not support Defendant’s claim that counsel disregarded a

request to file a direct appeal, and even if he did ask for an appeal, Defendant did

not substantiate his claim by identifying any meritorious appellate issue.86 As a

result, Defendant cannot demonstrate prejudice.

82
D.I. 32, 10:1 – 8.
83
D.I. 26, p. 3.
84
D.I. 24, p. 2.
85
Id., p. 3.
86
A defendant must make concrete allegations of ineffective assistance, and substantiate them, or
risk summary dismissal. See Younger, 580 A.2d at 556.
19
7. By entering the plea, Defendant waived any alleged errors or
defects committed by counsel.

The Delaware Supreme Court has “long held that a voluntary guilty plea

constitutes a waiver of any alleged errors or defects occurring prior to the entry of

[a] plea.”87 In support of this legal standard, at the conclusion of Defendant’s plea

colloquy, after already confirming that Defendant was both satisfied with counsel88

and that he was pleading guilty because he did, in fact, commit the four offenses to

which he entered a plea of guilty,89 this Court concluded:

The Court finds the plea knowingly and voluntarily and intelligently
made with an understanding of the nature of the charges and
consequences. The Court will accept your guilty plea and enter
adjudications of guilty as to the charges of Assault First [Degree],
Reckless Endangering First Degree, Possession of a Firearm by a
Person Prohibited, and Assault in a Detention Facility.90

By entering a knowing, voluntary and intelligent plea, Defendant waived any alleged

errors or defects of counsel prior to the entry of the plea, including all claims raised

supra.

87
See Johnson v. State, 2008 WL 4830853, at *1 (Del. Nov. 7, 2008), citing Miller v. State, 840
A.2d 1229, 1232 (Del. 2003); also see Alexander v. State, 2008 WL 4809624 (Del. Nov. 5, 2008);
State v Charriez, 2009 WL 806585, at *2 (Del Super Feb. 10, 2009) (“At least twice during the
plea colloquy, the court warned Defendant that it would be virtually impossible to back out of the
plea once it was accepted. Further, the court specifically asked if Defendant was satisfied with his
attorney, and he was. If Defendant felt his attorney failed to properly represent him, he should have
presented that issue in open court before he pleaded guilty. Because Defendant's ineffective
assistance of counsel claims address matters before the plea, those claims were waived.” State v
Charriez, 2009 WL 806585, at *2 (Del. Super. Feb. 10, 2009)).
88
D.I. 23, 8:8-11.
89
Id., 8:15 – 11:11.
90
D.I. 23, 11:12-20.
20
II. MOTION FOR APPOINTMENT OF POSTCONVICTION COUNSEL.

On February 4, 2025, Defendant requested the appointment of postconviction

counsel.91 In the motion, Defendant alleged he was indigent, is not an attorney, is

incarcerated in Pennsylvania, has no access to Delaware law, and appointed counsel

would be better equipped to litigate postconviction claims on his behalf.92 This

Court denied Defendant’s motion on May 12, 2025.93

On July 3, 2025, Defendant renewed his request for appointment of

postconviction counsel.94 He generally repeated the same reasons to request

appointment of postconviction counsel that were previously submitted in the

February 4, 2025 motion.

When considering a motion for the appointment of postconviction counsel in

the context of a guilty plea, Rule 61(e)(3) provides:

(3) First postconviction motions in guilty plea cases. The judge may
appoint counsel for an indigent movant's first timely postconviction
motion and request for appointment of counsel if the motion seeks to
set aside a judgment of conviction that resulted from a plea of guilty or
nolo contendere only if the judge determines that: (i) the conviction has
been affirmed by final order upon direct appellate review or direct
appellate review is unavailable; (ii) the motion sets forth a substantial
claim that the movant received ineffective assistance of counsel in
relation to the plea of guilty or nolo contendere; (iii) granting the
motion would result in vacatur of the judgment of conviction for which

91
D.I. 30.
92
Id.
93
D.I. 31.
94
D.I. 34.
21
the movant is in custody; and (iv) specific exceptional circumstances
warrant the appointment of counsel.

The appointment of postconviction counsel in the context of a guilty plea is

discretionary, and to grant the motion, this Court must conclude that all four factors

in Superior Court Criminal Rule 61(e)(3) are satisfied. Here they are not.

Defendant has failed to set forth a substantial claim that he received

ineffective assistance of counsel. During the plea colloquy, Defendant expressly

stated he was satisfied with counsel’s representation. His ineffective assistance of

counsel claims noted supra are not supported by the record. And, as a result of this

Court’s finding that he knowingly, voluntarily and intelligently entered the guilty

pleas, any claim related to conduct counsel failed to perform prior to the entry of the

plea and sentencing is waived by operation of Delaware law. Defendant has also

failed to establish the existence of exceptional circumstances which warrant the

appointment of postconviction counsel.

22
III. CONCLUSION
For the foregoing reasons, I recommend the claims raised in all of Defendant’s

pending pro se Motions for Postconviction Relief be SUMMARILY DISMISSED

as procedurally barred and/or substantively meritless. I also recommend

Defendant’s second Motion for the Appointment of Postconviction Counsel95 be

SUMMARILY DISMISSED.

IT IS SO RECOMMENDED.

/s/ Martin B. O’Connor
Commissioner Martin B. O’Connor
Cc: Prothonotary
William Leonard, Deputy Attorney General
Wilson Velez

95
D.I. 34.
23