State v. McCrary

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, :
:
: ID. No. 1906013738
v. :
:
TIMOTHY MCCRARY, :
:
Defendant. :
:
Submitted: March 30, 2026
Decided: April 24, 2026
ORDER
On this 24th day of April 2026, having considered Defendant Timothy
McCrary’s appeal of the Commissioner’s Report and Recommendation denying his
motion for postconviction relief (hereinafter, the “Report”), Mr. McCrary’s written
objection to the Report, and the State’s response to that objection, it appears that:
1. Defendant Timothy McCrary was convicted of four counts of Unlawful
Sexual Contact First Degree after a bench trial. The Court sentenced him to twenty
years’ incarceration—comprised of four consecutive mandatory five-year terms—
followed by extended probation. He contends in his motion that his trial counsel
performed deficiently because he did not advocate merging the sentences for two of
the counts. He seeks reduction of the length of his incarceration by a net of five
years.
2. As background, Mr. McCrary appealed his convictions to the Delaware
Supreme Court. There, he argued that (1) the Superior Court violated the
Confrontation Clause when it considered two prior, out-of-court statements admitted
under 13 Del. C. § 3513, (2) the Superior Court abused its discretion when it
admitted another victim’s prior, out-of-court statement under 11 Del. C. § 3507
without sufficient foundation, and (3) the cumulative prejudice of those errors
deprived him of a fair trial. The Delaware Supreme Court rejected those arguments
and affirmed Mr. McCrary’s convictions.1
3. Mr. McCrary next filed pro se motions for postconviction relief and
appointment of counsel.2 The Court granted the latter.3 Postconviction counsel then
filed a motion to withdraw after representing that Mr. McCrary had no non-frivolous
grounds for postconviction relief.4 Presently, Mr. McCrary proceeds pro se after
filing an amended Rule 61 motion.5
4. After considering the parties’ positions regarding the amended motion,
the Commissioner issued her findings and recommendations in the Report.6 From
the outset, how the Report applied Superior Court Criminal Rule 61(i)(4)’s
procedural bar is unclear. At times, the Report seems to indicate that his claims are
barred in their entirety.7 Elsewhere, the Report correctly recognizes that at least one
of his contentions implicate an ineffective assistance of counsel claim, which is not
procedurally barred.8 As to the former, Mr. McCrary’s redundant arguments
regarding the admissibility of evidence were raised and rejected on direct appeal.
The Report correctly recognizes that they are procedurally barred because they meet
no recognized exception. As to the latter reference, a blanket procedural bar imposed
against all claims would be inappropriate because one of his contentions—the one

1
McCrary v. State, 290 A.3d 442, 445 (Del. 2023).
2
D.I.s 88, 89.
3
D.I. 90.
4
D.I. 111.
5
D.I. 116.
6
D.I. 136.
7
Id. at 12, 17.
8
Id. at 14.
he raises on appeal—alleges ineffective assistance of counsel.9 As to the substance
of his ineffective assistance claim, the Report found that Mr. McCrary’s ineffective
assistance claim failed.10
5. The Court’s scope of review when considering Mr. McCrary’s objection
requires the review de novo of only the objected-to portions of the Report.11
Accordingly, the Court considers Mr. McCrary’s contention that trial counsel should
have advocated for merger of two of his USC convictions—counts 3 and 4—at
sentencing. He argues that the multiplicity doctrine required merger because the
two alleged offenses involved the same conduct perpetrated upon the same victim.
6. The Court’s de novo review of this objection requires application of the
substantive standard for ineffective assistance of counsel claims. To prevail, he
must show that (1) his trial counsel’s performance was objectively unreasonable, and
(2) he suffered prejudice because of trial counsel’s unreasonable performance.12
Under the first prong, courts apply a strong presumption that counsel’s performance
was reasonable and avoid applying hindsight bias because of a poor result.13 Under
the second prong, the movant must demonstrate actual prejudice based on the
attorney’s mistake. To that end, he or she must demonstrate a reasonable probability
that the result at trial or sentencing would have been different but for counsel’s
unprofessional error.14

9
See Green v. State, 238 A.3d 160, 175 (Del. 2020) (“Simply put, ineffective-assistance claims
are not subject to Rule 61(i)(3)’s bar because they cannot be asserted in the proceedings leading
to the judgment of conviction under the Superior Court’s rules and this Court’s precedent.”).
10
D.I. 136 at 17.
11
Del. Super. Ct. Crim. R. 62(a)(5)(iv).
12
Strickland v. Washington, 466 U.S. 668, 687 (1985); see also Albury v. State, 551 A.2d 53, 58
(Del. 1988) (wherein the Delaware Supreme Court confirmed the application of Strickland under
Delaware law).
13
Strickland, 466 U.S. at 687.
14
Id. at 694.
7. In this case, Mr. McCrary demonstrates neither unreasonable
performance nor prejudice. Simply put, there is no unreasonable performance or
prejudice when an attorney declines to advocate a position that is incorrect as a
matter of law. To this end, the multiplicity doctrine applies when both the victims
and the harms caused by the two crimes are the same.15 The Court found, after a
trial, that Mr. McCrary committed two separate acts that caused two separate harms.
Specifically, Mr. McCrary separately and distinctly touched two separate areas of
the seven-year-old victim’s body—her buttocks and then later her vagina. To this
end, whether his conduct constituted one continuous act or multiple separate acts
was a question of fact.16 As the Delaware Supreme Court recognized in the context
of sex offenses, “[a] person who commits multiple sexual assaults upon the same
victim may be held responsible for, and punished for, each separate and distinct act,”
even if each separate act is charged under the same statute.17 Trial counsel neither
acted unreasonably by declining to advocate for the unavailable nor prejudiced Mr.
McCrary because any such request would have been unsuccessful.
8. The Delaware Supreme Court examined similar circumstances on
appeal in Black v. State.18 There, the Court explained the importance of considering
whether the defendant committed separate acts and separate harms. The defendant
argued that his conviction of three counts of Unlawful Sexual Contact violated the
Double Jeopardy Clause where the victim testified that the defendant touched her
vagina and buttocks with his finger, and then touched her buttocks with his penis.19
In upholding the jury’s verdict, the Court held that the evidence supported the jury’s

15
Thompson v. State, 129 A.3d 883, 2015 WL 8983134, at *2–3 (Del. Dec. 14, 2015) (TABLE).
16
Wyant v. State, 519 A.2d 649, 661 (Del. 1986).
17
Feddiman v. State, 558 A.2d 278, 288–89 (Del.1989) (emphasis added).
18
Black v. State, 970 A.2d 256, 2009 WL 804631, at *2 (Del. March 27, 2009) (TABLE).
19
Id. at *2; see also Feddiman, 558 A.2d at 288 (“The division of a single offense into multiple
counts of an indictment violates the double jeopardy provisions of the Constitutions of the State
of Delaware and of the United States.”).
factual finding that Black’s actions constituted three separate, distinct acts.20
Accordingly, the defendant’s commission of the same acts within a short time frame
did not prohibit his convictions and sentencing for three distinct charges.21 In Mr.
McCrary’s case, he committed two acts that caused two separate harms which made
merger for purposes of sentencing inappropriate. It follows that his trial counsel was
not ineffective for declining to raise an argument that had no merit.
WHEREFORE, the Court accepts the Commissioner’s Report and
Recommendation, in part, and rejects it in part. As a result, Defendant Timothy
McCrary’s motion for postconviction relief is DENIED.

IT IS SO ORDERED.

/s/ Jeffrey J Clark
Resident Judge

oc: Prothonotary
cc: The Honorable Andrea M. Freud
Michael B. Cooksey, DAG
Trial Counsel
Timothy K. McCrary, JTVCC

20
Black, 2009 WL 804631, at *2.
21
Id.