State v. White

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) ID. No. 1808010617
)
JASON WHITE, )
)
Defendant. )

MEMORANDUM OPINION

Date Submitted: November 16, 2023
Date Decided: February 23, 2024

Upon Consideration of Defendant’s Motion for Postconviction Relief,
DENIED

Upon Consideration of Rule 61 Counsel’s Motion to Withdraw,
GRANTED

Erika R. Flaschner, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attorney for the State.

Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware.
Postconviction Counsel for Defendant Jason White.

JURDEN, P.J.
 I. INTRODUCTION

A jury found Jason White (“White”) guilty of three counts of Drug Dealing,

two counts of Aggravated Possession, and three counts of Endangering the Welfare

of a Child.1 White now moves for Postconviction Relief under Superior Court

Criminal Rule 61 (“Rule 61 Motion”), claiming that, but for his Trial Counsel’s

ineffectiveness, he would have accepted a plea offer and received a lighter sentence

than what he received following his trial.2 This Memorandum Opinion addresses

White’s Rule 61 Motion and Rule 61 Counsel’s Motion to Withdraw (“Motion to

Withdraw”).3 For the reasons set forth below, White’s Rule 61 Motion is DENIED

and Rule 61 Counsel’s Motion to Withdraw is GRANTED.

1
D.I. 30.
2
D.I. 44.
3
D.I. 61.

2
 II. BACKGROUND AND PROCEDURAL HISTORY

A. Statement of Facts

On August 16, 2018, following an investigation into the sale of crack cocaine

and heroin, police executed a search warrant at 115 Cross Avenue, New Castle,

Delaware (the “Residence”).4 Upon arriving at the Residence, officers knocked on

the front door to alert the occupants of their presence and waited for a response.5

After a few moments, the officers proceeded to break down the door.6 Almost

simultaneously, Detective Sean Raftery (“Detective Raftery”) broke through the

bathroom window located adjacent to the front door.7 After breaking the window,

Detective Raftery moved the bathroom curtains aside and observed White attempt

to enter the bathroom, make visual contact with Detective Raftery, and then flee

from the bathroom back into the Residence.8 White ignored Detective Raftery’s

commands to stop.9

Once inside the Residence, Chief Investigating Officer Detective Jared Miller

(“Detective Miller”) encountered three other adults, three children, and two dogs.10

Before commencing the search of the Residence, Detective Bruce Ashby (“Detective

4
D.I. 39 (hereinafter “Nov. 19, 2019 Trial Tr.”) at 37, 39-40.
5
Id. at 47.
6
Id. at 120.
7
Id. at 119-20.
8
Id. at 121-22.
9
Id. at 122-23.
10
Id. at 47, 78. The other adults were identified by Detective Miller as Jay White, John
Gildersleeve, and Connie White. Id. at 78.

3
Ashby”) ordered one of the adults to secure the dogs.11 While escorting the adult

with the dogs to one of the bedrooms, Detective Ashby observed White standing in

a hallway toward the back of the Residence.12 Detective Ashby watched White

appear to bend down, pick something up, and throw an object into one of the

bedrooms located in the back right of the Residence.13 White went into that same

bedroom and disappeared from Detective Ashby’s line of sight.14 Detective Ashby

ordered White to exit the bedroom.15 White waited a few seconds before complying

and surrendering.16

After securing the Residence, the officers conducted a search.17 In White’s

bedroom,18 officers found a small amount of marijuana,19 boxes of empty plastic

bags, cut straws, a smoking pipe, and three cell phones.20 In the bedroom located in

the back right of the house – the same bedroom Detective Ashby saw White enter

and throw an object into21 – officers found more than a dozen bags of heroin,

11
D.I. 37 (hereinafter “Nov. 20, 2019 Trial Tr.”) at 6. Detective Ashby was fitted with a body-
worn camera that was recording during the execution of the search warrant. Id. at 8.
12
Id. at 7.
13
Id.
14
Id.
15
Id.
16
Id.
17
Nov. 19, 2019 Trial Tr. at 41.
18
Id. at 45-46.
19
Detective Miller testified at trial that the amount of marijuana found was small enough to be
consistent with personal use. Id. at 84-85.
20
Id. at 87. A subsequent search of the cell phones revealed that only one of them, the ZTE, held
any information relevant to the instant investigation. Nov. 20, 2019 Trial Tr. at 75-76.
21
Officers labeled this bedroom the “B/C bedroom.” Id. at 7-8. They assigned a letter to each
side of the house to identify where items were discovered during the search. Nov. 19, 2019 Trial

4
oxycodone, crushed green pills,22 and crushed crystal meth on the floor.23

Subsequent lab tests revealed the presence of more than twelve grams of a heroin

and fentanyl mixture and more than five grams of crystal meth from the evidence

recovered.24 In the living room, officers found a digital scale and glass smoking

pipe.25

Once the search was completed, Detective Miller interviewed White at the

Residence.26 During this interview, White denied any knowledge of the drugs found

and stated he did not want to incriminate himself.27 Later, while still at the

Residence, White told one of the officers he wanted an ambulance to wash his

hands.28 When asked why he wanted to wash his hands, White said he “believed he

was contaminated” and did not “want it to spread.”29

White was arrested and taken to the New Castle County Police Department

(“NCCPD”) headquarters where he gave a second interview.30 During this interview

with Detective Miller, White admitted to selling heroin and methamphetamine and

Tr. at 112 (“A would be the front, and then going around the circle, B would be the left side, C
would be the back, D would be the right side.”).
22
The green pills were later identified as oxycodone pills that contained fentanyl. Nov. 19, 2019
Trial Tr. at 59-61; Nov. 20, 2019 Trial Tr. at 65.
23
Nov. 20, 2019 Trial Tr. at 57-59, 61-68.
24
See id. at 44-50, 52-57, 60-68.
25
Nov. 19, 2019 Trial Tr. at 69-70.
26
Id. at 70.
27
Id.
28
Id. at 70-71.
29
Id. at 71.
30
Id. at 71-72; Nov. 20, 2019 Trial Tr. at 83-84.

5
admitted that all the drugs found at the Residence belonged to him.31

B. Procedural History32

On August 16, 2018, White was arrested in the instant case (hereinafter the

“A Case”) and posted bail.33 While out on bail, police identified White as a

participant in a drug trafficking organization, resulting in a Rule 9 Warrant in a new

case, Case No. 1810008071 (hereinafter the “B Case”).34 White was indicted in the

A and B Cases on October 22, 2018.35

On December 17, 2018, White failed to appear for his Case Review in the A

Case and the Court issued a capias.36 On December 21, 2018, White failed to appear

for his arraignment in the B Case and the Rule 9 Warrant remained outstanding.37

In May 2019 police received a tip from a confidential source as to where

White was residing and that he was selling heroin, methamphetamine, and cocaine

31
White v. State, 258 A.3d 147, 153 (Del. 2021).
32
All references to the Appendix provided by Rule 61 Counsel in his Memorandum in Support of
Motion to Withdraw are hereinafter referred to as “A__.”
33
D.I. 1.
34
D.I. 61 (hereinafter “Mem. in Supp. of Mot. to Withdraw”) at 2-3. Delaware Superior Court
Docket ID No. 1810008071 (“D.I. _B”) at 1B.
35
D.I. 2; D.I. 2B. The indictment in the B Case charged White with: Conspiracy to Commit
Racketeering (IN18-10-1725W); Drug Dealing, 4 or more grams of heroin (IN18-10-1726W); and
Aggravated Possession, 5 or more grams of heroin (IN18-10-1727W). A38-64. White’s
indictment in the B Case was sealed until December 5, 2018, when the Court Ordered it unsealed.
D.I. 5B.
36
D.I. 5.
37
D.I. 8B.

6
out of his home.38 Following an investigation and police surveillance,39 White was

arrested on June 4, 2019,40 and then indicted in a third case, Case No. 1906002560

(hereinafter the “C Case”) following the arrest.41

On June 5, 2019, the Capias was returned in the A Case, and bail was

temporarily revoked due to the series of new charges.42 On July 1, 2019, the Court

entered a Scheduling Order in the A Case.43 White was scheduled for a Case Review

on July 8, 2019, Final Case Review on October 21, 2019, and Trial on November

19, 2019.44

On October 2, 2019, in accordance with Superior Court Rule 16, the State

provided Trial Counsel with discovery for the A Case, including the Report of

Detective Miller; advised Trial Counsel that the “defendant made statements that

were audio/video recorded”; “body-worn camera footage exists”; and noted that no

38
Mem. in Supp. of Mot. to Withdraw at 3; A29.
39
During the week of May 26, 2019, officers conducted surveillance on the home White was
reportedly staying at. A29-30. Officers were able to observe White at this residence. Id. The
officers discontinued their surveillance after a few hours “to protect the integrity of the
investigation.” A30. It was not until June 4, 2019, that officers encountered White again, but this
time in the Christiana Mall parking lot. Id. Officers proceeded to detain White. Id.
40
A29-30.
41
A65-68. White was indicted in the C Case on September 16, 2019 with: Drug Dealing, 4 or
more grams of heroin (IN19-06-1052); Aggravated Possession, 5 or more grams of heroin (IN19-
06-1053); Drug Dealing, marijuana (IN19-06-1055); Aggravated Possession, 175 or more grams
of marijuana (IN19-06-1056); Operating or Attempting to Operate a Clandestine Laboratory
(IN19-06-1054); Conspiracy Second Degree (IN19-09-1231); and Possession of Drug
Paraphernalia (IN19-09-1232). Id.; Delaware Superior Court Docket ID No. 1906002560 (“D.I.
_C”) at 3C.
42
Mem. in Supp. of Mot. to Withdraw at 2; D.I. 9.
43
D.I. 17.
44
Id.

7
plea offer was being offered at that time.45

White was re-indicted in the A Case on October 14, 2019,46 and again on

October 28, 2019.47 The October 28, 2019, indictment charged him with the

following:

• Drug Dealing, 4 or more grams of heroin (IN19-10-1257)
• Aggravated Possession, 5 or more grams of heroin (IN19-10-1258)
• Drug Dealing, methamphetamine (IN19-10-1259)
• Aggravated Possession, 25 or more grams of methamphetamine (IN19-
10-1260)
• Drug Dealing, 30 or more oxycodone pills (IN19-10-1261)
• Endangering the Welfare of a Child (IN19-10-1262)
• Endangering the Welfare of a Child (IN19-10-1263)
• Endangering the Welfare of a Child (IN19-10-1264)48

At his October 21, 2019 Final Case Review, the Court asked Trial Counsel if

the November trial date in the A Case was set to move forward.49 The State indicated

that if White was going to accept a plea before the trial date it would be for all three

of White’s cases (meaning Cases A, B, and C).50 When the Court asked if such a

global plea would occur within the month, Trial Counsel responded that he could

not be certain and added, “there has been a plea that one should think about here.

45
D.I. 18. The letter reads, “The State makes the following plea offer: None at this time.” The
letter goes on to state that if White was inclined to accept any plea offer in the instant case he
should advise the State so the parties could discuss the matter and the State could make a firm
offer. Id.
46
D.I. 19.
47
D.I. 24.
48
Id.
49
D.I. 19; D.I. 51 (hereinafter “FCR Tr.”) at 4.
50
FCR Tr. at 4.

8
It’s been communicated to my client. He’s rejected it.”51 Trial Counsel was

referring to the only plea offered in this case.52 The terms of the Global Plea were

as follows: White would plead guilty to Drug Dealing, Tier 4 (Heroin) (IN-19-10-

1257); Conspiracy to Commit Racketeering (IN-18-10-1725); and Drug Dealing,

Tier 4 (Heroin) (IN-19-06-1052), and the State would agree to cap its unsuspended

Level V recommendation at 15 years.53 This plea offer called for open sentencing,

a presentence investigation, and the Level V time to run consecutively.54 White

rejected the plea.55

C. Evidence Presented at Trial

On November 19, 2019, White went to trial in the A Case.56 The State

presented testimony from the Chief Investigating Officer, Detective Miller;57

Detective Ashby and Detective Raftery, who were at the Residence during the

execution of the search;58 a forensic analyst who provided expert testimony about

51
Id. at 4-5.
52
Across all three of White’s cases, four pleas were offered, but only one concerned the A Case
(hereinafter the “Global Plea”). A864.
53
Id.
54
Id. The minimum mandatory for this plea would have been six years.
55
Rule 61 Counsel states in his Memorandum that “there does not appear to be a record of rejection
of this plea” (Mem. in Supp. of Mot. to Withdraw at 15), but the transcript from the Final Case
Review makes clear that the Global Plea was communicated to White and he rejected it. See FCR
Tr. at 5.
56
D.I. 28.
57
See Nov. 19, 2019 Trial Tr. at 36-111; Nov. 20, 2019 Trial Tr. at 70-135; D.I. 38 (hereinafter
“Nov. 21, 2019 Trial Tr.”) at 4-16.
58
See Nov. 19, 2019 Trial Tr. at 117-128; Nov. 20, 2019 Trial Tr. at 3-30.

9
the evidence recovered;59 and Detective Alexis Schupp (“Detective Schupp”) who

provided expert testimony about narcotics trade.60 The State’s witnesses provided

testimony linking White to the drugs and the jury heard testimony that White

confessed to possessing and dealing drugs.61 The State introduced the body worn

camera footage recovered from Detective Ashby’s camera,62 and text messages from

one of the recovered phones which Detective Schupp testified were demonstrative

of drug dealing.63 The State also presented a wiretap recording which captured

White on the phone talking about the search and his attempts to dispose of the

drugs.64

On November 22, 2019, the jury found White guilty of all charges in the A

Case.65 On January 7, 2020 White accepted a plea offer in the B Case,66 and on

59
See Nov. 20, 2019 Trial Tr. at 31-70. Ms. Nicole Gerlach (“Gerlach”), a forensic scientist,
provided expert testimony and identified the substances recovered from the Residence along with
the quantity in which they were found. Id.
60
See Nov. 21, 2019 Trial Tr. at 16-82. Detective Schupp testified in his capacity as an officer in
the organized crime and vice division and testified regarding the typical patterns found in drug
dealing transactions. Id.
61
See Nov. 20, 2019 Trial Tr. at 119-21.
62
Id. at 8-9.
63
See generally, Nov. 21, 2019 Trial Tr. at 46-55.
64
See Nov. 20, 2019 Trial Tr. at 143. At sidebar, Trial Counsel objected to the admissibility of
the recording, arguing that Detective Thomas Macauley (“Detective Macauley”) had not clearly
established his familiarity with White’s voice during cross-examination. Id. at 150-52. In
response, the State informed the Court that Detective Macauley’s familiarity with White’s voice
was the result of a separate discussion involving a different investigation. Id. at 152. To avoid
opening the door to this prejudicial information, Trial Counsel withdrew his objection, and the
recording was admitted. Id. at 153-55.
65
D.I. 30.
66
D.I. 27B.

10
March 3, 2020, White accepted a plea offer in the C Case.67 On August 28, 2020

White was sentenced for the A, B, and C Cases.68

i. Sentencing

The Court sentenced White in the A Case as follows: for Drug Dealing, Tier

4 (IN19-10-1257), 25 years at Level V suspended after 2 years, for 2 years at Level

IV DOC Discretion suspended after 6 months, for 18 months at Level III; for Drug

Dealing, Tier 4 (IN19-10-1259), 2 years at Level V; for Drug Dealing, Tier 2 (IN19-

10-1261), 2 years at Level V; and for each count of Endangering the Welfare of a

Child (IN19-10-1262, IN19-10-1263, IN19-10-1264), 1 year at Level V suspended

for 1 year Level III.69

The Court sentenced White in the B Case as follows: for Racketeering (IN18-

10-1725), 2 years at Level V.70

The Court sentenced White in the C Case as follows: for Drug Dealing, Tier

4 (IN19-11-0382), 2 years at Level V.71

In total, White was sentenced to 10 years of unsuspended Level V time: 6

years in the A Case, and 2 years in the B Case and 2 years in the C Case.72

67
D.I. 15C.
68
D.I. 33.
69
Id. At sentencing the Court merged the following charges: Aggravated Possession (IN19-10-
1258) with Drug Dealing, Tier 4 (IN19-10-1257); and Aggravated Possession (IN19-10-1260)
with Drug Dealing, Tier 4 (IN19-10-1259). Id.
70
Id.
71
Id.
72
Id.

11
 D. Postconviction Procedural History in the A Case

On September 27, 2020, White, represented by Appellate Counsel,73 filed a

Notice of Appeal in the A Case.74 On Appeal, Appellate Counsel presented two

claims of error.75 On August 6, 2021, the Delaware Supreme Court affirmed White’s

conviction.76

On March 22, 2022, White filed the instant pro se Rule 61 Motion.77 On April

7, 2022, the Court asked Trial Counsel to file an Affidavit in response to the

allegations in White’s Rule 61 Motion.78 On April 26, 2022, White filed a Motion

for Appointment of Counsel,79 which the Court granted on June 2, 2022.80 On

October 17, 2022, Patrick Collins, Esq. was appointed as Rule 61 Counsel.81

On June 22, 2023, Rule 61 Counsel filed a Motion to Withdraw because he

determined White had no meritorious postconviction claims.82 On June 23, 2023,

73
John Malik, Esq. was White’s Trial Counsel and Appellate Counsel, and represented White in
all three of his cases.
74
D.I. 34.
75
Appellate Counsel argued that the Superior Court abused its discretion when it admitted text
messages from one of the cell phones seized during the search because the State failed to
authenticate the texts pursuant to DRE 901. See D.I. 48, A664. Appellate Counsel also argued
that the prosecutor made improper arguments during the rebuttal summation by stating his personal
opinion about a piece of evidence, misstating the burden of proof, and denigrating the role of
defense counsel. See D.I. 48, A664.
76
White v. State, 258 A.3d 147 (Del. 2021), D.I. 43.
77
D.I. 44.
78
D.I. 46. Trial Counsel’s affidavit was filed on May 19, 2022. D.I. 48.
79
D.I. 47.
80
D.I. 49.
81
D.I. 53.
82
Mem. in Supp. of Mot. to Withdraw

12
White responded to Rule 61 Counsel’s Motion to Withdraw.83 On November 16,

2023, the State responded to the Rule 61 Motion.84 White did not reply to the State’s

response.85

White argues that Trial Counsel was ineffective for failing to notify him of

two pieces of evidence that were presented at his trial, and White was prejudiced

because had he known about the evidence “he would have accepted one of the State’s

plea offers” and received a lighter sentence.86

III. STANDARDS OF REVIEW

A. Rule 61: Procedural Bars to Postconviction Relief

Superior Court Criminal Rule 61 governs postconviction relief.87 Under Rule

61, an incarcerated individual may seek to dismiss his conviction by establishing a

lack of jurisdiction, or alternative ground, that sufficiently establishes a factual and

legal basis for a collateral attack upon the conviction.88 While “Rule 61 is intended

to correct errors in the trial process, [it does] not allow defendants unlimited

opportunities to relitigate their convictions.”89 Before considering the merits of any

83
D.I. 64.
84
D.I. 69.
85
The Scheduling Order stated, “Should White choose to reply to the State’s response to the
Motion for Postconviction Relief, he shall file his reply within 30 days of service of the response.”
D.I. 65.
86
Mem. in Supp. of Mot. to Withdraw at 13.
87
Super. Ct. Crim. R. 61(a)(1).
88
Id.
89
Ploof v. State, 75 A.3d 811, 820 (Del. 2013).

13
postconviction relief claims, the Court must first consider whether any procedural

bars exist.90 Rule 61(i) establishes four procedural bars to postconviction relief.91

Rule 61(i)(1) requires a motion for postconviction relief be filed within one year of

a final judgment or conviction.92 Rule 61(i)(2) bars successive motions for

postconviction relief unless certain conditions are met.93 Pursuant to Rule 61(i)(3)

and (4), any ground for relief not previously raised is deemed waived and any claims

formerly adjudicated are thereafter barred.94 There is an exception to the Rule

61(i)(3) procedural bar to relief. A movant may overcome procedural defaults if

they show “(A) cause for relief from the procedural default and (B) prejudice from

violation of the movant’s rights.”95 A “cause” from procedural default can be shown

through an ineffective assistance of counsel (“IAC”) claim.96 Since IAC claims

90
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
91
Super. Ct. Crim. R. 61(i)(1)-(4).
92
Super. Ct. Crim. R. 61(i)(1).
93
Rule 61(i)(2) bars successive or subsequent motions for postconviction relief unless the movant
is able to “pled with particularity” that (i) “new evidence exists that 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) “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.” Super. Ct. Crim. R. 61(d)(2).
94
This includes proceedings leading to the judgment of conviction, in an appeal, in a
postconviction proceeding, or in a federal habeas corpus proceeding. See Super. Ct. Crim. R.
61(i)(5), (d)(2)(i), (ii).
95
Super. Ct. Crim. R. 61(i)(3)A, B.
96
Younger, 580 A.2d at 556.

14
cannot be raised at any earlier stage in the proceedings, they are properly presented

by way of a motion for postconviction relief.97

B. Rule 61: Ineffective Assistance of Counsel

To succeed on an IAC claim, a defendant must satisfy the standard set forth

in Strickland v. Washington.98 That is, the defendant must demonstrate that: (1) trial

counsel’s performance was deficient,99 and (2) the defendant was prejudiced by the

deficiency.100 To establish prejudice, the defendant must show “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”101 In the context of plea agreements, to show prejudice

“defendants must demonstrate a reasonable probability they would have accepted

the earlier plea offer had they been afforded effective assistance of counsel.”102

Further, the defendant must demonstrate “a reasonable probability the plea would

have been entered” and “a reasonable probability that the end result of the criminal

97
Sabb v. State, 2021 WL 2229631, at *1 (Del. May 28, 2021); Green v. State, 238 A.3d 160, 187-
188 (Del. 2020); Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan-
Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016).
98
466 U.S. 668, 694 (1984).
99
Sykes v. State, 147 A.3d 201, 211 (Del. 2015) (citing Strickland, 466 U.S. at 694).
100
Strickland, 466 U.S. at 694.
101
Id.
102
Missouri v. Frye, 556 U.S. 134, 147 (2012).

15
process would have been more favorable by reason of a plea to a lesser charge or a

sentence of less prison time.”103

Although not insurmountable, the Strickland standard is highly demanding

and leads to a strong presumption that counsel’s conduct fell within a wide range of

reasonably professional assistance.104 Mere allegations of ineffectiveness are not

enough.105 A petitioner must demonstrate that counsel’s representation “fell below

an objective standard of reasonableness under prevailing professional norms.”106

Counsel “may not be faulted for reasonable miscalculation or lack of foresight or for

failing to prepare for what appear to be remote possibilities.”107 There is a strong

presumption that a defense counsel’s conduct constituted sound trial strategy108 and

a defendant must make and substantiate concrete allegations that overcome this

presumption.109 The “[b]enchmark for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.”110

103
Id.
104
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. Oct.
31, 2008).
105
Younger, 580 A.2d at 556.
106
Strickland, 466 U.S. at 687-88.
107
State v. Finn, 2012 WL 1980566, at *4 (Del. Super. May 23, 2012) (citing Harrington v.
Richter, 562 U.S. 86, 102-110 (2011)).
108
Strickland, 466 U.S. at 694.
109
See Salih, 962 A.2d at 257; see also Albury, 551 A.2d at 59.
110
Cooke v. State, 977 A.2d 803, 840 (Del. 2009) (internal quotations omitted).

16
 C. Rule 61: Motion to Withdraw

Pursuant to Superior Court Criminal Rule 61(e)(7), Rule 61 Counsel may

move to withdraw if they find the movant’s claim to be “so lacking in merit that

counsel cannot ethically advocate it, and counsel is not aware of any other substantial

ground for relief available to the movant.”111 When evaluating a motion to

withdraw, the Court must be satisfied that moving counsel made conscientious

examinations of the record and the law for any claims that could arguably support

the Rule 61 motion.112 The Court should also undertake its own review of the

relevant claims to determine whether the Rule 61 motion would be devoid of “any,

at least, arguable postconviction claims.”113

IV. DISCUSSION

A. Ineffective Assistance of Counsel Claim

This is White’s first Rule 61 Motion, and it is timely. Further, White is

asserting an IAC claim that overcomes the procedural bar of Rule 61(i)(3).114 White

claims that Trial Counsel was ineffective for failing to notify him of two pieces of

evidence,115 and if counsel had made him aware of the evidence, White would have

111
Super. Ct. Crim. R. 61(e)(7).
112
State v. Coston, 2017 WL 6054944, at *2 (Del. Super. Dec. 7, 2017).
113
Id.
114
D.I. 64.
115
White asserts he was not informed of the wiretap phone call and the body camera footage shown
at trial. Mem. in Supp. of Mot. to Withdraw at 13.

17
accepted a plea.116

To prevail on his IAC claim, White must show that Trial Counsel’s conduct

was objectively unreasonable and, but for Trial Counsel’s conduct, the result would

have been different.117 There is no need to address the Strickland objective

unreasonableness prong if there was no prejudice to the defendant. 118 The defendant

must make “concrete allegations of actual prejudice and substantiate them or risk

summary dismissal.”119 If the defendant is unable to show prejudice, his IAC claim

will be denied.120 To establish prejudice in a case where the defendant rejected a

plea because of counsel’s deficient performance, “it is necessary to show a

reasonable probability that the end result of the criminal process would have been

more favorable by reason of a plea to a lesser charge or a sentence of less prison

time.”121

i. The Plea Offers

White alleges he was offered “a max four year plea to wrap up” Cases A, B,

116
D.I. 64.
117
Strickland, 466 U.S. at 694.
118
Ploof v. State, 75 A.3d 811, 825 (Del. 2013) (“Strickland is a two-pronged test, and there is no
need to examine whether an attorney performed deficiently if the deficiency did not prejudice the
defendant.”).
119
Outten v. State, 720 A.2d 547, 557 (Del. 1998).
120
Ploof, 75 A.3d at 825.
121
Frye, 566 U.S. at 147.

18
and C.122 The record is devoid of any such plea offer.123 As noted above, White

received four plea offers.124 The first plea offered was to Conspiracy to Commit

Racketeering in the B Case and called for open sentencing.125 The second plea

offered was to Conspiracy to Commit Racketeering in the B Case and Drug Dealing

Tier 4 (Heroin) in the C Case, and called for open sentencing.126 The third plea

offered was the Global Plea previously discussed,127 which included one count from

each indictment.128 It is this Global Plea that was discussed at White’s Final Case

Review in the A Case.129 The fourth plea offered was to Drug Dealing Tier 4

(Cocaine) in the C Case, and called for open sentencing.130 In the Global Plea, the

State agreed to cap its unsuspended Level V recommendation to 15 years, called for

open sentencing, a presentencing investigation, and for the Level V time to run

consecutively.131 Trial Counsel represented to the Court at Final Case Review that

122
D.I. 64.
123
The State and Trial Counsel have communicated to Rule 61 Counsel that while there may have
been discussions about White cooperating with the State, neither party recalls any discussion about
a specific number of years. Mem. in Supp. of Mot. to Withdraw at 14.
124
Mem. in Supp. of Mot. to Withdraw at 5; A862-65.
125
A862. The record reflects that White accepted this plea in the B Case on January 7, 2020. D.I.
27B.
126
A863. On page 14 of his Memorandum, Rule 61 Counsel incorrectly states that this particular
plea concerned the A and B Cases. This is incorrect. This plea offer involved Cases B and C. See
Id.
127
See supra p. 9.
128
See Mem. in Supp. of Mot. to Withdraw at 15; A864.
129
Mem. in Supp. of Mot. to Withdraw at 15.
130
A865. The record reflects White accepted this plea in the C Case on March 3, 2020. D.I. 15C.
131
A864. The minimum mandatory for this plea would have been six years. Mem. in Supp. of
Mot. to Withdraw at 15.

19
White rejected the Global Plea.132 White proceeded to trial where he was found

guilty of all charges in the A Case.133

ii. Sentencing

At White’s August 28, 2020 sentencing in all three cases (A, B and C), the

State asked for 15 years of unsuspended Level V time.134 The State noted that White

was a career drug dealer as evidenced by his numerous convictions over the years.135

Trial Counsel presented mitigating factors and argued for concurrent rather than

consecutive, sentencing.136 The Court merged the aggravated possession charges

with the drug dealing charges.137 The Court concluded that the non-concurrent

minimum mandatory of 10 years was a fair resolution138 and sentenced him to 10

years at Level V with descending levels of community supervision to follow.139

132
FCR Tr. at 4-5.
133
D.I. 30. After Trial, White took a plea in his two remaining cases. Mem. in Supp. of Mot. to
Withdraw at 4.
134
D.I. 35 (“Sentencing Tr.”) at 5. The State’s recommended cap of 15 years unsuspended Level
V time was the same as the cap contained in the plea. See A864.
135
See Sentencing Tr. at 5-6.
136
Id. at 15-19, 23-24. Concurrent sentencing would have resulted in a minimum mandatory of
four-years. Id. at 13. At Sentencing, Trial Counsel argued the following: “So, Your Honor, it’s
my request that the Court temper the sentence. Again, the state asked for 15. The minimum-
mandatory is four. Being realistic, I’m not going to ask the Court to do that, but I would ask that
the Court sentence him in the middle and at least for some of the drug charges to run concurrently
with the racketeering case, so that there is a sentence between what the minimum is and what the
state is requesting of 15 years.” Id. at 23-24.
137
The Court merged the following charges: Aggravated Possession (IN19-10-1258) with Drug
Dealing, Tier 4 (IN19-10-1257); and Aggravated Possession (IN19-10-1260) with Drug Dealing,
Tier 4 (IN19-10-1259). D.I. 33.
138
See Sentencing Tr. at 28. The parties agreed that if the Level V time ran consecutively than
the minimum mandatory was 10 years. See id. at 13-14.
139
See D.I. 33.

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Even, assuming arguendo, like White claims, a four-year global plea offer was made

to White at some point, the Court was under no obligation to accept that

recommendation, and White has not argued the Court would have followed such a

recommendation. Further, in accordance with Rule 11, any recommendations made

during the plea negotiation process are not binding upon the court.140 At sentencing,

the Court had the discretion to run White’s Level V sentences concurrently and

decided not to, stating:

The minimum sentence, if I don’t run things concurrently, is ten years.
I think that is sufficient to justify the sentence. I think the 15 years
that’s being asked by the state is excessive, but I think four which, in
essence, would have been the minimum [had the sentences run
concurrently] is not reflective of the conduct.141

Based on the record, White has failed to demonstrate that he was prejudiced by the

alleged ineffectiveness of Trial Counsel.

For all these reasons, White’s IAC claim is meritless, and his Rule 61 Motion

must be DENIED.

B. Rule 61 Counsel’s Motion to Withdraw

On June 22, 2023, Rule 61 Counsel filed a Motion to Withdraw as

Postconviction Counsel pursuant to Superior Court Criminal Rule 61(e)(6) after

140
Super. Ct. Crim. R. 11(e)(1)(B).
141
Sentencing Tr. at 28.

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determining White had no meritorious postconviction claim.142 Rule 61(e)(7)

provides that:

[i]f counsel considers the movant's claim to be so lacking in merit that
counsel cannot ethically advocate it, and counsel is not aware of any
other substantial ground for relief available to the movant, counsel may
move to withdraw. The motion shall explain the factual and legal basis
for counsel's opinion and shall give notice that the movant may file a
response to the motion within 30 days of service of the motion upon the
movant.143

After undertaking a thorough examination of the record to evaluate White’s claim,

Rule 61 Counsel has determined the claim to be so lacking in merit that he cannot

ethically advocate them.144 Rule 61 Counsel is not aware of any other substantial

claims for relief available to White, and because he finds no potential meritorious

grounds on which to base a Rule 61 motion, he seeks to withdraw as counsel.145 The

Court is satisfied that Rule 61 Counsel has made a conscientious and thorough

examination of the record and, upon de novo review of the record, the Court finds

that White’s Rule 61 Motion is devoid of any meritorious postconviction claim.

Consequently, Rule 61 Counsel’s Motion to Withdraw is GRANTED.

142
See Motion to Withdraw along with the accompanying Memorandum in Support of Motion to
Withdraw and Appendix. D.I. 61, D.I. 62, D.I. 63.
143
Super. Ct. Crim. R. 61(e)(7).
144
See Mem. in Supp. of Mot. to Withdraw.
145
Id.

22
 V. CONCLUSION

For these reasons, White’s Motion for Postconviction Relief is DENIED and

Rule 61 Counsel’s Motion to Withdraw is GRANTED.

IT IS SO ORDERED.

/s/ Jan R. Jurden
Jan R. Jurden, President Judge

Original to Prothonotary

cc: Jason White, Defendant
Erika R. Flaschner, DAG
Patrick J. Collins, Esq.

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