IN THE SUPREME COURT OF THE STATE OF DELAWARE

ELI ESCALERA,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Plaintiff Below,

Appellee.

§

§

§ No. 407, 2020

§

§

§ Court Below–Superior Court

§ of the State of Delaware

§ 

§ Cr. ID Nos. 1606024326A (N)

§ 1606024326B (N) 

§

§ 

Submitted: May 14, 2021

 Decided: August 4, 2021

Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES, 

Justices.

O R D E R

After careful consideration of the parties’ briefs and the record on appeal, it 

appears to the Court that:

(1) The appellant, Eli Escalera, appeals the Superior Court’s denial of his 

motion for postconviction relief. For the following reasons, we affirm the Superior 

Court’s judgment.

(2) In October 2016, a Superior Court grand jury charged Escalera by 

indictment with aggravated menacing, possession of a deadly weapon during the 

commission of a felony (“PDWDCF”), possession of a deadly weapon by a person 

prohibited (“PDWBPP”), resisting arrest, and disorderly conduct. At Escalera’s 
2

request, the Superior Court severed the person-prohibited charge (Case B) from the 

remaining charges (Case A).

(3) Case A proceeded to a jury trial in April 2017. The evidence presented 

at trial fairly established the following facts. In the evening of June 29, 2016, Amoni 

Green was waiting for her boyfriend at a bus stop when a stranger—later identified 

as Escalera—advanced toward her, wielding a black knife in his right hand. Green

ran into the median of Route 13 and flagged down Officer Michael Zolnowski of the 

New Castle County Police Department who happened to be driving by. As Officer 

Zolnowski pulled into a parking lot adjacent to the bus stop, Escalera began walking 

away. Green saw Escalera flick his wrist in the direction of a nearby fence. A 

witness to the altercation between Escalera and Green placed a call to 911 and 

described the aggressor as wearing a green shirt and tan shorts. Officer Zolnowski 

took Escalera—who was wearing a green collared shirt and tan shorts and was 

unarmed—into custody at the scene. Another responding officer recovered a black 

knife from the area where Green observed Escalera snap his wrist. The knife was

tested for DNA, but the DNA recovered from the knife could not be linked to 

Escalera. The jury acquitted Escalera of resisting arrest but found him guilty of the 

remaining charges in Case A. After the jury returned its verdict, Escalera was tried 

and found guilty at a bench trial of PDWBPP in Case B. On the State’s motion, the 

Superior Court declared Escalera to be a habitual offender, and the Superior Court 
3

sentenced him to twenty-five years of imprisonment followed by decreasing levels 

of supervision. We affirmed Escalera’s convictions and sentence on direct appeal.1

(4) On December 14, 2018, Escalera filed a timely motion for 

postconviction relief under Superior Court Criminal Rule 61. Escalera raised several 

arguments, including two claims of ineffective assistance of counsel. The Superior 

Court appointed counsel to assist Escalera with the postconviction proceedings. 

Postconviction counsel later moved to withdraw, indicating that, after a careful 

review of the record, she had not identified any potential grounds for postconviction 

relief. After expanding the record with briefing and directing trial counsel to file an 

affidavit addressing Escalera’s claims of ineffective assistance of counsel, the 

Superior Court granted postconviction counsel’s motion to withdraw and denied 

Escalera’s motion for postconviction relief.2 This appeal followed.

(5) We review the Superior Court’s denial of postconviction relief for 

abuse of discretion and questions of law de novo.

3

 The procedural bars of Rule 61 

must be considered before any substantive claims are addressed.4 Rule 61(i)(3) bars 

any ground for relief that was not asserted in the proceedings leading to the judgment 

of conviction.5 On the other hand, ineffective-assistance-of-counsel claims are 

1 Escalera v. State, 2018 WL 2406009 (Del. May 25, 2018).

2 State v. Escalera, 2020 WL 6376646 (Del. Super. Ct. Oct. 30, 2020).

3 Baynum v. State, 211 A.3d 1075, 1082 (Del. 2019).

4 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

5 Del. Super. Ct. Crim. Rule 61(i)(3).
4

properly raised in a timely filed motion for postconviction relief.6 Claims of 

ineffective assistance of counsel are governed by the two-pronged test set forth in 

Strickland v. Washington.

7

 In order to prevail on a claim of ineffective assistance of 

counsel, the defendant must demonstrate that (i) trial counsel’s representation fell 

below an objective standard of reasonableness,8and (ii) but for counsel’s deficient 

performance, there is a reasonable probability that the result of the proceeding would 

have been different.9 Although not insurmountable, there is a strong presumption 

that counsel’s representation was professionally reasonable.10 “If an attorney makes 

a strategic choice after thorough investigation of [the] law and facts relevant to 

plausible options, that decision is virtually unchallengeable.”11 

(6) On appeal, Escalera raises three arguments: (i) trial counsel was 

ineffective for failing to obtain a DNA sample from the victim’s boyfriend; (ii) trial 

counsel was ineffective for failing to find and question the person who made the 911 

call; and (iii) the grand jury indictment was defective. As a preliminary matter, 

6 Green v. State, 238 A.3d 160, 175 (Del. 2020).

7 466 U.S. 668 (1984).

8

Id. at 687-88.

9 Green, 238 A.3d at 174.

10 Albury v. State, 551 A.2d 53, 59 (Del. 1988).

11 Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (internal quotation marks and citations

omitted).
5

Escalera has waived any arguments made below but not briefed on appeal.

12

 And 

the claims Escalera raises on appeal are unavailing.

(7) Escalera’s first two arguments—his ineffective-assistance-of-counsel 

claims—mirror those that he made below. After careful consideration, we conclude 

that these claims must fail for the well-stated reasons given by the Superior Court in 

its October 30, 2020 order. In short, we agree with the Superior Court’s conclusion 

that Escalera is unable to satisfy either prong of the Strickland analysis: (i) he has 

failed to allege sufficient facts establishing that trial counsel’s performance fell 

below an objective standard of reasonableness, and (ii) he cannot show that, but for 

counsel’s allegedly deficient performance, there is a reasonable probability that the 

outcome of his trial would have been different. 

(8) For the first time on appeal, Escalera also argues that the Superior Court 

abused its discretion when it allowed the State to prosecute him based on a “defective 

charging instrument.” Escalera alleges that Count II of the indictment (PDWDCF) 

was defective because it incorrectly stated that PDWDCF requires that he 

unknowingly possessed a deadly weapon when, in fact, PDWDCF requires that 

Escalera knowingly possessed a deadly weapon. Because Escalera did not raise this 

12 Del. Supr. Ct. R. 14(b)(vi)A.(3).
6

claim below, we review it for plain error.

13

 This claim is also procedurally barred 

under Rule 61(i)(3) because it could have been raised in the proceedings below.

14

 In 

any event, Escalera’s claim is without merit.

(9) An indictment must be a “plain, concise and definite written statement 

of the essential facts constituting the offense charged.”15 The purpose of an

indictment is to put the defendant on notice of the crimes with which he has been 

charged and to preclude a subsequent prosecution for the same offense.16 Here, the 

indictment contained a typographical error and incorrectly stated that Escalera 

violated 11 Del. C. § 1447 by unknowingly possessing a deadly weapon. But Count 

II of the indictment cited to § 1447, which defines PDWDCF, and Escalera does not 

claim that the indictment failed to put him on notice of the crime for which he was 

charged such that he was unable to prepare a defense.

17

 Moreover, the Superior 

Court corrected the error by properly instructing the jury on the elements of 

13 Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented 

for review; provided, however, that when the interests of justice so require, the Court may 

consider and determine any question not so presented.”).

14 Del. Super. Ct. Crim. R. 12 (providing that any objection based on a defect in an 

indictment, other than lack of jurisdiction or failure to charge a crime, is waived unless 

raised before trial).

15 Del. Super. Ct. Crim. R. 7(c)(1).

16 Malloy v. State, 462 A.2d 1088, 1092 (Del. 1983).

17 See State v. Blendt, 120 A.2d 321, 323 (Del. 1956) (“[A]n indictment should be sufficient 

if it fulfills its basic purpose of acquainting the defendant with the offense charged 

sufficiently to enable him to prepare his defense and to protect himself against double 

jeopardy.”).
7

PDWDCF and the required mens rea.

18

 Under these circumstances, we find no merit 

to Escalera’s claim.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior 

Court is AFFIRMED. 

BY THE COURT:

/s/ Tamika R. Montgomery-Reeves

Justice

18 See White v. State, 243 A.3d 381, 408 (Del. 2020) (declining to find plain error when a 

typographical error in the indictment was corrected by the trial judge in the presence of the 

jury).