IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE, )

)

Plaintiff, )

)

)

v. ) Cr. ID. No. 1411011704 and

) 1401016042

)

RYAN BRISCOE, )

)

Defendant. )

Submitted: April 8, 2015

Decided: July 20, 2015

COMMISSIONER’S REPORT AND RECOMMENDATION THAT

DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF

SHOULD BE DENIED.

Mark A Denney, Esquire, Delaware Department of Justice, 820 N. French St. 7th Floor, 

Criminal Division, Wilmington, Delaware, 19801, Attorneys for the State.

Thoams A. Foley, Esquire, Attorney at Law, 1905 Delaware Avenue, Wilmington, 

Delaware, 19806, Attorneys for Defendant.

MANNING, Commissioner
1

This 20th day of July, 2015, upon consideration of defendant Ryan Briscoe’s

Motion for Postconviction Relief, the Court finds the following: 

FACTS AND PROCEDURAL HISTORY

On November 12, 2013, Briscoe was shot by unidentified intruders during a home 

invasion at his residence (a boarding house) and transported to a hospital by a friend. 

After police spoke with Briscoe at the hospital they responded to the crime scene where 

they located a loaded 9 millimeter handgun, marijuana and 96 clear plastic bags of heroin 

in a hallway closet adjacent to his bedroom. On January 30, 2104, Briscoe was arrested 

and charged with, inter alia, Drug Dealing, Possession of a Firearm During the 

Commission of a Felony and Possession of a Firearm and Ammunition by a Person 

Prohibited. After his arrest, Briscoe was released on bond and retained Mr. Foley to 

represent him (Defense Counsel). Briscoe was indicted on March 17, 2014 (case ID 

#1401016042). Trial was initially scheduled for September 23, 2014, but was 

rescheduled twice, until December 4, 2014. In preparation for trial, Defense Counsel 

filed numerous motions with the Court, including a motion to sever, motion to suppress 

statements, motion in limine to exclude DNA evidence, and finally, a motion related to 

the on-going scandal at the Office of the Chief Medical Examiner.1

While Briscoe was pending trial in case ID #1401016042, he was arrested on 

November 19, 2004—again for Drug Dealing, Possession of a Firearm During the 

Commission of a felony and other related charges (case ID # 1411011704). It turns out, 

that while out on bond for the first arrest, Briscoe was the target of a heroin investigation 

by police at his new residence. Police, utilizing a confidential informant, made two 

controlled buys from his residence in October and November of 2014. Police 

 1 Aff. of Def. Counsel.
2

subsequently executed a search warrant on November 19, 2014, whereby Briscoe was 

located in the residence and arrested. Inside the residence, in a bedroom determined to be 

Briscoe’s, police located over 3,900 bags of heroin and a loaded .32 caliber firearm. Per 

the arrest warrant, Briscoe confessed to possessing both the heroin and the firearm, 

telling police that the females also inside the apartment “had nothing to do with it.”2

As if Defense Counsel did not have a tough enough row to hoe already, Briscoe

was subject to sentencing as a Habitual Offender under 11 Del. C. § 4214(a) and (b) due 

to his prior convictions. Briscoe had previously been convicted of Trafficking in 

Controlled Substances (1991), Possession with Intent to Deliver a Narcotic (2010), 

Delivery of a Schedule II Narcotic (1994), Possession or Distribution of a Controlled 

Substance within 300 feet of a Park (1999), and Maintaining a Dwelling or Vehicle for 

Keeping a Controlled Substance (1991). 3 Simply put, if Briscoe gambled by going to 

trial on either case and lost, he faced the prospect of a mandatory life sentence if 

convicted of any of the violent felonies enumerated under § 4214(b) that he was charged 

with.

In light of this situation, Defense Counsel quickly struck a deal with the State 

allowing Briscoe to plead guilty to one charge from each case, a ten year Level V 

recommendation, and most importantly, the State would not seek to declare Briscoe a 

Habitual Offender under § 4214(a) or (b). Briscoe entered his guilty plea and was 

sentenced to the recommended ten years at Level V, followed by probation, on December 

4, 2014—the day he was scheduled to start trial on case ID # 1401016042.

 2 Id. 3 Immediate Sentencing Form. 
3

DEFENDANT’S RULE 61 CLAIM

 Briscoe timely filed his first pro se motion for postconviction relief with this 

Court on April 8, 2015.4 Briscoe’s single claim for postconviction relief, in its entirety,

is:

The defendant did not enter an intelligent, knowing and voluntary plea as 

the Sas [sic] a result of ineffective assistance of counsel for failing to file 

[sic] suppression motion.

5

LEGAL STANDARD

To prevail on an ineffective assistance of counsel claim, a defendant must meet 

the two-pronged Strickland test by showing that: (1) counsel performed at a level “below 

an objective standard of reasonableness” and that, (2) the deficient performance 

prejudiced the defense.6 The first prong requires the defendant to show by a 

preponderance of the evidence that defense counsel was not reasonably competent, while 

the second prong requires the defendant to show that there is a reasonable probability 

that, but for defense counsel’s unprofessional errors, the outcome of the proceedings 

would have been different.7

When a court examines a claim of ineffective assistance of counsel, it may 

address either prong first; where one prong is not met, the claim may be rejected without 

contemplating the other prong.8

Mere allegations of ineffectiveness will not suffice; instead, a defendant must 

make and substantiate concrete allegations of actual prejudice.9 An error by defense 

 4 Briscoe did not file an appeal with the Delaware Supreme Court.

5 Briscoe’s Motion was supported by an extensive, typed, 22 page Memorandum of Law.

6 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). 7 Id.

8 Id. at 697. 9 Younger v. State, 580 A.2d 552, 556 (Del. 1990).
4

counsel, even if professionally unreasonable, does not warrant setting aside the judgment 

of conviction if the error had no effect on the judgment.10

Although not insurmountable, the Strickland standard is highly demanding and 

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

reasonable professional assistance.11 Moreover, there is a strong presumption that 

defense counsel’s conduct constituted sound trial strategy.12 

In considering post-trial attacks on counsel, Strickland cautions that trial 

counsel’s performance should be reviewed from the defense counsel’s perspective at the 

time decisions were being made.13 It is all too easy for a court, examining counsel’s 

defense after it has proved unsuccessful, to conclude that a particular act or omission of 

counsel was unreasonable.14 A fair assessment of attorney performance requires that 

every effort be made to eliminate the distorting efforts of hindsight. Second guessing or 

“Monday morning quarterbacking” should be avoided. 15

The United States Supreme Court recognized that there are countless ways to 

provide effective assistance in any given case. The United States Supreme Court 

cautioned that reviewing courts must be mindful of the fact that unlike a later reviewing 

court, trial counsel observed the relevant proceedings, knew of materials outside the 

record, and interacted with his client, opposing counsel, and the judge.16

Even the best criminal defense attorneys would not defend a particular client in 

the same way. Consequently, defense counsel must be given wide latitude in making 

 10 Strickland, 466 U.S.at 691. 11 Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. Oct. 31, 

2008).

12 Strickland at 466 U.S. 688-689. 13 Id. 14 Id 15 Id. 16 Harrington v. Richter, 562 U.S. 86, 105-6 (2011).
5

tactical decisions.17 Counsel’s representation must be judged by the most deferential of 

standards. There is a strong presumption that defense counsel’s conduct constituted 

sound trial strategy.18

ANALYSIS

At the outset, the Court notes that while Briscoe’s motion is couched as one of 

ineffective assistance of counsel, the goal of his motion is really to withdraw his guilty 

plea. Nevertheless, Brisoce’s claim is governed by Superior Court Criminal Rule 61. 

Before examining the merits of Briscoe’s claim, the Court will first examine it in light of 

the procedural requirements imposed under Rule 61(i). Finally, a reviewing court need 

not consider the merits of a Rule 61 motion if the motion is procedurally barred.19

The thrust of Briscoe’s claim is that had Defense Counsel done more investigation 

and moved to suppress evidence from the November 19, 2014 arrest, the outcome of his 

cases would have been different—somehow. 

Conversely, Defense Counsel’s Affidavit paints a much different picture. It is 

clear that Defense Counsel is an experienced criminal defense attorney who was fully 

prepared to litigate, and if necessary, go to trial on the first arrest. However, while 

Defense Counsel and Briscoe may have reasonably expected a “win” at trial on the first 

case, the proverbial rug was pulled out from under them with Briscoe’s second arrest—

on new and even more serious charges—on the eve of trial. As Defense Counsel 

succinctly put it, the first case was based on “constructive possession” and Briscoe had a 

“viable trial defense,” the second case put Briscoe in “checkmate.”20

 17 Id. 18 Strickland, 466 U.S. at 689; Harrington v. Richter, 131 S.Ct. 770 (2011).

19 Younger, 580 A.2d at 554. 20 Aff. of Def. Counsel.
6

Defense Counsel, to his credit, moved quickly, contacting the State in an attempt 

to resolve both cases. Defense Counsel stated that at the time of the plea on December 4, 

2014, he had reviewed the warrant for the November 19, 2014 arrest, and was confident 

that he was able to “provide intelligent counsel to Mr. Briscoe.” Additionally, Defense 

Counsel stated that he was “never asked [by Briscoe] to pull cell phone records, video 

surveillance or raise any possible Franks issues related to the search warrant.”

Perhaps most significant to the predicament Briscoe found himself in after the 

second arrest, the State indicated that the plea offer would be “withdrawn in the event 

Mr. Briscoe went to trial regarding the November 2013 set of charges.”21 While Briscoe 

may have had more than a fighting chance in front of a jury on the first case, the State 

had just been dealt a new set of card and knew how to play them. Clearly, the State 

intended to leverage the more favorable facts (from its point of view) of the second arrest 

to avoid a trial and resolve both cases.

To this end, Defense Counsel stated that he “communicated in person [with] Mr. 

Briscoe (now detained) who clearly understood and shared counsel’s view, that [he] 

would have to prevail at trial on both cases in order to obtain a better result.”

Strickland requires relief only if, but for counsel’s unprofessional errors, claimant 

can show a reasonability probability that the outcome would have been different. 

Briscoe’s argument, supported by his 22 page Memorandum of Law, ignores the fact that 

his argument is speculative—at best. As the State aptly noted in its Response, Briscoe 

had “confessed to conduct which amounted to at least 40 years of incarceration.” 

In the end, the Court is left convinced that not only was Defense Counsel 

competent in his representation, but he saved Briscoe from a life sentence, or at least a 

 21 Aff. of Def. Counsel.
7

much longer jail sentence, by quickly assessing the strength of the second case and 

moving to resolve both at the same time; as previously noted, the State’s very generous 

plea offer was predicated on Briscoe not going to trial on his first arrest. 

By pleading guilty Briscoe waived any legal challenges he could have raised as to 

the second arrest. Because Briscoe could have raised the various legal issues he now 

cites, but elected not to, his claims are procedurally barred under Rule 61(i)(3).22 

Guilty Plea

As the crux of Briscoe’s argument is that his guilty plea was not knowingly and 

intelligently and voluntarily made, an examination of the colloquy and plea paperwork is 

necessary. 

An examination of the guilty plea and sentencing transcript reveals no anomalies 

in the colloquy or entry of the plea. The standard Plea Agreement and Truth-InSentencing Guilty Plea Forms were completed accurately. On the forms, Briscoe 

checked the box to indicated that he understood his rights and agreed to waive them in 

exchange for accepting the State’s plea offer. During the colloquy, Defense Counsel 

stated that Briscoe understood the terms of the offer and that “[h]e waives all rights he 

would otherwise enjoy.”23 Additionally, the Court asked Briscoe if he heard what 

Defense Counsel said and if it was correct, to which he replied “yes.”24 Finally, Briscoe 

made it a point to explain to the Court that as a shooting victim himself, he “made a bad 

decision” and that he never intended any harm with the firearm he possessed.

 22 Rule 61(i)(3) Procedural Default. Any ground for relief that was not asserted in the proceedings leading 

to the judgment of conviction, as required by the rules of the court, is thereafter barred, unless the movant 

shows (A) Cause for relief from the procedural default and (B) Prejudice from violation of the movant’s 

rights.

23 Sentencing Transcript at 5. 24 Id. at 7.
8

“A defendant's statements to the Superior Court during the guilty plea colloquy 

are presumed to be truthful.”25 A review of the record reveals that Briscoe knowingly and 

intelligently waived his right to indictment in the second arrest, trial and appeal as to both 

cases and that he understood the penalties he faced by pleading guilty. Briscoe did not 

ask a single question of the Court nor object to anything said by Defense Counsel or the 

State. There is simply nothing in the record to rebut the presumption that Briscoe 

understood what he was doing when he pled guilty. 26

For the foregoing reasons, Briscoe’s Motion should be DENIED.

IT IS SO RECOMMENDED.

 /s/ Bradley V. Manning

BRADLEY V. MANNING, 

Commissioner

oc: Prothonotary

cc: Defendant

 25 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 26 It is also worth noting that this was certainly not the first time Briscoe had pled guilty, and therefore, had 

prior experience with the guilty plea process.