IN THE SUPREME COURT OF THE STATE OF DELAWARE

JOSHUA D. BENSON,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Plaintiff Below,

Appellee.

§

§

§ No. 517, 2019

§

§

§ Court Below–Superior Court

§ of the State of Delaware

§ 

§ Cr. ID No. 1611007969 (K)

§ 

§

§ 

Submitted: July 7, 2020

 Decided: October 6, 2020

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

Justices.

O R D E R

After careful consideration of the appellant’s opening brief, the State’s motion 

to affirm, and the record on appeal, it appears to the Court that:

(1) The appellant, Joshua Benson, appeals from the Superior Court’s order 

denying his motion for postconviction relief. The State has filed a motion to affirm 

the Superior Court’s judgment on the ground that it is manifest on the face of 

Benson’s opening brief that his appeal is without merit. We agree and affirm.

(2) In February 2017, Benson was indicted for possession of a firearm by 

a person prohibited (“PFBPP”), possession of ammunition by a person prohibited, 

carrying a concealed deadly weapon (“CCDW”), resisting arrest, and failing to ride 
2

to the right of the roadway while operating a bicycle on a public roadway. On May 

1, 2017, Benson filed a motion to disqualify his court-appointed attorney. The 

Superior Court denied the motion and declined to appoint substitute counsel. 

Instead, after conducting a colloquy with Benson, the Superior Court permitted 

Benson to proceed pro se and ordered his court-appointed attorney to assist as standby counsel.

(3) On May 22, 2017, Benson filed a pro se motion to suppress arguing

that his arrest was not supported by probable cause. On June 26, 2017, the Superior 

Court held a suppression hearing at which the State introduced, among other 

evidence, the arresting officers’ patrol vehicle’s mobile video recording (“MVR”). 

The MVR showed Benson riding his bicycle on the left side of a roadway in a paved 

lane marked with a pedestrian symbol. After the police activated their emergency 

lights in an effort to initiate a traffic stop, Benson attempted to elude the officers. 

On July 28, 2017, the Superior Court denied the motion to suppress. The Superior 

Court held that the police officers had probable cause to believe that Benson was 

riding his bicycle in a safety zone in violation of 21 Del. C. § 4199 and, therefore, 

were justified in initiating a traffic stop. When Benson fled, the officers acquired 

additional probable cause to pursue and arrest Benson for resisting arrest. Therefore, 

the Superior Court found that the officers were authorized to perform a search 
3

incident to arrest, during which they found a loaded handgun in Benson’s jacket

pocket.

(4) On July 31, 2017, the parties appeared for trial and selected a jury. On 

August 1, 2017, Benson opted to plead guilty to PFBPP and resisting arrest instead

of proceeding to trial. As part of the plea agreement, the parties agreed that Benson 

was a habitual offender and would be sentenced under 11 Del. C. § 4214(d) due to 

his prior convictions for second degree assault, first degree reckless endangering, 

and CCDW. The Superior Court accepted Benson’s guilty plea as knowingly, 

intelligently, and voluntarily entered and—following the parties’ sentencing 

recommendation—sentenced him to fifteen years of Level V incarceration for 

PFBPP and to one year of Level V incarceration, suspended for one year of Level 

III probation, for resisting arrest. Benson did not appeal.

(5) On October 4, 2017, Benson filed a motion for correction of illegal 

sentence arguing that he had been improperly sentenced as a habitual offender under 

11 Del. C. § 4214(d) because CCDW is not a violent felony under 11 Del. C. § 

4201(c). The Superior Court denied the motion, and this Court affirmed on appeal, 

noting that each of Benson’s three prior convictions relied upon by the State to 

establish Benson’s habitual offender status is designated as a violent felony under 

11 Del. C. § 4201(c).1

 

1 Benson v. State, 2018 WL 6431748, at *2 (Del. Dec. 5, 2018).
4

(6) In February 2018, Benson filed a timely motion for postconviction 

relief under Superior Court Criminal Rule 61 (“Rule 61”). Benson argued that trial 

counsel was ineffective because she failed to conduct a full investigation into the 

facts of his case, failed to show him the MVR, failed to file a suppression motion as 

he requested, induced Benson to enter into a plea agreement under false pretenses 

because his conviction for CCDW was not a violent felony, and induced Benson into 

accepting a plea offer that prejudiced his right to appeal the Superior Court’s denial 

of his suppression motion. Benson later supplemented his motion with claims that 

(i) the State failed to disclose the MVR to him in violation of Brady v. Maryland2

and (ii) the Superior Court denied him his constitutional right to effective 

representation of counsel by declining to appoint substitute counsel, denying his 

motion to suppress, and denying his motion for a continuance made on the record 

during jury selection.

(7) A Superior Court Commissioner recommended that the Superior Court 

deny Benson’s postconviction motion.3 The Commissioner concluded that Benson 

was unable to overcome Rule 61’s procedural bars: his claims concerning his status 

as a habitual offender were procedurally barred as previously adjudicated under Rule 

61(i)(4), and his remaining claims were barred under Rule 61(i)(3) because they 

 

2 373 U.S. 83 (1963).

3 State v. Benson, 2019 WL 4723832 (Del. Super. Ct. Sept. 25, 2019).
5

were not raised in the proceedings leading to judgment of conviction and Benson 

could not excuse the procedural default. Following a de novo review of the 

Commissioner’s report and recommendation, the Superior Court accepted the 

Commissioner’s report in its entirety and denied Benson’s motion for postconviction 

relief. This appeal followed.

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

abuse of discretion, although we review questions of law de novo.

4

 Both the 

Superior Court and this Court on appeal must first consider the procedural bars of 

Rule 61 before considering the merits of any of the underlying postconviction 

claims.5 Rule 61(i)(3) provides that any ground for relief that was not asserted in 

the proceedings leading to the judgment of conviction is thereafter barred unless the 

defendant can establish cause for relief from the procedural default and prejudice

from a violation of the defendant’s rights. To establish cause, the movant must 

demonstrate that an external impediment prevented him from raising the claim 

earlier.6 To establish prejudice, the movant must show actual prejudice resulting 

from the alleged error.7 Rule 61(i)(4) bars any ground for relief that was previously 

adjudicated.

 

4 Claudio v. State, 958 A.2d 846, 850 (Del. 2008).

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

6

Id. at 556.

7 Albury v. State, 551 A.2d 53, 59 (Del. 1988).
6

(9) On appeal, Benson argues that the Superior Court erred when it (i) 

determined that his claims were procedurally barred; (ii) denied his motion for 

transcripts to be prepared at State expense in connection with the postconviction 

proceedings; and (iii) denied his request for an evidentiary hearing under Rule 

61(h)(1). Benson’s claims are unavailing.

(10) As a preliminary matter, Benson correctly states that his ineffective 

assistance of counsel claims were not subject to Rule 61(i)(3)’s procedural bar.8 

Nevertheless, we agree with the Superior Court that Benson’s allegations do not 

support a finding of ineffective assistance of counsel. Even assuming that Benson 

can assert a claim of ineffective assistance of counsel after waiving his right to 

counsel and proceeding pro se, the record does not support such a claim. To 

substantiate a claim of ineffective assistance of counsel in the guilty plea context, a 

defendant must show that: (i) his counsel’s conduct fell below an objective standard 

of reasonableness; and (ii) there was a reasonable probability that, but for counsel’s 

errors, he would not have pled guilty but would have insisted on going to trial.9

 

8 Green v. State, 2020 WL 4745392, at *9 (Del. Aug. 17, 2020) (“Simply put, ineffectiveassistance 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.”).

9 Albury, 551 A.2d at 59-60.
7

Although not insurmountable, there is a strong presumption that counsel’s 

representation was professionally reasonable.10

(11) Having carefully considered the parties’ submissions on appeal and the 

Superior Court record—including the affidavit filed by Benson’s former counsel in 

response to the allegations of ineffectiveness and counsel’s letter to Benson in which 

she described Benson’s actions as shown on the MVR and opined that there was no 

legal basis to file a motion to suppress—we conclude that the Superior Court did not 

err in finding that Benson’s claims of ineffective assistance of counsel were without 

merit. To the extent that Benson’s claims of ineffective assistance of counsel relate 

to his status as a habitual offender, the Superior Court correctly determined that those 

claims were procedurally barred as previously adjudicated.

(12) Turning to Benson’s claim that the State committed a Brady violation 

by failing to disclose the MVR to him, it is settled law that a knowing and voluntary 

guilty plea waives a defendant’s right to challenge any errors occurring before the 

entry of the plea, even those of constitutional dimensions.11 In this case, the 

transcript of the guilty plea colloquy supports the conclusion that Benson knowingly, 

intelligently, and voluntarily pled guilty with a full understanding of the rights he 

was waiving. A defendant’s statements to the Superior Court during 

 

10 Id. at 59.

11 Mack v. State, 2019 WL 7342514, at *2 (Del. Dec. 30, 2019).
8

the guilty plea colloquy are presumed to be truthful.12 Under oath, Benson informed 

the trial judge that he understood the charges against him and that he was pleading 

guilty because he was, in fact, guilty. He indicated that he had reviewed the plea 

agreement and that he understood it as well as all of the rights that he was waiving 

by pleading guilty. Benson also told the trial court that no one was forcing him to 

plead guilty. Benson’s knowing, intelligent, and voluntary plea waived his right to 

raise all errors or defects occurring before the plea, except a lack of subject matter 

jurisdiction, including any alleged Brady violation.13 Nevertheless, the record does 

not support Benson’s Brady violation claim. Assuming, arguendo, that the MVR 

was exculpatory, there is no evidence that the State suppressed the MVR where, as 

here, it produced the MVR to defense counsel in due course and it permitted Benson 

to view the MVR in advance of the suppression hearing, which took place more than 

a month before Benson’s trial date.

(13) We also hold that the Superior Court correctly concluded that Benson’s 

claims that the trial court erred in failing to appoint substitute counsel, denying his 

motion to suppress, and denying his motion for a continuance were not raised on 

direct appeal and are therefore procedurally barred under Rule 61(i)(3).14 As a final 

 

12 Somerville v. State, 703 A.2d 629, 632 (Del. 1997).

13 Mack, 2019 WL 7342514, at *2.

14 See Scarborough v. State, 2015 WL 4606519, at *3 (Del. July 30, 2015) (noting that if a 

defendant believes the Superior Court has erred in denying his suppression motion, his 

only option is to go to trial and appeal); Jackson v. State, 2005 WL 528673, at *2 (Del. 
9

matter, the Superior Court did not abuse its discretion when it declined to order 

transcripts at State expense, or when it determined that it need not hold an 

evidentiary hearing on Benson’s motion for postconviction relief. As we previously 

observed, Benson was provided the transcript of his guilty plea in connection with 

his appeal from the Superior Court’s denial of his motion for correction of illegal 

sentence.15 And, because Benson’s claims that the Superior Court erred in denying 

his motion to suppress as well as his last-minute motion for a continuance are 

procedurally barred, the Superior Court did not abuse its discretion in denying his 

motion for the production of the transcripts of the suppression hearing and jury voir 

dire at State expense.

16

 To the extent Benson argues that a hearing was required to 

evaluate the merits of his claim of a Brady violation, as noted above, it is clear from 

the record that no Brady violation occurred.

NOW, THEREFORE, IT IS ORDERED that the motion to affirm is 

GRANTED and the judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ Tamika R. Montgomery-Reeves

Justice

 

Feb. 17, 2005) (upholding the Superior Court’s denial of the defendant’s postconviction 

claim that the trial court erred in denying his motion for a continuance as procedurally 

barred under Rule 61(i)(3)).

15 Benson, 2018 WL 6431748, at *1.

16 See Hubbard v. State, 2006 WL 197128 (Del. Jan. 24, 2006).