IN THE SUPREME COURT OF THE STATE OF DELAWARE

BROOKS CORNISH, §

§ No. 301, 2014

Defendant Below, §

Appellant, § Court Below: 

§

v. § Superior Court of the

§ State of Delaware, in and for

STATE OF DELAWARE, § Sussex County

§ 

Plaintiff Below, § Cr. I.D. No. 0703024261

Appellee. §

Submitted: January 21, 2015

Decided: January 26, 2015

Before HOLLAND, RIDGELY, and VALIHURA, Justices. 

O R D E R

This 26th day of January 2015, upon consideration of the briefs of the parties 

and the record below, it appears to the Court that: 

(1) Defendant-below/Appellant Brooks Cornish (“Cornish”) argues that 

the Superior Court erred for two reasons when it denied his motion to modify his 

sentence. First, he argues that evidence presented against him at the violation of 

probation hearing (“VOP Hearing”) violated his constitutional rights, prejudiced 

his defense and ultimately affected his sentencing. Second, he argues that the court 

considered testimony containing discrepancies and unreliable evidence in light of 

misconduct discovered at the Office of the Chief Medical Examiner (the 

“OCME”). We disagree with both of Cornish’s claims and affirm.
2

(2) In December 2007, Cornish pled guilty to Robbery First Degree, 

Assault Second Degree, Theft of a Firearm, Conspiracy Second Degree, and 

Assault Third Degree. Cornish was sentenced to a total of twenty-nine years at

Level V incarceration, suspended after four years with successful completion of a 

residential substance abuse treatment program, followed by three years of Level III 

probation. After completing his Level V incarceration sentence and the substance 

abuse treatment program, Cornish was released to Level III probation on May 16,

2011.

(3) On March 25, 2012, Cornish was arrested and charged with 

Possession of Marijuana and Resisting Arrest. Cornish pled guilty to Resisting 

Arrest and the State entered a nolle prosequi on the Possession of Marijuana. On 

July 13, 2012, because Cornish had violated his probation, the Superior Court 

sentenced him to a total of eighteen years at Level V incarceration, suspended for 

three years of Level III probation.1

(4) On February 18, 2013, Cornish was arrested and charged with Drug 

Dealing after selling heroin to an undercover detective on January 23, 2013. The 

probation office filed a violation of probation against Cornish for Failure to Abide 

by Curfew, Possession of a Controlled Substance and committing a new crime. 

 

1 On January 10, 2013, Cornish was arrested and charged with Possession of Marijuana with an 

Aggravating Factor. The State entered a nolle prosequi to this charge on March 4, 2013.
3

Cornish failed to appear at the VOP Hearing, and a warrant was issued for his 

arrest.

(5) Cornish was arrested on November 12, 2013. In the meantime, 

Cornish had been charged with additional offenses for Disregarding a Police 

Officer’s Signal, Endangering the Welfare of a Child, Resisting Arrest, and 

Vehicular Assault Third Degree. Cornish pled guilty to Resisting Arrest, and was 

sentenced to one year of Level V incarceration, suspended for one year of Level II 

probation.

(6) On December 20, 2013, the probation office filed a new violation 

report against Cornish. The State alleged, inter alia, that Cornish failed to update 

his residency, violated his no-contact order, failed to pay in accordance with a 

payment plan, violated his curfew, and violated the zero tolerance for drugs 

provision of his 2012 VOP Sentence Order. 

(7) The VOP Hearing was held on February 4, 2014. At the time of the

hearing, the heroin drug dealing charge was still pending in the Superior Court. 

During the hearing, the trial court considered the testimony of Detective Dallas 

Reynolds who testified that he purchased heroin from Cornish.2 The court also 

considered information provided by Probation Officer Glenn, who informed the 

court that Cornish had violated the terms of his probation. After conducting the 

 

2

The court found by a preponderance of the evidence that Cornish could be found guilty of 

dealing heroin.
4

VOP Hearing, the trial court sentenced Cornish to a total of seventeen years and 

ten months at Level V incarceration, suspended after six years for one year of 

Level IV work release, followed by eighteen months of Level III probation.3

(8) On March 18, 2014, the State informed Cornish that an investigation

at the OCME revealed that certain drug evidence had been compromised. But the 

State also noted that it had “no information to believe that drug evidence related to 

[Cornish] ha[d] been tampered with at this time.” Regardless, the State entered a 

nolle proseui on the Drug Dealing charge against Cornish. Cornish then filed a 

motion to reduce his sentence pursuant to Superior Court Rule 35(b). The Superior 

Court denied Cornish’s motion.

(9) We review alleged infringements of constitutional rights de novo.

4

 

Cornish argues that the State suppressed evidence in violation of Brady v. 

Maryland5regarding the OCME investigation concerning compromised evidence. 

Cornish argues that the evidence concerning the OCME investigation was 

favorable to him because it was impeaching. To convict him of Drug Dealing, 

Cornish contends that the State had to offer evidence that the substance sold was 

heroin and that there were no material gaps in the chain of custody. Cornish 

argues that the suppression prejudiced his ability to cross-examine and challenge 

 

3 Cornish did not appeal the trial court’s findings or sentence.

4 Moore v. State, 15 A.3d 1240, 1244 (Del. 2011) (citing Harris v. State, 956 A.2d 1273, 1275 

(Del. 2008)). 

5

373 U.S. 83 (1963). 
5

the drug evidence that formed a basis for his sentence. The State responds that 

Cornish’s argument is waived since Cornish did not argue at the trial court below 

that there had been a Brady violation.

(10) Cornish learned of the OCME investigation from a letter dated March 

18, 2014.6 This letter was sent more than thirty days after the February 2, 2014,

VOP Hearing. Accordingly, Cornish was not aware of the OCME investigation at 

the time of the hearing. Further, he could not have filed a direct appeal because the 

time to challenge the ruling at the VOP Hearing had expired. But in his motion to 

modify his sentence Cornish did challenge the decision against him on the grounds 

that he did not have a fair opportunity to defend against the violation of probation 

claims because the State did not inform him of the OCME investigation and the 

potential for compromised evidence. Accordingly, we find that Cornish did not 

waive this argument, insofar as it applies to the motion to modify his sentence.

(11) A Brady violation consists of three elements: “(1) evidence exists that 

is favorable to the accused, because it is either exculpatory or impeaching; (2) that 

 

6

In February 2014, the Delaware State Police and the Department of Justice began an 

investigation into criminal misconduct occurring in the Controlled Substances Unit of the 

OCME. As we observed in Brown v. State, No. 178, 2014 (Del. Jan. 23, 2015), the investigation 

revealed that some drug evidence sent to the OCME for testing had been stolen by OCME 

employees in some cases and was unaccounted for in other cases. Oversight of the lab had been 

lacking, and security procedures had not been followed. Although the investigation remains 

ongoing, to date, three OCME employees have been suspended (two of those employees have 

been criminally indicted), and the Chief Medical Examiner has been fired. “There is no evidence 

to suggest that OCME employees tampered with drug evidence by adding known controlled 

substances to the evidence they received for testing in order to achieve positive results and 

secure convictions.” Id. at *8.
6

evidence is suppressed by the State; and (3) its suppression prejudices the 

defendant.”

7

 The State’s failure to disclose exculpatory of evidence does not alone 

constitute a Brady violation.8 “The State must release evidence only when ‘there is 

a reasonable probability that, had the evidence been disclosed to the defense, the 

result of the proceeding would have been different.’”9

(12) Cornish’s reliance on Brady is misplaced for two reasons. First, there 

was no indication that the evidence used against Cornish was compromised. In 

fact, the letter sent to Cornish specifically indicated that the State had no 

information to believe that drug evidence related to Cornish had been 

compromised. Second, the VOP Hearing was not a proceeding to convict Cornish 

for Drug Dealing.10 At the hearing, the court was concerned only with the question 

of whether Cornish violated the terms of his probation. A Brady violation is 

substantiated when there is a reasonable probability that the result would be 

different if the evidence had been disclosed.11 Nothing suggests that had the trial 

court been aware of the investigation of the OCME and the discovery of 

 

7

Starling v. State, 882 A.2d 747, 756 (Del. 2005) (citing Strickler v. Greene, 527 U.S. 263, 281-

82 (1999)). 

8

See id.

9

Id. (citing Jackson v. State, 770 A.2d 506, 516 (Del. 2001)); see also U.S. v. Bagley, 473 U.S. 

667, 682 (1985) (considering the “. . . reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable 

probability’ is a probability sufficient to undermine confidence in the outcome.”).

10 The trial court stated, “I find by a preponderance of the evidence that Mr. Cornish is guilty of 

delivery of heroin or certainly could be found guilty of that offense. That’s not the point of this 

hearing, but there’s enough evidence to make that finding.”

11 See Starling, 882 A.2d at 756. 
7

impropriety, the outcome would have been different -- especially since there was 

no information to suggest that any of the compromised evidence involved 

Cornish’s case. Accordingly, Cornish’s first claim is without merit.

(13) As to Cornish’s second claim, we review a trial court’s decision to 

deny a motion for modification of a sentence for an abuse of discretion.12 Cornish

argues that trial court abused its discretion when it denied his request to modify his 

sentence in light of inconsistencies surrounding the testimony of the detective 

involved with the undercover drug purchase.

13 Cornish also contends that the trial 

court imposed a sentence that exceeded the guidelines in the Delaware Sentencing 

Accountability Commission Benchbook.14 The State responds that the trial court 

did not abuse its discretion in denying Cornish’s motion to modify sentence 

because the trial court took into account appropriate evidence, and sentenced 

Cornish within the statutory guidelines.

 

12 State v. Lewis, 797 A.2d 1198, 1202 (Del. 2002) (“The test is not whether the reviewing court 

would have ruled otherwise but whether the trial court acted within a zone of reasonableness or 

stayed within ‘a range of choice.’” (citing Kern v. TXO Production Corp., 738 F.2d 968, 969 (8th 

Cir. 1984)).

13 Detective Reynolds testified that he placed a call to a phone number that he could not confirm 

was linked to Cornish. He indicated that the person he purchased heroin from had black hair, but 

in his report, he indicated that the individual had brown hair. There was no audio or video 

recording of the surveillance during the meeting. The serial numbers of the money that 

Detective Reynolds exchanged were recorded, but Cornish was never found in possession of that 

money. Further, Detective Reynolds indicated that the bags containing the heroin were stamped 

“BET,” consistent with the evidence sheet. But in his police report, Detective Reynolds 

indicates that the bags were stamped “WMD.”

14 Cornish argues that he was found in violation of probation related to his Robbery First Degree 

sentence and was sentenced to serve six years of Level V incarceration for that offense. The 

SENTAC guidelines call for a sentence of 2-5 years of Level V incarceration for that offense.
8

(14) Cornish made a motion for a reduction of his sentence pursuant to 

Superior Court Criminal Rule 35(b).15 Rule 35(b) gives a sentencing judge 

“considerable discretion over the appropriate grounds for a reduction of 

sentence.”

16

(15) “[I]n reviewing a sentence within statutory limits, this Court will not 

find error of law or abuse of discretion unless it is clear from the record below that 

a sentence has been imposed on the basis of demonstrably false information or 

information lacking a minimal indicium of reliability.”

17 The record below shows 

that Detective Reynolds’ testimony met the standard of “minimal indicium of 

reliability” since he testified to arranging a call to purchase heroin from Cornish, 

he identified Cornish in court, the substance sold to him was field tested as heroin,

and Cornish admitted after his arrest that he had sold heroin in the past. Because 

Detective Reynolds’ testimony was substantiated as being more than mere 

 

15 DEL. SUPER. CT. CRIM. R. 35(b) provides that: 

The court may reduce a sentence of imprisonment on a motion made within 90 

days after the sentence is imposed. This period shall not be interrupted or 

extended by an appeal, except that a motion may be made within 90 days of the 

imposition of sentence after remand for a new trial or for resentencing. The court 

may decide the motion or defer decision while an appeal is pending. The court 

will consider an application made more than 90 days after the imposition of 

sentence only in extraordinary circumstances or pursuant to 11 Del. C. § 4217. 

The court will not consider repetitive requests for reduction of sentence. The 

court may suspend the costs or fine, or reduce the fine or term or conditions of 

partial confinement or probation, at any time. A motion for reduction of sentence 

will be considered without presentation, hearing or argument unless otherwise 

ordered by the court.

16 Lewis, 797 A.2d at 1201. 

17 Mayes v. State, 604 A.2d 839, 843 (Del. 1991).
9

allegations, the trial court did not abuse its discretion when it considered the drug 

dealing charge in determining Cornish’s sentence.18

(16) Further, the trial court did not abuse its discretion when it sentenced 

Cornish to six years of Level V incarceration for his probation violations. Once a 

defendant violates his probation, the Superior Court has the authority to make the 

defendant serve the sentence originally imposed or any lesser sentence.19 Cornish 

had eighteen years of Level V incarceration time remaining on his sentence that the 

Court could have reinstated against him. As a result, the sentence the trial court

imposed was appropriate. Accordingly, Cornish’s second claim is also without 

merit.

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

Superior Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura

Justice

 

18 Mayes, 604 A.2d at 843 (“Our task, therefore, is to review the disputed information contained 

in the presentence report upon which the court relied and determine whether this information met 

the test of some minimal indicium of reliability beyond mere allegation.” (citations omitted)). 

19 See State v. Sloman, 886 A.2d 1257, 1260 (Del. 2005) (citing 11 Del. C. § 4334(c)).