IN THE SUPREME COURT OF THE STATE OF DELAWARE

WILLIAM BURTON, § § No. 287, 2018 Defendant-Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID. No. 1301022871(N) STATE OF DELAWARE, § § Plaintiff-Below, § Appellee. § Submitted: December 12, 2018 Decided: December 26, 2018 Before STRINE , Chief Justice, VALIHURA , and SEITZ , Justices. ORDER This 26 th day of December, 2018, having consid ered the briefs and the record below, it appears to the Court that: (1) After a Superior Court bench trial, the trial judge found William Burton guilty of drug dealing, aggravated posse ssion of cocaine, two counts of illegal possession of marijuana, and possession of drug paraphernalia. While his direct appeal was pending, evidence irregular ities were found in an unrelated case involving testimony from the Office of Ch ief Medical Examiner (“OCME”). The Public Defender’s office filed a motion for postconviction relie f on behalf of a number of defendants, including Burton, based on the OCME misconduct. The2 Superior Court denied the motion as to Bu rton without reaching the merits to allow Burton to pursue the motion on his own. 1 We stayed Burton’s direct appeal and remanded to allow Burton to file motions in his case to supplement the record and for a new trial in light of the OCME ev idence irregularities. The Superior Court denied Burton’s motions, and th is Court affirmed on appeal. 2 (2) Burton filed a motion for postconvic tion relief in August 2016. The court appointed counsel, w ho filed an amended motion. In the amended motion, Burton alleged that the State violated Brady v. Maryland 3 by withholding evidence related to the OCME misconduct. He al so claimed that his trial counsel was ineffective under Strickland v. Washington 4 for agreeing to stipulate to the State’s trial evidence without his consent. The S uperior Court found that Burton’s claims were not procedurally barred under Rule 61 and denied both claims on the merits. 5 Burton has appealed from this decision. (3) We review the Superior Court’s decision to deny postconviction relief for abuse of discretion. 6 We review questions of la w or constitutional violations de

novo . 7 Before addressing the merits, Burton must meet the procedural requirements

1 App. to Opening Br. at A522-23 (Letter from Judge Carpenter on pro se Motion). 2 Burton v. State , 2016 WL 3381847 (Del. June 8, 2016). 3 373 U.S. 83 (1963). 4 466 U.S. 668 (1984). 5 State v. Burton , 2018 WL 2077325 (Del. Super. Apr. 30, 2018). 6 Dawson v. State , 673 A.2d 1186, 1190 (Del. 1996). 7 Id

.3 of Superior Court Criminal Rule 61.” 8 The Superior Court must apply the version of Rule 61 in effect at the time th e motion for postconvic tion relief was filed. 9 (4) For the Brady claim the Superior Court im plicitly decided that Burton’s claim was formerly adjudicated in Burton’s earlier motion and thus barred under Rule 61(i)(4). 10 But the court applied the “misca rriage of justice” exception under Rule 61(i)(5) to reach th e merits of his claim. 11 Unfortunately, the Superior Court applied the incorrect version of Rule 61 when reviewing Burton’s motion. Burton filed his motion for postconviction relief on August 11, 2016. Thus, the June 1, 2015 version of Rule 61 applied. Under that, and subsequent, versions of the rule there is no longer a miscarriag e of justice exception. 12 The June 1, 2015 version’s only exceptions to Rule 61(i)(4) are if the movant “pleads with particularity that new evidence exists that creates a strong infere nce that the movant is actually innocent” or “claim[s] that a new rule of constitutional law, made retroactive to cases on collateral review by the United States S upreme Court or the Delaware Supreme

8 Younger v. State , 580 A.2d 552, 554 (Del. 1990). 9 Redden v. State , 150 A.3d 768, 778 (Del. 2016). 10 The Superior Court failed to make a definitive st atement that the issue was formerly adjudicated but framed the discussion under Burton’s argument that the issue “should not be barred procedurally under Rule 61(i)(4).” The court then went on to cite the superseded “miscarriage of justice” exception before analyzing the merits. Burton , 2018 WL 2077325, at *2. 11 The Superior Court also referenced the “inter est of justice” exception, but this exception was removed in 2014. Coles v. State , 2017 WL 3259697, at *2 (Del. Jul. 31, 2017) (interest of justice exception no longer applicable afte r 2014 amendments to Rule 61). 12 State v. Sturgis , 2018 WL 6046759, at *3 (Del. Super. Nov. 19, 2018) (finding that the miscarriage of justice excep tion no longer applies under the new version of Rule 61).4 Court, applies to the mova nt's case and renders the c onviction or death sentence invalid.” (5) When the correct version of Rule 61 is applied, Burton’s Brady claim is barred. Burton has already raised his Brady claim in his November 2015 motion for a new trial. 13 Thus, the claim is formerly ad judicated. Burton correctly points out that some additional information about the OCME misconduct has come to light since then, and there were minor weight di screpancies in the substances seized from him. But, the additional information does not provide “a strong inference” of Burton’s “actual[] innocen[ce]” as the new rule requires. 14 Simply alleging general problems at the OCME or slight weight di fferences is insufficient to imply actual innocence in Burton’s case, especially when Burton has not claimed actual innocence. Further, Burton has not directly alleged that the substances collected during the investigation of his criminal activity were not illegal drugs. Thus,
Burton’s Brady claim is barred by Rule 61. (6) Burton’s Strickland claim is not barred by Rule 61. 15 A Strickland ineffective assistance of counsel claim requ ires that the movant show “a reasonable

13 App. to Opening Br. at A327-33 (Order Denying Motion for New Trial). 14 Super. Ct. Crim. R. 61(d)(2)(i) (2016). 15 Timely ineffective assistance of counsel claims cannot be rais ed on direct appeal, and must instead be argued in a postconviction motion. Watson v. State , 80 A.3d 961 2013 WL 5745708 at *2 (Del. 2013) (TABLE) (“this Cour t will not consider a claim of ineffective assistance that is raised for the first time in a direct appeal.”).5 probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” 16 If Burton cannot show prejudice by counsel’s alleged errors, we need not deci de if “counsel’s representation fell below an objective standard of reasonableness.” 17 Here, Burton has a lleged that his trial counsel was ineffective for stipulating to the State’s drug evidence, but, as the Superior Court correctly d ecided, he cannot show pr ejudice by counsel’s alleged errors. As the Superior Court held, it is unlikely trial counsel would have achieved anything by contesting the drug evidence. Burton knowingly, intelligently, and voluntarily agreed to stipul ate to the State’s drug eviden ce. The evidence of Burton’s guilt was also overwhelming. Burton confe ssed to flushing cocaine down the toilet, and the drugs were seized from his room while he was present. 18 Thus, Burton’s Strickland claim fails.

16 Strickland , 466 U.S. at 694 (1984). 17 Id. Purnell v. State, 106 A.3d 337, 342 (Del. 2014) (“In particular , a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”) (quoting Strickland , 466 U.S. at 697); Ploof v. State , 75 A.3d 811, 828 (Del. 2013) (declining to examine the first prong where prejudice is not established). 18 App. to Opening Br. at A60 (Tr. of Detectiv e Leary Testimony) (describing the substances found); App. to Answering Br. at B1 (Arrest/Incid ent Report) (“[Burton] then freely admitted he had ‘flushed all his cocaine’”).6 NOW, THEREFORE, IT IS HEREBY OR DERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT: /s/ Collins J. Seitz, Jr. Justice