IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

)

v. ) I.D. Nos. 1802004304 

) 1802005743

KIAYRE BRAXTON, ) 1802005994

)

Defendant. )

Submitted: August 13, 2021

Decided: September 28, 2021

Corrected: September 29, 2021 

(Spelling of Defendant’s name only)

Upon Defendant’s Motion for Postconviction Relief,

DENIED.

Upon Postconviction Relief Counsel’s Motion to Withdraw,

GRANTED.

ORDER

Maria T. Knoll, Esquire, Deputy Attorney General, Department of Justice, 820 

North French Street, Wilmington, DE 19801, Attorney for the State.

Rhonda Pantellas Lowe, Esquire, 3553 West Chester Pike #126, Newtown Square, 

PA 19073; Jan A. T. van Amerongen, Esquire, Office of Conflicts Counsel, 900 

King Street, Suite 320, Wilmington, DE 19801, Attorneys for Defendant Kiayre 

Braxton.

WHARTON, J.
2

This 28th day of September, 2021, upon consideration of Defendant Kiayre 

Braxton’s (“Braxton”) timely pro se Motion for Postconviction Relief (“MPCR”), 

appointed postconviction counsel’s (“PCR counsel”) Motion to Withdraw as 

Counsel, the State’s Response to Counsel’s Motion to Withdraw, and the record in 

this matter, it appears to the Court that:

1. Braxton pled guilty on February 11, 2019 to five charges – conspiracy 

to commit racketeering, drug dealing in heroin, and three counts of possession of a 

firearm during the commission of a felony (“PFDCF”) involving three different 

handguns. The plea agreement contemplated an agreed upon sentence of 49.5 years 

at level 5, suspended after 26.5 years at level 5 for 23 years at level 4, suspended 

after 6 months at level 4 for 2 years at level 3 probation. All 26.5 years at level 5, 

including 12.5 years as a habitual offender on one of the PFDCF charges represented 

minimum mandatory sentences. The Court imposed the agreed upon recommended 

sentences the same day. Braxton did not appeal his convictions and sentences. 

2. Braxton filed this timely first MPCR pursuant to Superior Court 

Criminal Rule 61 pro se on February 10, 2020,

1

accompanied by a motion for 

appointment of counsel.

2

 The Court granted the request for appointment of counsel 

1 D.I. 45. 

2 D.I. 45C.
3

on February 14, 2020.3 On January 5, 2021, postconviction counsel was confirmed4 

On May 10, 2021, postconviction counsel moved to withdraw after she reviewed the 

record and the applicable law, and concluded that none of Braxton’s postconviction 

claims “have enough merit to be ethically advocated, and that there are no other 

potential meritorious grounds for relief that can be raised on behalf of Mr. Braxton.”5 

Braxton did not submit any points he wished the Court to consider. The State 

submitted its response on August 13, 2021.6 

3. In his MPCR, Braxton presses four claims of ineffective assistance of 

counsel (“IAC”).

7

 First, he alleges trial counsel was ineffective by failing to “pursue 

best defense because of a conflict.”8 Second, he alleges trial counsel was ineffective 

because she “coerced and scared me into taking a guilty plea.”9 Third, Braxton 

alleges that counsel would not ask for evidentiary or suppression hearings and told 

him he was going to be convicted at trial and be sentenced to “triple digits.”10 His 

last IAC claim alleges that trial counsel was from out of state and was not fully 

familiar with Delaware law.11 

3 D.I. 52.

4 D.I. 57.

5 D.I. 58.

6 D.I. 62.

7 D.I. 45.

8

Id.

9

Id.

10 Id.

11 Id.
4

4. PCR counsel addresses all of Braxton’s claims in her motion to 

withdraw. With respect to Braxton’s first claim that a conflict prevented trial 

counsel from properly defending him, PCR counsel points to the absence of any 

evidence of a conflict in the record, resulting in this claim being a mere allegation 

of ineffectiveness unsupported by concrete allegations of actual prejudice.12 As to 

the second claim that trial counsel coerced and scared him into pleading guilty, PCR 

counsel refers to the transcript of the guilty plea hearing, noting the absence of any 

evidentiary support for this claim.13 PCR counsel points out that the record of 

Braxton’s plea colloquy with the Court refutes Braxton’s claim that his plea was 

involuntary or that he was threatened.14 According to PCR counsel Braxton’s third 

claim that trial counsel failed to seek evidentiary or suppression hearings is belied 

by the record, which reflects that trial counsel did move to suppress evidence from 

a search and certain statements.15 Finally, PCR counsel states that Braxton’s claim 

that trial counsel lacked knowledge of Delaware law is unsupported by anything in 

the record.16 For its part, the State argues that Braxton’s four IAC claims fail both 

prongs of Strickland v. Washington.

17 It agrees with PCR counsel’s evaluation of 

Braxton’s IAC claims.

12 D.I. 58 at 7.

13 Id. at 7-9.

14 Id. at 8,9.

15 Id. at 9, 10.

15 Id at 10.

17 466 U.S. 668 (1984).
5

5. Before addressing the merits of a defendant’s motion for postconviction 

relief, the Court must first apply the procedural bars of Superior Court Criminal Rule 

61(i).18 If a procedural bar exists, then the Court will not consider the merits of the 

postconviction claim.19 Under Delaware Superior Court Rules of Criminal 

Procedure, a motion for postconviction relief can be barred for time limitations, 

repetitive motions, procedural defaults, and former adjudications. A motion exceeds 

time limitations if it is filed more than one year after the conviction becomes final 

or if it asserts a newly recognized, retroactively applied right more than one year 

after it was first recognized.20 A second or subsequent motion is repetitive and 

therefore barred.21 The Court considers a repetitive motion only if the movant was 

convicted at trial and the motion pleads with particularity either: (1) actual 

innocence;22 or (2) the application of a newly recognized, retroactively applied rule 

of constitutional law rendering the conviction invalid.23 Grounds for relief “not 

asserted in the proceedings leading to the judgment of conviction” are barred as 

procedurally defaulted unless the movant can show “cause for relief” and “prejudice 

from [the] violation.”24 Grounds for relief formerly adjudicated in the case, 

including “proceedings leading to the judgment of conviction, in an appeal, in a post18 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

19 Id.

20 Super. Ct. Crim. R. 61(i)(1).

21 Super. Ct. Crim. R. 61(i)(2).

22 Super. Ct. Crim. R. 61(d)(2)(i).

23 Super. Ct. Crim. R. 61(d)(2)(ii).

24 Super. Ct. Crim. R. 61(i)(3).
6

conviction proceeding, or in a federal habeas corpus hearing” are barred.25 Here, the 

MPCR constitutes a timely first motion for postconviction relief alleging IAC.

6. To successfully bring an ineffective assistance of counsel claim, a 

claimant must demonstrate: (1) that counsel’s performance was deficient; and (2) that 

the deficiencies prejudiced the claimant by depriving him or her of a fair trial with 

reliable results.26 To prove counsel’s deficiency, a defendant must show that 

counsel’s representation fell below an objective standard of reasonableness.27 

Moreover, a defendant must make concrete allegations of actual prejudice and 

substantiate them or risk summary dismissal.28 “[A] court must indulge in a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.”29 A successful Sixth Amendment claim of ineffective 

assistance of counsel requires a showing “that there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have been 

different.”30 When addressing the prejudice prong of the ineffective assistance of 

counsel test in the context of a challenged guilty plea, an inmate must show “that there 

is a reasonable probability that, but for counsel’s errors, he would not have pleaded 

25 Super. Ct. Crim. R. 61(i)(4).

26 Strickland v. Washington, 466 U.S. 668, 688 (1984).

27 Id. at 667-68.

28 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

29 Strickland, 446 U.S. at 689.

30 Id. at 694.
7

guilty and would have insisted on going to trial.”31 An inmate must satisfy the proof 

requirements of both prongs to succeed on an ineffective assistance of counsel claim. 

Failure to do so on either prong will doom the claim and the Court need not address 

the other.32 Braxton cannot demonstrate that counsel’s performance was deficient or 

that he would have insisted on going to trial.

7. The Court turns to the IAC claims Braxton raised in his pro se MPCR. 

In all four of them, Braxton has failed to meet both the performance and prejudice 

prongs of Strickland. The first of those claims is that trial counsel failed to properly 

represent him because she was conflicted. It is fatal to this claim that Braxton does 

not identify how trial counsel was allegedly conflicted. Mere unsubstantiated 

allegations of ineffectiveness that are entirely conclusory and are not supported by 

concrete allegations of prejudice are legally insufficient to support an IAC claim.33 

8. Braxton’s second claim is that trial counsel coerced and scared him into 

pleading guilty. This claim is conclusory as well, since Braxton alleges nothing 

more than trial counsel provided him with her professional assessment of the likely 

outcome of a trial and resulting sentence. While that assessment was dire and the 

likely sentence frightening to him, that fear was the result of the circumstances in 

31 Albury v. State, 551 A.2d 53, 59 (Del. 1988) (citing Hill v. Lockhart, 474 U.S. 

52, 58 (1985)); Sartin v. State, 2014 WL 5392047, at *2 (Del.); State v. Hackett, 

2005 WL 30609076, at *3 (Del. Super. Ct.). 

32 Strickland, 466 U.S. at 697; Ploof v. State, 75 A.3d 811, 825 (Del. 2013) 

(“Strickland is a two-pronged test, and there is no need to examine whether an 

attorney performed deficiently if the deficiency did not prejudice the defendant.”). 

33 Younger, supra, at 556.
8

which he put himself, not unprofessional behavior by trial counsel. But beyond that, 

the record of the guilty plea hearing demonstrates its speciousness conclusively. 

During the plea colloquy with the Court, Braxton stated that he understood the 

charges against him, that he freely and voluntarily decided to plead guilty to the 

charges listed in the plea agreement, that he was satisfied with counsel’s 

representation of him, that he understood the trial rights he was waiving and the 

potential punishment he was facing, and that no one, including trial counsel, was 

forcing or threatening him to enter the guilty pleas.34 Additionally, during the plea 

colloquy, Braxton affirmed that the above answers he provided both on the Truth in 

Sentencing Guilty Plea form and to the Court were truthful.35 Finally, before 

pleading guilty to each charge, Braxton admitted that he committed each of the 

charges to which he was pleading guilty.36 Braxton has not demonstrated any 

evidence to the contrary, much less clear and convincing evidence, and, thus, is 

bound by the representations he made when he entered his guilty pleas.37 Again, 

Braxton has failed to establish either Strickland’s prejudice or performance prong.

9. Braxton’s third IAC claim is that trial counsel refused to request a 

suppression or evidentiary hearing. Braxton is wrong. The record reflects that prior 

to trial counsel being appointed, Braxton was represented by an Assistant Public 

34 Tr. Plea Colloquy, Feb. 11, 2019, at 5-16, D.I. 56.

35 Id. at 15-16.

36 Id. at 16-20.

37 Bradley v. State, 2007 WL 1599991, at *1 (Del. June 5, 2007).
9

Defender, who filed numerous motions, including a motion to disclose identity of 

witness,38 a motion for relief from prejudicial joinder,39 and an unsuccessful motion 

to file a suppression motion out of time.40 Trial counsel was appointed due to a 

conflict with the Office of the Public Defender on September 28, 2018,41 and 

admitted pro hac vice on October 10, 2018.42 Trial counsel filed an omnibus motion 

to suppress under seal on January 16, 2019.

43 Furthermore, Braxton waived any 

claim that trial counsel was ineffective for failing to pursue suppression or 

evidentiary hearings when he entered his guilty pleas.44 

10. Braxton’s final IAC claim is that trial counsel did not know Delaware 

law “to the fullest.” He offers no support for this claim, and so it fails. 

THEREFORE, the Braxton’s pro se Motion for Postconviction Relief is

DENIED.

 Postconviction relief counsel’s Motion to Withdraw as Counsel is

GRANTED. 

 IT IS SO ORDERED.

 /s/ Ferris W. Wharton

 Ferris W. Wharton, J.

38 D.I. 9.

39 D.I. 14.

40 D.I. 24

41 D.I. 27.

42 D.I. 33.

43 D.I. 39.

44 Day v. State, 2011 WL 3617797 at *2 (Del. Aug. 11, 2011).