IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) 

 ) 

) 

v. ) Case ID No.: 2005003004 

 ) 

) 

CAMERON MCCARY, ) 

 ) 

Defendant. ) 

ORDER 

Submitted: May 24, 2022

Decided: July 20, 2022

Upon Consideration of Defendant’s Motion for Postconviction Relief, 

DENIED.

Erica Flaschner, Deputy Attorney General, Department of Justice, Wilmington, 

Delaware. Attorney for the State. 

Cameron McCary. Pro se. 

MEDINILLA, J. 
2

AND NOW TO WIT, this 20th day of July, 2022, upon consideration of 

Defendant Cameron McCary (“Defendant”)’s Motion for Postconviction Relief, the 

sentence imposed upon Defendant, and the record in this case, it appears to the Court 

that:

Factual and Procedural History

1. In May of 2020, the Delaware State Police began surveillance of the 

Crown Motel on N. Dupont Highway for drug dealing activity.

1

 It was learned that 

Defendant was staying at the motel and was serving Level II probation.2

 The Crown

Motel was not Defendant’s residence listed with the Probation Office.3

 Through 

continued observations of Defendant, the police observed what they believed to be 

drug dealing activities.4

2. Probation officers obtained permission to conduct an Administrative 

Search of Defendant’s motel room, wherein Defendant was present during the 

search.5

 The probation officers recovered multiple illicit drugs, prescription 

medications, drug paraphernalia, $1,715 in cash, and a loaded 9mm handgun.6

3. On August 24, 2020, a grand jury indicted Defendant for six counts of 

Drug Dealing, three counts of Drug Possession, Possession of a Firearm During the 

1 State’s Response, D.I. 56, at 1 [hereinafter State’s First Response].

2 Id. at 2.

3 Id.

4 Id.

5 Id. at 3.

6 Id.
3

Commission of a Felony (“PFDCF”), Possession of a Firearm by a Person Prohibited 

(“PFBPP”), Possession of Ammunition by a Person Prohibited (“PABPP”), and

Possession of Drug Paraphernalia.7

 

4. Defendant filed a Motion to Suppress on October 21, 2020.8

 The

suppression hearing was conducted over the span of several days on May 6, June 2, 

and June 10 of 2021.

9

 The Superior Court reserved decision, eventually denying the 

motion on August 13, 2021.10

5. On August 16, 2021, after an appropriate colloquy, Defendant pled 

guilty to PFDCF and Drug Dealing Heroin Tier 2.

11 The State entered a nolle

prosequi on the remaining charges and agreed to recommend the minimum 

mandatory sentence of three years incarceration. The Court followed the 

recommendation and Defendant was sentenced immediately to a minimum 

mandatory sentence of three years for the PFDCF charge12 and fifteen years at Level 

V, suspended for 18 months at Level III for the Drug Dealing Tier 2 charge.13 

7 Indictment, True Bill Filed. No. 67, D.I. 5.

8 See Motion to Suppress Filed, D.I. 7. A reindictment was filed on April 12, 2021, with 

amendments for plea purposes. See Reindictment - True Bill Filed. No. 79, D.I. 25.

9 See Suppression Hearing Held Before Judge Adams, D.I. 36; Suppression Hearing Held Before 

Judge Adams, D.I. 39.

10 See Motion to Suppress Denied, D.I. 45.

11 See Final Case Review: Defendant Pled Guilty/Sentenced, D.I. 47. 12 See 11 Del. C. § 1447(A)(b) (“A person convicted under subsection (a) of this section shall 

receive a minimum sentence of 3 years at Level V....”).

13 See Sentence: Approved Corrected ASOP Order Signed and Filed, D.I. 49.
4

6. On October 22, 2021, Defendant filed this pro se Motion for 

Postconviction Relief claiming ineffective assistance of counsel.

14 He raises five 

separate claims that relate to his suppression hearing. First, he contends his 

attorney’s failed to argue “illegal arrest.”15 Second, that his attorney failed to make 

a “stalking horse” argument as to the police’s use of probation officers.

16 Third, that 

his attorney failed to compel certain probation officers who conducted the “phone 

conference” to testify at the hearing.17 Fourth, that he “was arrested without 

probable cause which was pursued by an administrative warrant by probation[,]”18

and lastly, that his attorney failed to file a motion for reconsideration/reargument.

19 

7. Defense counsel filed an Affidavit of Response on March 8, 2022.20 A 

second Affidavit was filed on May 23, 2022.21 The State responded on March 14, 

2022,22 and filed a supplemental response on May 24, 2022.23 Defendant did not

file a reply. This matter is now ripe for decision.

14 See Motion for Postconviction Relief, D.I. 52 [hereinafter Rule 61 Motion].

15 Id. at 3.

16 Id.

17 Id. at 4.

18 Id.

19 Id. at 3.

20 See Affidavit of Response, D.I. 55 [hereinafter First Affidavit].

21 See Second Affidavit of Response, D.I. 59 [hereinafter Second Affidavit]. The supplement 

was filed at the direction of the Court.

22 See State’s Response, D.I. 56 [hereinafter State’s First Response].

23 See State’s Response, D.I. 58 [hereinafter State’s Second Response]. The supplement was 

filed at the direction of the Court.
5

Standard of Review

8. To succeed on his ineffective assistance of counsel claims, Defendant 

must demonstrate: (1) “that trial counsel’s performance was objectively 

unreasonable”24 and (2) that if counsel was deficient, that there was a “reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.”25 Mere allegations of ineffectiveness are not enough.26 

Counsel “may not be faulted for reasonable miscalculation or lack of foresight or for 

failing to prepare for what appear to be remote possibilities.”27 There is a strong 

presumption that a defense counsel’s conduct constituted sound trial strategy28 and 

Defendant must make and substantiate concrete allegations that overcome this strong 

presumption that counsel’s conduct fell within a wide range of reasonable 

professional assistance.29 Finally, a reviewing court must “avoid peering through 

the lens of hindsight.”30 

24 Sykes v. State, 147 A.3d 201, 211 (Del. 2015) (citing Strickland v. Washington, 466 U.S. 668, 

694 (1984)).

25 Strickland, 466 U.S. at 694.

26 Younger v. State, 580 A.2d 552, 556 (Del. 1990).

27 State v. Finn, 2012 WL 1980566, at *4 (Del. Super. May 23, 2012) (citing Harrington v. 

Richter, 562 U.S. 86, 102–10 (2011)).

28 Strickland, 466 U.S. at 694.

29 See Salih v. State, 962 A.2d 257, 2008 WL 4762323, at *1 (Del. Oct. 31, 2008) (Table); Albury 

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

30 State v. Wright, 653 A.2d 288, 295 (Del. Super. 1994).
6

Discussion

9. Superior Court Criminal Rule 61 is the exclusive remedy for persons 

“in custody under a sentence of this court seeking to set aside the judgment of 

conviction. . . .”31 This Court “must first consider the procedural requirements of 

Rule 61 before addressing any substantive issues.”32 The procedural “bars” of Rule 

61 are: timeliness,33 repetitiveness,34 procedural default,35 and former adjudication.36 

The contentions in a Rule 61 motion must be considered on a “claim-by-claim” 

basis.37

10. Defendant is not procedurally barred as this is Defendant’s first motion 

for postconviction relief and was timely filed.38 His claims will therefore be 

addressed.

31 Super. Ct. Crim. R. 61(a)(1). See, e.g., Warnick v. State, 158 A.3d 884, 2017 WL 1056130, at 

*1 & n.5 (Del. Mar. 30, 2017) (Table) (citing Miller v. State, 157 A.3d 190, 2017 WL 747758 

(Del. Feb. 24, 2017) (Table)) (denying Rule 35(a) motion attacking sufficiency of evidence in 

indictment to which defendant pleaded guilty; defendant’s “challenge [of] his indictment is outside 

the scope of Rule 35(a)” and was limited to Rule 61).

32 Bradley v. State, 135 A.3d 748, 756–57 (Del. 2016) (citing Younger, 580 A.2d at 554); see also 

Super. Ct. Crim. R. 61(i) (setting forth Rule 61’s procedural bars). 33 Super. Ct. Crim. R. 61(i)(1). See, e.g., Evick v. State, 158 A.3d 878, (2017 WL 1020456, at *1 

(Del. Mar. 15, 2017) (Table) (affirming denial of Rule 61 motion as untimely when filed more 

than two years after conviction became final).

34 Super. Ct. Crim. R. 61(i)(2). See, e.g., Walker v. State, 154 A.3d 1167, 2017 WL 443724, at 

*1–2 (Del. Jan. 17, 2017) (Table) (denying defendant’s third postconviction relief motion as 

repetitive; “Rule 61 provides a limited window for judicial review, especially upon a repetitive 

motion.”).

35 Super. Ct. Crim. R. 61(i)(3). 

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

37 State v. Reyes, 155 A.3d 331, 342 n.15 (Del. 2017) (citations omitted) (“Rule 61 analysis should 

proceed claim-by-claim, as indicated by the language of the rule.”). 

38 See Super. Ct. Crim. R. 61(i)(1).
7

11. Our Supreme Court has repeatedly held that ‘“a voluntary guilty plea 

constitutes a waiver of any alleged errors or defects [that occurred] prior to the entry 

of the plea.”’39 On August 16, 2021, this Court conducted an appropriate colloquy 

and determined Defendant entered into the plea knowingly, intelligently and 

voluntarily, with an acknowledgement that he was satisfied that his attorney had 

done what he could reasonably do for him.40 Accordingly, any defects in the 

suppression hearing or corresponding motions were waived when Defendant 

knowingly, intelligently, and voluntarily pled guilty.41 Even if the Court considered 

the five grounds asserted, Defendant fails to establish a basis for relief.

12. First, as to the allegation that his attorney failed to argue that Defendant 

was illegally arrested, Defendant is incorrect. Counsel did, in fact, argue that 

Defendant was arrested and not just stopped.42 It is clear in Defendant’s Reply to 

his Motion to Suppress that defense counsel argued that Defendant was arrested, not 

stopped, prior to the search of his hotel room, which resulted in an illegal seizure 

39 Campbell v. State, 274 A.3d 286, 2022 WL 678001, at *2 (Del. Mar. 8, 2022) (Table) (quoting 

Benner v. State, 2007 WL 4215005, at *1 (Del. Nov. 30, 2017)); see also Miller v. State, 840 

A.2d 1229, 1232 (Del. 2003) (“Finally, to the extent Miller bases his claims on alleged errors or 

defects preceding the entry of his plea, his voluntary guilty plea constitutes a waiver of any such 

claims.”) (citing Downer v. State, 543 A.2d 309, 312–13 (Del. 1988)). 40 See Final Case Review: Defendant Pled Guilty/Sentenced, D.I. 47 (Plea Colloquy conducted).

41 See Cooper v. State, 954 A.2d 909, 2008 WL 2410404, at *1 (Del. June 16, 2018) (Table)

(declining to consider ineffective assistance of counsel claims raised in movant’s motion for 

postconviction relief because they were “not presented to the Superior Court in the first 

instance.”).

42 See First Affidavit, at 1; State’s First Response, at 4.
8

and the recovered evidence should be suppressed.43 Accordingly, Defendant’s claim 

that his attorney failed to make this argument is patently wrong. 

13. Defendant’s second allegation that counsel was ineffective for failing 

to raise the “stalking horse” argument at the suppression hearing is equally without 

merit. The Court accepts defense counsel’s explanation that the argument was not 

raised because “[he] did not believe this was a viable basis for relief.”44 There is a 

strong presumption that a defense counsel’s strategy is reasonable45 and mere 

allegations of defective representation are insufficient to overcome this 

presumption.46 To second guess such strategies is improper.47 Defendant fails to 

establish how his attorney’s decision fell below an objective standard of 

reasonableness or that such an argument would have resulted in a different 

outcome.48 Therefore, this argument fails. 

14. Defendant’s third assertion is that his attorney was ineffective where he 

failed to file a motion for reargument.49 The Court accepts Defense counsel’s 

explanation that such a motion was not filed because “[he] did not believe that it 

43 See Defendant’s Reply to State’s Response to Defendant’s Motion to Suppress, D.I. 17, at 1–3.

44 First Affidavit, at 2.

45 Strickland, 466 U.S. at 694.

46 See Younger, 580 A.2d at 556. 47 Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every 

effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the 

time.”).

48 See id. at 694.

49 Rule 61 Motion, at 3.
9 

would impact the ruling, or even that it was an appropriate basis for a motion for 

reargument.”50 He is correct. 

15. Under Delaware Superior Court Civil Rule 59(e)51 a motion for 

reargument will be granted if the Court has “overlooked a controlling precedent or 

legal principles, or the court has misapprehended the law or facts such as would have 

changed the outcome of the underlying decision.”52 Further, “[a] motion for 

reargument is not a device for raising new arguments.”53 The moving party has the 

burden of demonstrating “newly discovered evidence, a change of law, or manifest 

injustice.”54 There was no basis for filing a motion for reargument here. Moreover, 

Defendant has failed to establish that had his attorney filed for reargument, the 

Motion to Suppress would have been granted.55 Therefore, this argument fails.

16. Defendant’s fourth claim is that he was arrested without probable cause

and his arrest is therefore illegal.

56 Not only does he fail to articulate the basis of an

ineffective assistance of counsel claim, the record establishes that his counsel did

50 First Affidavit, at 2.

51 Under Super. Ct. Crim. R. 57(d), where no rule is provided “the court shall regulate its practice 

in accordance with the applicable Superior Court civil rule or in any lawful manner not 

inconsistent with these rules or the rules of the Supreme Court.” 

52 See, e.g., Tibco Software Inc., v. Nthrive Revenue Systems, LLC, 2020 WL 86829, at *1 (Del.

Super. Jan. 6, 2020) (quoting Bd. of Managers of Del. Criminal Justice Info. Sys. v. Gannett Co., 

2003 WL 1579170, at *1 (Del. Super. Jan. 17, 2003)). 

53 Bd. of Managers of Del. Criminal Justice Info. Sys., 2003 WL 1579170, at *1.

54 E.I. du Pont de Nemours & Co. v. Admiral Ins. Co., 711 A.2d 45, 55 (Del. Super. 1995). 55 See Strickland, 466 U.S. at 694. 

56 Rule 61 Motion, at 4. 
10

raise this issue at the suppression hearing.

57 The issue of lack of probable cause was 

raised in both the Motion to Suppress58 and the Reply.59 This argument was formerly 

adjudicated and is thus barred.

60 

17. Lastly, Defendant claims his attorney was ineffective where he failed 

to compel the appearance of “the actual probation officers who conducted the phone 

conference” [procedurally required for their administrative searches]61 and that these 

“officers were required to testify.”62 He is wrong.

18. This Court agrees with both defense counsel and the State that there is 

no such requirement under Probation and Parole Procedure 7.19. Moreover, this 

Court accepts defense counsel’s explanation that he was aware the officer was not 

going to be present at the suppression hearing and “made a strategic decision to not 

subpoena him . . . because [he] believed it would be harmful to [Defendant’s] 

argument . . . by providing the State an opportunity to ‘explain’ inconsistencies . . . 

.”63 As noted above, there is a strong presumption that a defense counsel’s strategy 

is reasonable64 and mere allegations of defective representation are insufficient to 

57 See Second Affidavit, at 1; State’s Second Response, at 2.

58 See Motion to Suppress, D.I. 7, at 4–8. 59 See generally Defendant’s Reply to State’s Response to Defendant’s Motion to Suppress, D.I. 

17.

60 See Super. Ct. Crim. R. 61(i)(4). 

61 See Probation and Parole Procedure, 7.19.

62 Rule 61 Motion, at 4.

63 Second Affidavit, at 2.

64 Strickland, 466 U.S. at 694.
11 

overcome this presumption.65 Defendant has also failed to establish that such a 

decision was unreasonable or that the outcome would have been different had the 

officer testified at the suppression hearing.66 Therefore, this claim fails.

Conclusion

19. For the foregoing reasons, the Court finds that Defendant fails to meet 

his burden to demonstrate objective unreasonableness and prejudice as required 

under Strickland. Defendant’s Motion for Postconviction Relief is DENIED. 

/s/ Vivian L. Medinilla

 Vivian L. Medinilla

 Judge

oc: Prothonotary

cc: Defendant 

Elliot M. Margules, Esquire

65 See Younger, 580 A.2d at 556. 

66 See Strickland, 466 U.S. at 694.