           IN THE SUPREME COURT OF THE STATE OF DELAWARE


ANTHONY NASTATOS,                      §
                                       §    No. 217, 2019
      Defendant Below,                 §
      Appellant,                       §
                                       §    Court Below: Superior Court
      v.                               §    of the State of Delaware
                                       §
STATE OF DELAWARE,                     §
                                       §    Cr. ID No. 1102018112 (N)
      Plaintiff Below,                 §
      Appellee.                        §

                          Submitted: November 6, 2019
                          Decided:   December 20, 2019

Before SEITZ, Chief Justice; VALIHURA, and VAUGHN, Justices.

                                       ORDER

      This 20th day of December, 2019, having considered the briefs and the record

below, it appears to the Court that:

      (1)    Anthony Nastatos met Alexandra Koval in 2009. Over the following

years, Nastatos sought to express his affection for Koval and repeatedly messaged

Koval despite her wish for him to stop. Even after two no-contact orders and while

incarcerated, Nastatos continued to write to Koval. The State brought charges, and

the evidence at trial against Nastatos was overwhelming. The jury convicted him of

Harassment, three felony counts of Breach of Conditions of Bond During

Commitment, and sixteen counts of Non–Compliance with Bond Conditions. The
judge sentenced him to thirty-two years, suspended after sixteen years. Nastatos

appealed the sentence, which this Court affirmed in 2014. 1 Nastatos sought

postconviction relief, which the Superior Court denied after an evidentiary hearing.

Nastatos appeals the denial of every claim in his postconviction relief motion. For

the reasons set forth below, we affirm.

         (2)    Nastatos and Koval met at work in August 2009 and developed a

friendly relationship.2 Soon after they met, Nastatos anonymously covered Koval’s

car with flower petals. He later admitted to the act and told her he had romantic

feelings for her. Koval told Nastatos she did not have romantic feelings for him. A

few days later, they went shopping together, had dinner at a restaurant, and met

another co-worker for drinks.             Nastatos’ behavior that night made Koval

uncomfortable. Koval’s discomfort forced her to cancel other plans they had made

together. After that, she avoided Nastatos.

         (3)    Over the following months, Nastatos repeatedly attempted contact with

Koval by regularly sending lengthy love poetry via text messages; waiting for her

after work; friending her on Facebook from accounts under his name and a

pseudonym; and sending private messages over Facebook. After Koval shared with




1
    Nastatos v. State, 91 A.3d 562, 2014 WL 1512887 (Del. Apr. 15, 2014) (TABLE).
2
    Pretrial facts are taken from this Court’s order in id. at *1-3.

                                               2
her co-worker and manager a particular text from him, the manager transferred

Nastatos to another location.

       (4)     Around this time, Koval made her first report to the New Castle County

Police Department. The NCCPD told Koval to block Nastatos’ cell phone number,

which she did. Nastatos continued to regularly contact her through Facebook. 3

Koval again contacted the NCCPD. The police visited Nastatos, who claimed he

and Koval were dating. The police advised Nastatos to stay away from Koval. After

Nastatos persisted in sending her messages, the NCCPD arrested Nastatos. The

Justice of the Peace Court placed bail conditions on Nastatos to have no more direct

or indirect contact with Koval.

       (5)     Nastatos continued to regularly send Koval Facebook messages and

even messaged Koval’s father. Nastatos eventually arrived at the restaurant that was

Koval’s primary place of employment and attempted to speak with Koval. Koval

ran to her car. As she was fleeing, Nastatos threw a ring box at her. Koval contacted

the NCCPD. Nastatos sent Koval more Facebook messages. After Koval contacted

the NCCPD, they arrested Nastatos for additional charges. The Justice of the Peace

Court issued a second no-contact order.


3
  See also id. at *2 (“In various messages, Nastatos called Koval his ‘wife’ and ‘soul sister.’ He
also referenced Koval contacting the police, a necklace he had given Koval, and mutual friends
and co-workers. Nastatos asserted his belief that the restaurant management was conspiring
against him. In one message, Nastatos said, ‘I love you like I’ve never loved another person, but
I can only do so much, especially when you are working against me.’ Nastatos also referenced a
desire to ‘challenge’ anyone for Koval’s ‘hand.’”).

                                                3
      (6)    Over the next eight months, while incarcerated, Nastatos sent Koval

three letters. For each letter the police charged Nastatos with one count of felony

Breach of Conditions of Bond During Commitment. He was also charged with

Stalking and one count of misdemeanor Non–Compliance with Bond Conditions for

each of the Facebook messages he sent to Koval after the court entered the bond

condition.

      (7)    At first, Nastatos was found incompetent to stand trial due to mental

illness. But, after treatment at a separate facility, Nastatos’ competency was found

restored. Upon returning to the custody of Delaware Department of Corrections,

Nastatos stopped taking his medications and was again found incompetent. He

returned to the facility for further treatment and eventually agreed to cooperate with

the program. In August 2012, Nastatos was declared competent to stand trial.

      (8)    In December 2012, Nastatos’ case proceeded to trial. During trial,

Nastatos’ counsel objected to the admission of thirty-eight emails, Facebook

messages, and letters sent by Nastatos for the failure to properly authenticate them.

The court conditionally admitted all thirty eight, but later decided to exclude six and

instructed the jury not to consider the six rejected messages.

      (9)    On direct examination, trial counsel objected to Koval’s testimony that

she received messages from Nastatos. The court instructed the State to lead Koval

so that Koval’s testimony attributed the messages to him. After further errors, the



                                          4
court removed the jury and instructed the witness on how to testify. The jury found

Nastatos guilty of Harassment as a lesser-included offense of Stalking, three felony

counts of Breach of Conditions of Bond During Commitment, and sixteen counts of

Non–Compliance with Bond Conditions.

       (10) Later, prior to the start of sentencing, trial counsel raised a concern

about a conversation during a chambers conference, either before or during trial, in

which the court allegedly made negative comments about Nastatos. Trial counsel

expressed that he was not moving to recuse the judge, but just stating it for the

record. The court sentenced Nastatos to thirty-two years’ incarceration, suspended

after sixteen years.

       (11) Nastatos appealed whether the court sentenced him with a closed mind

and in reliance on impermissible and erroneous facts, which resulted in the

imposition of cruel and unusual punishment. 4 This Court affirmed the Superior

Court’s sentencing on April 15, 2014.5 Within one year, Nastatos filed a pro se Rule

61 motion for postconviction relief and then an Amended Motion for Postconviction

Relief in September 2016 seeking nine claims for relief. Nastatos’ trial counsel and

appellate counsel submitted affidavits. Nastatos requested access to Koval’s cell




4
  The original appeal also contained a second issue. Id. at *1. But, appellant’s counsel voluntarily
withdrew that argument after it was rejected in another case by this Court. Id.
5
  Id.



                                                 5
phone records, which the Superior Court denied for failure to show cause. After an

evidentiary hearing and the submission of written closing arguments, the Superior

Court denied all postconviction claims.

          (12) This Court reviews the denial of a motion for postconviction relief for

an abuse of discretion and questions of law de novo.6 On appeal, Nastatos groups

his nine claims for postconviction relief into four categories to better align with the

Superior Court’s opinion. He argues that the Superior Court erred when it denied

(1) his ineffective assistance of trial counsel claims because it did not properly

evaluate the mistakes, (2) access to Koval’s phone records because it violated his

due process rights, (3) his ineffective assistance of appellate counsel claims because

counsel’s mistakes were “objectively unreasonable,” and (4) a new sentencing

hearing because it misunderstood his argument.

          (13) We first address, however, the procedural bars in Rule 61(i) and apply

the version in effect at the time the original motion was filed.7 Nastatos filed a

motion for postconviction relief in April 2015, when the June 2014 version was in

effect. A motion for postconviction relief is barred by Rule 61(i)(1) if filed more

than one year after the final conviction; by Rule 61(i)(2) if not asserted in a prior

postconviction relief motion, if applicable; by Rule 61(i)(3) if procedurally



6
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
7
    Super. Ct. Crim. R. 61(i); Bradley v. State, 135 A.3d 748, 757 (Del. 2016).

                                                  6
defaulted; and by Rule 61(i)(4) if formerly adjudicated.8 Rule 61(i)(5) provides an

exception to the first four procedural bars if the motion claims that the court lacked

jurisdiction, if the movant pleads with particularity that new evidence exists that

strongly infers the movant’s innocence, or the movant pleads with particularity that

a new rule of constitutional law applies and renders the conviction invalid.9

       (14) The Superior Court found that most of Nastatos’ claims were not

procedurally barred—it was his first motion for postconviction relief and it was

timely filed. 10 Eight claims assert ineffective assistance of counsel, which are

properly raised for the first time in a motion for postconviction relief.11 But the

remaining claim, alleging a Brady violation, is procedurally barred under Rule

61(i)(3).12 Thus, the Superior Court properly determined that his claims, except the

Brady claim, were not procedurally barred.

       (15) On appeal, Nastatos first argues that the Superior Court erred when it

denied his postconviction claim of ineffective assistance of trial counsel. Nastatos’

Amended Motion for Postconviction Relief alleged six separate claims, arguing that

trial counsel was ineffective for failing: 1) to limit prior bad act and mental health



8
  Super. Ct. Crim. R. 61(i)(1)-(4).
9
  Super. Ct. Crim. R. 61(i)(5); Super. Ct. Crim. R. 61(d)(2)(i)-(ii).
10
   This Court affirmed Nastatos’ sentencing on April 15, 2014, and he filed a pro se Rule 61 motion
for postconviction relief on April 8, 2015.
11
   Super. Ct. Crim. R. 61(i)(3); Malloy v. State, 16 A.3d 938, 2011 WL 1135107, at *2 (Del. Mar.
28, 2011) (TABLE).
12
   See infra at ¶¶ 20-21.

                                                7
references made by the State; 2) to object to Officer Clarke’s impermissible hearsay

testimony; 3) to object to the State’s prejudicial direct examination of the

complaining witness; 4) to object to the court’s inadequate jury/limiting instruction

on inadmissible evidence; 5) to review the complaining witness’s cell phone records;

and 6) to move for the recusal of the trial judge prior to sentencing.13

       (16) To prevail on claims of ineffective assistance of counsel, Nastatos must

meet the requirements under Strickland v. Washington: 14 (a) deficient attorney

performance, i.e. counsel’s representation fell below an objective standard of

reasonableness, and (b) prejudice resulting from counsel’s error. 15 To show

prejudice, there must be a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”16 “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.”17 It requires more than some “conceivable effect on the outcome of the

proceeding,” but less than showing the unreasonable conduct “more likely than not

altered the outcome in the case.”18 When conducting an analysis under Strickland,

there is no specified order and if there is an insufficient showing on one prong, there



13
   Nastatos argues claim six in Part IV of his opening brief. Opening Br. at 13 n.11; see id. at 38-
43.
14
   466 U.S. 668 (1984).
15
   Id. at 687; Hoskins v. State, 102 A.3d 724, 730 (Del. 2014).
16
   Strickland, 466 U.S. at 687, 694.
17
   Id. at 694.
18
   Id. at 693.

                                                 8
is no need to address the other.19 “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.”20

      (17) The Superior Court approached the prejudice prong first. On the

charges of Breach of Conditions of Bond During Commitment and Non–Compliance

with Bond Conditions, the Superior Court found that the only disputed issue was

whether Nastatos knowingly had contact with Koval.21 The court found that the

      evidence that Nastatos had contact with Koval was extensive and
      incontrovertible. The content and context of the communications, all
      of which were read to the jury by Koval during her testimony, clearly
      established that Nastatos was communicating with Koval in breach of
      the no contact orders. In addition, Nastatos admitted to Officer Clarke
      that he sent communications to Koval.22

Accordingly, the court found that these guilty verdicts were not affected by

“knowing that Nastatos had been incarcerated and had mental health issues, any

alleged improper hearsay testimony from Officer Clarke, any alleged improper

questioning of the complaining witness on direct examination, or the absence of an

adequate limiting or cautionary instruction.” 23 On the stalking and harassment

charges, the Superior Court found that the only real disputed issue was the effect of



19
   Id. at 697.
20
   Id.
21
   State v. Nastatos, 2019 WL 2092016, at *10 (Del. Super. May 13, 2019) (record citations
omitted) (hereinafter “Opinion”).
22
   Id.
23
   Id.

                                            9
Nastatos’ conduct on Koval. 24 The court found that Nastatos was successful in

arguing a lesser effect when the jury convicted on the lesser-offense of harassment.25

       (18) Nastatos argues that the court did not address the specific effects of

each error that caused individual and cumulative prejudice. For most claims,

Nastatos argues, in various ways, that the Superior Court did not properly consider,

or give appropriate weight to, the evidence and mistakes made.26 For others, he

argues that the Superior Court erred because it misunderstood his argument.27 The

State generally argues that the Superior Court was correct.28




24
   Id.
25
   Id.
26
   For the first claim, he argues that the court was required to perform a Getz analysis, which would
have excluded such evidence, and did not consider his counsel’s failure to request a Getz analysis.
For his second claim, he argues that the court failed to properly consider the significance of the
testimony. On his third claim, Nastatos argues that the court disregarded how it went to his central
defense of raising doubt of identification. For his fourth claim, he argues that the court overlooked
that the jury heard inadmissible evidence without any instruction and that there were better curative
instructions available.
27
   For his fifth claim, he argues that the court misunderstood the issue. He argues that the records
could have provided information beneficial to Mr. Nastatos’ defense even without actual text
messages, but that the court believed they were only valuable if contained actual messages. He
argues the court overlooked the fact that the attorney conceded that his failure to review the records
was non-strategic and could have aided his defense. For his sixth claim, he argues that the court
erred because it misunderstood the issue. He argues that he raised a claim that trial counsel was
ineffective by not filing a motion for recusal prior to sentencing, whereas the court considered
whether the judge was biased.
28
   The State argues that the charges were straightforward and the trial evidence was clear and
overwhelming; the record supports the Superior Court’s factual finding that Nastatos was the
person who sent the messages and letters; the jury acquitted him of stalking, indicating adherence
to the court’s instructions; and Gertz does not apply because there is no true dispute that he sent
the messages because he admitted in his police interview.

                                                 10
       (19) Here, the Superior Court relied on an abundance of evidence supporting

the jury’s findings. Nastatos admitted to sending messages and letters to Koval,29

numerous witnesses testified that Nastatos pursued Koval,30 and the jury responded

to Nastatos’ arguments about the level of harm by reducing the Stalking charge to

Harassment. While the Superior Court stated at trial it was near the end of its

patience with defense counsel’s errors, 31 we agree with the Superior Court’s

conclusion here that there was sufficient evidence to justify a conviction even with

all of the alleged errors. The Superior Court analyzed the claims and reached a

conclusion supported by the record—it did not abuse its discretion when determining

that Nastatos failed to show prejudice from the alleged errors.

       (20) Next, Nastatos argues that the Superior Court violated his due process

rights when it denied him access to cell phone materials needed to substantiate his

alleged Brady and ineffective assistance claims. He argues that denying access to

the phone records “impeded the flow of information necessary for [] Nastatos to

corroborate his allegations of prejudice and infringed on his constitutional right to

due process of law.”32 In his Amended Motion, Nastatos requested the State produce

Ms. Koval’s cell phone records for inspection by postconviction counsel.33



29
   App. to Opening Br. at A114.
30
   Id. at A100, A106-08.
31
   Id. at A54.
32
   Opening Br. at 21.
33
   App. to Opening Br. at A240.

                                         11
       (21) The Superior Court first found that Nastatos’ argument of a possible

Brady violation was procedurally barred. Under Rule 61(i)(3), a ground for relief

not asserted in the proceedings leading to a conviction is barred unless an exception

applied.34 Nastatos acknowledges that trial counsel did not seek relief—either by

reviewing the records or claiming a Brady violation—when he claims ineffective

assistance of counsel for such failure. Thus, he is procedurally barred unless he

claims that the Superior Court lacked jurisdiction, “new evidence exists that creates

a strong inference that [he] is actually innocent in fact,” or “a new rule of

constitutional law, made retroactive to cases on collateral review . . . applies to [his]

case and renders the conviction [] invalid.”35 Nastatos’ failure to plead any of these

exceptions procedurally bars the claim of a possible Brady violation.

       (22) He also raises a related ineffective assistance claim, which he raised in

the first group of claims, arguing ineffective trial counsel because counsel failed to

review the records when the State provided the opportunity. But, the findings

above—that there was still sufficient evidence to convict Nastatos—similarly

support that this claim does not survive the prejudice prong of Strickland. Thus,




34
  Super. Ct. Crim. R. 61(i)(3).
35
  Super. Ct. Crim. R. 61(i)(5); Super. Ct. Crim. R. 61(d)(2)(i)-(ii). It appears that the Superior
Court applied the wrong version of Rule 61 because it looked to Johnson v. State, 129 A.2d 882,
2015 WL 8528889 (Del. Dec. 10, 2015) (TABLE), which applied an earlier version of Rule 61
containing the “miscarriage of justice” exception to a similar Brady claim for postconviction relief.

                                                12
because his Brady claim is barred and ineffective assistance claim fails, the Superior

Court did not violate his due process rights by denying further discovery.36

       (23) Nastatos also argues that the Superior Court erroneously denied his

claim that appellate counsel was ineffective for failing to raise cumulative error on

direct appeal. He claims that counsel’s decision was “objectively unreasonable”

because it denied him the “opportunity for appellate review of multiple trial errors

and left him with a zero percent chance of reversing his convictions.”37 He argues

that raising a “long-shot” claim is “preferential to filing no claim at all,” and that

counsel’s strategic decision was not informed.38

       (24) Under Strickland, there is a “strong presumption that counsel’s conduct

falls within the wide range” of reasonableness. 39 “Strategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments support




36
   Nastatos also argues that this was not “additional discovery” because the records were offered
to trial counsel during trial. We need not decide this because, regardless, there are no viable
postconviction relief claims.
37
   Opening Br. at 34.
38
   Id. at 35.
39
   Strickland, 466 U.S. at 689.

                                               13
the limitations on investigation.” 40 Further, “counsel need not advance every

argument the defendant wishes to raise, regardless of merit.”41

       (25) Nastatos’ appellate counsel filed an affidavit in response to the claim

for postconviction relief. There, counsel acknowledged that she did not raise the

issue of “cumulative error” on direct appeal.42 She stated that there were no other

issues that she felt had a “chance of success on its own or that added value to the

issues that she did raise.”43 She decided not to bring the cumulative error claim

because, in her experience, “there is little to no chance of success of a ‘cumulative

error’ argument that is based on issues that were not preserved at trial.”44 Since none

of the trial errors were preserved at trial, she decided to focus on the arguments with

the “best chance of success.” 45 The Superior Court determined that appellate

counsel’s decision was reasonable under Strickland because she declined to raise the

issue on the belief it had “little to no chance of success” under the plain error

standard.46

       (26) Nastatos argues that counsel was not entitled to deference because the

Superior Court erred when it found that appellate counsel was informed. But,


40
   Id. at 690-91.
41
   Scott v. State, 7 A.3d 471 (Del. 2010) (citing Evitts v. Lucey, 469 U.S. 387, 394 (1985), reh’g
denied, 470 U.S. 1065 (1985); Jones v. Barnes, 463 U.S. 745, 751 (1983)).
42
   App. to Opening Br. at A261.
43
   Id.
44
   Id.
45
   Id.
46
   Opinion, at *12.

                                               14
appellate counsel’s affidavit states that “[a]fter reviewing the entire record, Counsel

raised the issues that she believed, at the time, had the best chance of success on

direct appeal.”47 The Superior Court properly relied on the affidavit and found that

appellate counsel was informed, thus making her strategic choice “virtually

unchallengeable.” While Nastatos cites to a case in which this Court found plain

error on a cumulative error issue,48 his allegations that his case would have had merit

are conclusory and admittedly a “long-shot.”49 He does not overcome the substantial

deference to appellate counsel’s strategy and our review for an abuse of discretion.

       (27) Finally, Nastatos argues that the Superior Court erred when it denied

his claim asserting that he is entitled to a new sentencing hearing because the court

misunderstood his argument. First, he argues that trial counsel was ineffective for

failing to file a motion for recusal prior to the start of the sentencing hearing. And

second, he argues appellate counsel was ineffective for unreasonably limiting the

scope of the sentencing argument raised on direct appeal and omitting a significant

factual component of the issue. He properly raised these issues to the Superior

Court.50




47
   App. to Opening Br. at A261.
48
   Opening Br. at 36 (citing White v. State, 405 A.2d 685, 690 (Del. 1979)).
49
   Id. at 35.
50
   App. to Opening Br. at A247-52.

                                               15
       (28) The Superior Court found that these arguments were identical to the

issue on direct appeal—whether the trial court sentenced him with a closed mind and

based on impermissible and erroneous facts—and accordingly found the arguments

had no merit.51 While we find that the arguments were not identical, we agree with

the result.

       (29) For this ineffective assistance of trial counsel claim, Nastatos notes that

the sentencing judge denied actual bias, and we affirmed that the trial court did not

sentence him with a closed mind or impermissible and erroneous facts.52 Nastatos

argues that a motion for recusal would have been successful because of the

appearance of bias.53 But, even if a motion for recusal would have been successful,

Nastatos does not effectively argue that a similarly non-biased sentencing judge

would have reached a different sentencing result. Because Nastatos fails to show

that but for the trial counsel’s error, the resulting sentence would have been different,

his claim fails under Strickland.

       (30) His ineffective assistance of appellate counsel claim fails for the same

reasons his other ineffective assistance of appellate counsel claims fail. Appellate



51
   Opinion, at *12.
52
   Nastatos, 91 A.3d at *5.
53
   Opening Br. at 42 (citing the test under Los v. Los, 595 A.2d 381, 384-85 (Del. 1991) (“First,
[the judge] must, as a matter of subjective belief, be satisfied that he can proceed to hear the cause
free of bias or prejudice concerning that party. Second, even if the judge believes that he has no
bias, situations may arise where, actual bias aside, there is the appearance of bias sufficient to
cause doubt as to the judge’s impartiality.”)).

                                                 16
counsel is not required to make every argument. In addition to appellate counsel’s

affidavit,54 counsel’s briefing at the time indicates she was informed on the record,55

thus affording her strategy substantial deference. Nastatos argues that there was no

rational basis for not raising this issue and its omission made the appeal deficient.

But, there are a multitude of rational reasons to not raise this issue,56 and omitting

potentially meritorious evidence does not make the argument deficient. He does not

overcome the substantial presumption that counsel’s strategy was within the range

of reasonableness, and the claim fails under Strickland.

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

Court is AFFIRMED.

                                                   BY THE COURT:

                                                   /s/ Collins J. Seitz, Jr.
                                                        Chief Justice




54
   App. to Opening Br. at A261.
55
   See id. at A173-89.
56
   Trial counsel only raised a vague memory of what he thought the judge said on an unspecified
date, but, he said that “I’m not asking for recusal.” Id. at A142-43.

                                              17
