         IN THE SUPREME COURT OF THE STATE OF DELAWARE

ROBERT ASBURY,                           §
                                         §
       Defendant Below,                  § No. 15, 2019
       Appellant,                        §
                                         § Court Below—Superior Court
       v.                                § of the State of Delaware
                                         §
STATE OF DELAWARE,                       § Cr. ID No. 1306006968
                                         §
       Plaintiff Below,                  §
       Appellee.                         §

                          Submitted: August 14, 2019
                          Decided: September 25, 2019

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                 ORDER

      After consideration of the brief and motion to withdraw filed by the

appellant’s counsel under Supreme Court Rule 26(c), the State’s response, and the

Superior Court record, it appears to the Court that:

      (1)    In September 2013, the appellant, Robert Asbury, was indicted for

Attempted Rape First Degree, Rape First Degree, and Strangulation. On April 1,

2014, following a four-day trial, a jury found Asbury guilty of Attempted Rape First

Degree and Strangulation, and not guilty of Rape First Degree. The Superior Court

declared Asbury a habitual offender under 11 Del. C. § 4214(a) and sentenced him

to life imprisonment for the attempted rape conviction. The court sentenced him to
six years’ imprisonment, followed by two years of probation, for the strangulation

conviction.

         (2)    On direct appeal, Asbury’s counsel argued that the Superior Court

abused its discretion when it denied Asbury’s motion for a mistrial after the victim

stated, in response to a question during cross-examination concerning the timeline

of their relationship, that Asbury had been in jail at a particular point in time. This

Court affirmed the judgment of the Superior Court.1

         (3)    Asbury then filed a pro se motion for postconviction relief, in which he

argued that his counsel provided ineffective assistance by failing to object to the

allegedly defective indictment and to request a bill of particulars. The Superior

Court ordered the appointment of postconviction counsel. After reviewing the

record, postconviction counsel concluded that there were no meritorious grounds for

relief and moved to withdraw under Superior Court Criminal Rule 61(e)(7). Asbury

submitted a response, in which he argued that his trial counsel was ineffective for (i)

failing to object to the allegedly defective indictment or to request a bill of

particulars; and (ii) failing to interview or call witnesses who would rebut the

victim’s testimony that she and the appellant were not in a romantic relationship.

         (4)    After additional submissions—including an affidavit from trial counsel

addressing the claim of failure to contact or subpoena witnesses and a supplemental


1
    Asbury v. State, 2015 WL 5968404 (Del. Oct. 13, 2015).


                                                2
submission by Asbury in which he claimed that his postconviction counsel was

subject to a conflict of interest because Asbury’s trial counsel is now a Superior

Court judge—the Superior Court denied Asbury’s motion for postconviction relief.

Asbury has appealed to this Court.

       (5)     On appeal, Asbury’s counsel has filed a brief and motion to withdraw

under Supreme Court Rule 26(c). Asbury’s counsel asserts that, based upon a

complete and careful review of the record, no arguably appealable issues exist.

Counsel informed Asbury of the provisions of Rule 26(c) and provided him with a

copy of the motion to withdraw and the accompanying brief and appendix.2 Counsel

also informed Asbury of his right to supplement counsel’s brief by stating in writing

any points he would like the Court to consider. Asbury has raised four points for the

Court’s consideration. The State has responded to the Rule 26(c) brief and to the

issues raised by Asbury, and argues that the Superior Court’s judgement should be

affirmed.

       (6)     Our review in this appeal is twofold: (i) the Court must be satisfied that

postconviction counsel has made a conscientious examination of the record and the


2
  Asbury asserts that he was not provided a complete trial transcript with postconviction counsel’s
motion and brief. While review of trial transcripts may be necessary to resolve the claims raised
in some appeals, Asbury has not explained how the complete trial transcript is necessary to resolve
any of the issues raised in this appeal from denial of postconviction relief. See generally DEL.
SUPR. CT. R. 26(c)(i)-(ii) (providing that counsel filing a motion and brief under Rule 26(c) must
also file an appendix containing “[a]ppropriate pages from the record, including the sentencing
order and appropriate pages from the transcript” and that counsel must supply the client “with a
copy of the motion, brief, and appendix” (emphasis added)).


                                                3
law for arguable claims;3 and (ii) the Court must conduct its own review of the record

and determine “whether the appeal is indeed so frivolous that it may be decided

without an adversary presentation.”4

       (7)    Asbury raises four issues on appeal:             (i) trial counsel provided

ineffective assistance when he failed to interview or subpoena certain witnesses; (ii)

trial counsel provided ineffective assistance when he failed to object to a defective

indictment or request a bill of particulars; (iii) postconviction counsel faced a

conflict of interest because trial counsel is now a Superior Court judge; and (iv)

postconviction counsel failed to perform a conscientious review of the record.

       (8)    Asbury’s first two claims raise the question of ineffective assistance of

trial counsel. In order to prevail on a claim of ineffective assistance of counsel, a

defendant must demonstrate that (i) defense counsel’s performance fell below an

objective standard of reasonableness; and (ii) there is a reasonable probability that

but for the deficient performance the result of the proceeding would have been

different.5 The appellant must state and substantiate concrete allegations of actual




3
  Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429,
442 (1988); Anders v. California, 386 U.S.738, 744 (1967).
4
  Penson, 488 U.S. at 81.
5
  Strickland v. Washington, 466 U.S. 668, 687-88 (1984).


                                              4
prejudice.6 The appellant must also overcome a strong presumption that counsel’s

performance was professionally reasonable.7

       (9)    Asbury’s claims of ineffective assistance of counsel are without merit.

Asbury first contends that trial counsel was ineffective for failing to interview or

subpoena certain witnesses that Asbury identified. The affidavit submitted by trial

counsel indicates that he does not recall Asbury identifying all of the individuals that

Asbury now asserts should have been interviewed or called as witnesses. The

affidavit further states that the defense team interviewed several of the individuals

that Asbury now identifies and that, in the exercise of his professional judgment, he

would not have called those individuals, or any of the other individuals that Asbury

identifies, because they were not present immediately before, during, or after the

incident; their testimony would have been cumulative with evidence that the defense

did present; they were family members whom the jury would have perceived as

biased; or their proposed testimony would have opened the door to damaging

evidence relating to Asbury’s character, including his extensive criminal history. In

light of trial counsel’s analysis, we conclude that Asbury has not shown that there is

a reasonable probability that the result of the trial would have been different if

counsel had interviewed or called the witnesses at issue, nor has he overcome the


6
  Peters v. State, 2015 WL1280628, at *2 (Del. Mar. 20, 2015) (citing Younger v. State, 580 A.2d
552, 556 (Del. 1990)).
7
  Id.; Albury v. State, 551 A.2d 53, 59 (Del. 1988).


                                               5
presumptions that counsel’s conduct was professionally reasonable and that it was

consistent with “sound trial strategy.”8

         (10) Asbury also argues that trial counsel was ineffective for failing to object

to the indictment and for failing to request a bill of particulars. Asbury claims that

the indictment was impermissibly vague, and a bill of particulars was required,

because he was accused of three sexual acts but the indictment did not specify which

act corresponded with which of the two sexual assault charges.

         (11) These claims of ineffective assistance also are without merit. Under

Superior Court Criminal Rule 7, an indictment “shall be a plain, concise and definite

written statement of the essential facts constituting the offense charged” and “shall

state for each count the official or customary citation of the statute, rule, regulation

or other provision of law which the defendant is alleged therein to have violated.”

Count I of the indictment in this case states:

                ATTEMPTED RAPE FIRST DEGREE IN VIOLATION OF
         Title 11, Section 773 of the Delaware Code.

                 ROBERT ASBURY, on or about the 9th day of June, 2013, in
         the County of New Castle, State of Delaware, did intentionally attempt
         to engage in sexual intercourse with [L.L.], without her consent, and
         the defendant caused physical injury and/or did intentionally attempt to
         engage in sexual intercourse with [L.L.], without her consent and it was
         facilitated by or occurred during the attempt or actual commission of
         assault in the third degree and/or terroristic threatening which under the
         circumstances as believed them to be constituted a substantial step in a


8
    Strickland, 466 U.S. at 689.


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       course of conduct planned to culminate in his commission of Rape First
       Degree, in violation of Title 11, Section 773 of the Delaware Code.

Count II of the indictment states:

             RAPE FIRST DEGREE in violation of Title 11, Section 773 of
       the Delaware Code.

              ROBERT ASBURY, on or about the 9th day of June, 2013, in
       the County of New Castle, State of Delaware, did intentionally engage
       in sexual intercourse with [L.L.] without her consent, and during the
       commission of the crime, the immediate flight flowing [sic] the
       commission of the crime, or an attempt to prevent the reporting of the
       crime, the defendant caused physical injury to [L.L.] and/or did
       intentionally engage in sexual intercourse with [L.L.], without her
       consent and it was facilitated by or occurred during the following
       misdemeanor, assault in the third degree.

       (12) Asbury claims that the indictment does not contain the “essential facts”

constituting the offenses, and by leaving out such information, the State deprived

him of the opportunity to prepare a defense. But the indictment spells out in plain

language the crimes with which Asbury was charged, with the language nearly

mirroring the statutory language. It also specifies the date of the alleged offenses,

the identity of the victim, and the nature of the offenses—sexual intercourse without

consent and attempted sexual intercourse without consent, along with the alleged

aggravating factors for each charge. The indictment was therefore sufficiently

specific to give Asbury notice of the charges against him.9 Because the indictment


9
  See Hearne v. State, 2017 WL 6336910 (Del. Dec. 11, 2017) (holding, in a case involving
allegations of various forms of unlawful sexual conduct, that an indictment containing eight
identically worded charges was sufficiently specific, where it alleged that “between January 1,


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was not defective, trial counsel was not ineffective for failing to object, nor was

Asbury prejudiced by the failure to object.

       (13) Citing Luttrell v. State,10 Asbury also contends that trial counsel should

have requested a bill of particulars to clarify which specific acts corresponded to

each charge. In Luttrell, the defendant was indicted on two counts of Rape First

Degree, one count of Attempted Rape First Degree, three counts of Unlawful Sexual

Contact First Degree, one count of Attempted Unlawful Sexual Contact First

Degree, two counts of Endangering the Welfare of a Child, and two counts of

Indecent Exposure. All of the charges arose out of allegations that Luttrell sexually

assaulted a child in various ways on two different dates. This Court held that the

Superior Court erred by denying a requested bill of particulars because the

indictment did not put Luttrell on notice of which alleged acts aligned with each

count of the indictment or on which dates the acts were alleged to have occurred,

particularly where there was conflicting testimony regarding the dates on which the

alleged conduct occurred and the testimony did not align with the dates stated in the

indictment. In contrast to Luttrell, the indictment in this case charged Asbury with

a single count of three different offenses, rather than multiple counts of certain


2008 and February 1, 2012, in New Castle County, [the defendant], who was over age eighteen,
intentionally engaged in sexual intercourse with [the victim], who had not yet reached her twelfth
birthday); Owens v. State, 449 A.2d 200, 201 (Del. 1982) (holding that an indictment was not
defective or insufficient where it stated the offense charged and informed the defendant of the date,
place, and victim of the alleged crime).
10
   97 A.3d 70 (Del. 2014).


                                                 8
offenses. Moreover, unlike in Luttrell, the charges against Asbury all arose from a

single incident on a single date, rather than separate incidents on different dates. The

indictment therefore sufficiently put him on notice of the charges against him, and

Asbury has not has not shown how a bill of particulars would have helped him

achieve a different result at trial. Thus, trial counsel was not ineffective for failing

to request a bill of particulars.11

       (14) Third, Asbury claims that his postconviction counsel did not zealously

advocate on his behalf because of a conflict of interest. Before sentencing, Asbury’s

trial counsel became a judge on the Superior Court. As a result, Asbury asserts, his

postconviction counsel, who practices in the Superior Court, fears that criticizing the

representation provided by trial counsel will result in professional backlash. This

claim is without merit. As an initial matter, a claim of ineffective assistance of

postconviction counsel is not viable, because there is no constitutional right to

counsel in a postconviction proceeding.12 Moreover, a Delaware lawyer is ethically

obligated to zealously advocate for her client, within the rules of the adversary

system; to provide competent and diligent representation of her client; and to be

candid with the courts.13 Asbury’s speculative argument provides no basis for the


11
   See Brooks v. State, 2018 WL 5980577, at *3 (Del. Nov. 13, 2018) (rejecting claim that trial
counsel was ineffective for failing to request a bill of particulars).
12
   Watson v. State, 2009 WL 2006883, at *2 (Del. July 13, 2009) (citing Pennsylvania v. Finley,
481 U.S. 551 (1987)).
13
   DEL. LAWYERS’ R. PROF. COND. Preamble; R. 1.1; R. 1.3; R. 3.3.


                                              9
Court to conclude that postconviction counsel would violate her ethical obligations

in order to avoid criticizing the representation provided by former defense counsel

who is now a judge.

      (15) Finally, Asbury claims that neither postconviction counsel nor the

Superior Court has shown a meaningful review of the record. This argument is

without merit. The motion to withdraw and accompanying materials comport with

the requirements of Rule 26(c), and there is no merit to Asbury’s assertion that

counsel’s and the Superior Court’s citations to a previous decision in this case, rather

than to the record, indicate that they did not review the record. In any event, this

Court has carefully reviewed the record and concluded that Asbury’s appeal is

wholly without merit and devoid of any arguably appealable issue. We also are

satisfied that counsel made a conscientious effort to examine the record and the law

and properly determined that Asbury could not raise a meritorious claim on appeal.

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

Court is AFFIRMED. The motion to withdraw is moot.

                                        BY THE COURT:

                                        /s/ James T. Vaughn, Jr.
                                        Justice




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