              IN THE SUPREME COURT OF THE STATE OF DELAWARE

DAVID MERRITT,                                §
                                              §      No. 104, 2018
         Defendant Below,                     §
         Appellant,                           §      Court Below: Superior Court
                                              §      of the State of Delaware
         v.                                   §
                                              §      Cr. ID No. N0903001739
STATE OF DELAWARE,                            §
                                              §
         Plaintiff Below,                     §
         Appellee.                            §

                               Submitted: August 8, 2018
                               Decided:   November 5,2018

Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

                                           ORDER

         (1)     This appeal is from the Superior Court’s summary dismissal of the

appellant’s second motion for postconviction relief under Superior Court Criminal

Rule 61.1 The State has moved to affirm the Superior Court’s judgment on the

ground that it is manifest on the face of the appellant’s opening that the appeal is

without merit. We agree and affirm.

         (2)     The appellant, David Merritt, was tried in 2010 on charges that he

sexually abused a minor. At the close of the State’s case, Merritt’s trial counsel

moved unsuccessfully for a judgment of acquittal. The jury convicted Merritt of



1
    State v. Merritt, 2018 WL 11690644 (Del. Super. Ct. Jan. 29, 2018).
eight counts of Rape First Degree and one count of Continuous Sexual Abuse of a

Child. On direct appeal, Merritt’s appellate counsel argued that he was denied the

right to proceed pro se at trial. We concluded that the claim was without merit and

affirmed Merritt’s convictions. 2

         (3)    Merritt’s first motion for postconviction relief as amended and his

related motions for the appointment of counsel and for an evidentiary hearing were

referred to a Superior Court Commissioner. After considering counsel’s affidavit

responding to the allegations of ineffective counsel, the State’s response to the

motion, and Merritt’s reply, the Commissioner issued a report recommending that

the postconviction motion and other motions should be denied. 3 The Commissioner

determined, in relevant part, that Merritt’s stand-alone claims of prosecutorial

misconduct and insufficient evidence were procedurally barred under Rule 61

because the issues were raised and ruled on at trial and were not pursued on direct

appeal. The Commissioner determined that the ineffective counsel claims were

without merit because Merritt did not establish any deficiencies in his counsel's

representation or any prejudice from the alleged deficiencies. After considering

Merritt’s objections to the report and recommendation and conducting a de novo




2
    Merritt v. State, 2011 WL 285097 (Del. Jan. 27, 2011).
3
    State v. Merritt, 2012 WL 5944433 (Del. Super. Comm’r Nov. 20, 2012).
                                               2
review of the record, the Superior Court adopted the report and recommendation and

denied Merritt’s first motion for postconviction relief.

         (4)     On appeal from the denial of his first motion for postconviction relief,

Merritt argued that his trial counsel failed to effectively challenge the sufficiency of

the State’s proffered evidence of penetration, an essential element of first degree

rape. We disagreed and affirmed the Superior Court’s judgment. 4

         (5)     Merritt’s second motion for postconviction relief raised the same

claims as his first postconviction motion. Merritt also filed numerous motions in

conjunction with the motion, including a motion to withdraw the postconviction

motion and to replace it with another version of the motion. The motion to withdraw

and replace was granted by the Superior Court.

         (6)     Merritt’s replacement postconviction motion raised two claims of

ineffective assistance of counsel. Merritt claimed that he would have been granted

a directed verdict or a judgment of acquittal based on insufficient evidence of

penetration had his trial counsel timely objected to the prosecutor’s use of an

“anatomically incorrect” hand gesture simulating a penis penetrating a vagina.

Second, Merritt claimed that his trial counsel’s failure to interview an eyewitness—

namely, the complaining witness’ younger sister—deprived him of an actual

innocence defense. According to Merritt, had the jury heard the trial testimony of


4
    Merritt v. State, 2013 WL 5432824 (Del. Sept. 24, 2013).
                                                 3
the complainant’s younger sister, he would have been found not guilty because the

younger sister would have testified that she was not aware of any abuse. Merritt

contends that evidence of the younger sister’s lack of awareness of the alleged sexual

abuse was crucial to his defense because it contradicted the complaining witness’

testimony that her younger sister was in the room when some of the sexual abuse

occurred.

         (7)        By order dated January 29, 2018, the Superior Court summarily

dismissed Merritt’s second postconviction motion under Rule 61(d)(2).5 On appeal

from that decision, Merritt argues that the Superior Court erred when summarily

dismissing the motion. His argument is without merit.

         (8)        Rule 61(d)(2) provides:

               A second or subsequent motion under this rule shall be
         summarily dismissed, unless the movant was convicted after a trial and
         the motion either:

                (i)    pleads with particularity that new evidence exists that
         creates a strong inference that the movant is actually innocent in fact of
         the acts underlying the charges of which he was convicted; or

                (ii) pleads with particularity a claim that a new rule of
         constitutional law, made retroactive to cases on collateral review by the
         United States Supreme Court or the Delaware Supreme Court, applies
         to the movant’s case and renders the conviction or death sentence
         invalid.




5
    Supra note 1.
                                              4
       (9)    Merritt’s claims do not satisfy either standard in Rule 61(d)(2). None

of the constitutional violations advanced by Merritt arise from a “new rule of

constitutional law.”6 Merritt simply rehashes his previously-adjudicated ineffective

counsel claims and raises a new claim that he was entitled to the appointment of

counsel for his first postconviction motion. Merritt also cannot demonstrate that the

younger sister’s lack of awareness of the alleged sexual abuse constitutes “new

evidence.” The evidence at trial included a videotaped interview of the younger

sister and a detective’s trial testimony, both of which indicated that the younger sister

was unaware of the alleged abuse.7 Finally, where the evidence at trial included the

complaining witness’s lengthy and detailed testimony describing the acts of sexual

intercourse committed by Merritt on a weekly basis over a period of three years,

Merritt cannot demonstrate that the younger sister’s lack of awareness of the alleged

sexual abuse creates “a strong inference” of his actual innocence.8

       NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED. The judgment of the Superior Court is AFFIRMED.

                                                   BY THE COURT:

                                                   /s/Gary F. Traynor
                                                         Justice

6
  Rule 61(d)(2)(ii).
7
  Rule 61(d)(2)(i). Cf. Sykes v. State, 2018 WL 4932731 (Del. Oct. 10, 2018) (finding that the
defendant did not satisfy the “new evidence” requirement in Rule 61(d)(2)(i) when the defendant
presented “no argument that his so-called new evidence was not actually discovered”).
8
  Rule 61(d)(2)(i).
                                              5
