      IN THE SUPREME COURT OF THE STATE OF DELAWARE

 MARC TAYLOR,                            §
                                         §
       Defendant Below-                  §   No. 20, 2016
       Appellant,                        §
                                         §
       v.                                §   Court Below—Superior Court
                                         §   of the State of Delaware
 STATE OF DELAWARE,                      §
                                         §   Cr. ID 1008008293
       Plaintiff Below-                  §
       Appellee.                         §

                          Submitted: August 5, 2016
                           Decided: October 10, 2016

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                  ORDER

      This 10th day of October 2016, upon consideration of the parties’

briefs and the record on appeal, it appears to the Court that:

      (1)    The appellant, Marc Taylor, filed this appeal from the Superior

Court’s order, dated December 17, 2015, denying his first motion for

postconviction relief. After careful consideration, we find no merit to the

appeal. Accordingly, we affirm the Superior Court’s judgment.

      (2)    After a twenty-four day trial, a Superior Court jury convicted

Taylor in March 2012 of Gang Participation, Possession of Cocaine, Assault

in the Second Degree, Possession of a Firearm During the Commission of a

Felony, two counts of Possession of a Firearm by a Person Prohibited, and
Non-Compliance with the Conditions of Bond. Initially, Taylor had been

charged along with seven codefendants. Six of those codefendants pled

guilty before trial. Taylor was tried along with his remaining codefendant,

Kevin Rasin, who was convicted of two counts of Murder in the First

Degree, Gang Participation, and related charges. On May 23, 2012, the

Superior Court sentenced Taylor to fifteen years and six months at Level V

incarceration, followed by decreasing levels of supervision. This Court

affirmed his convictions and sentence on direct appeal.1

          (3)    Taylor filed his first motion for postconviction relief under

Superior Court Criminal Rule 61 in November 2013. Taylor raised four

issues in his motion, claiming that: (i) his trial counsel was ineffective for

various reasons; (ii) many of the State’s witnesses perjured themselves at

trial; (iii) the evidence was insufficient to support his conviction for Gang

Participation; and (iv) his appellate counsel was ineffective for failing to

challenge inconsistencies in the witnesses’ testimony on appeal.          The

Superior Court appointed counsel to represent Taylor. Appointed counsel

ultimately filed a motion to withdraw under Rule 61(e)(6), concluding that

no substantial ground for relief could ethically be argued on Taylor’s behalf.

Taylor was permitted to file additional points in response to his counsel’s

1
    Taylor v. State, 76 A.3d 791 (Del. 2013).


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motion to withdraw. On December 17, 2015, the Superior Court denied

Taylor’s Rule 61 motion.2 This appeal followed.

         (4)    In his opening brief on appeal, Taylor raises five distinct

arguments. First, he contends that his trial counsel was ineffective for

failing to file a motion to sever his trial from Rasin’s. Second, Taylor

contends that his trial counsel was ineffective for failing to object to hearsay

testimony admitted through many different witnesses.3                    Third, Taylor

contends that one of the victims was coerced into identifying Taylor at trial

as the person who shot him. Fourth, Taylor argues that trial counsel was

ineffective for failing to file a motion for new trial based on juror

misconduct and bias.           Finally, Taylor contends that trial counsel was

ineffective for failing to investigate and challenge the chain of custody of the

gun that was admitted into evidence against him.

         (5)    We note that only one of the issues which Taylor raises on

appeal was also raised in the Rule 61 motion he filed in the Superior Court.

To the extent that Taylor raised other issues in the Superior Court, he has

waived any right to review of those claims on appeal by failing to argue

2
    Taylor v. State, 2015 WL 9592457 (Del. Super. Dec. 17, 2015).
3
  As a corollary to this argument, Taylor restates a claim that this Court rejected in his
direct appeal, namely that the Superior Court erred in allowing into evidence the hearsay
statement of a boy named Maleek. See Taylor v. State, 76 A.3d at 800. The interests of
justice do not require us to consider this previously litigated claim simply because Taylor
has refined and restated it. Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992).


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them in his opening brief.4          Moreover, because Taylor failed to raise four

out of his five appellate claims in the postconviction motion he filed in the

Superior Court, those claims may only be reviewed on appeal for plain

error.5

          (6)    With respect to the one appellate claim that was raised below,

Taylor argues that his trial counsel was ineffective for failing to file a motion

to sever his trial from Rasin’s trial. We apply the Strickland standard in

reviewing that claim. Under Strickland, Taylor must demonstrate that: (a)

his trial counsel’s conduct fell below an objective standard of

reasonableness; and (b) there is a reasonable probability that, but for

counsel’s unprofessional errors, the outcome of the trial would have been

different.6 A defendant is required to set forth and substantiate concrete

allegations of cause and actual prejudice.7 Moreover, there is a “strong

presumption” that counsel’s representation was professionally reasonable.8

          (7)    In analyzing Taylor’s ineffectiveness claim, the Superior Court

considered the likelihood of whether a motion to sever would have been

granted, assuming trial counsel had file such a motion on Taylor’s behalf.
4
    Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).
5
    See Del. Supr. Ct. R. 8 (2012); DeJesus . State, 655 A.2d 1180, 1198 (Del. 1995).
6
    Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
7
    Younger v. State, 580 A.2d 552, 556 (Del. 1990).
8
    Strickland v. Washington, 466 U.S. at 689.


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The Superior Court noted the four factors a Delaware trial court will weigh

in deciding whether to sever the trial of codefendants: (i) any problems

involving a codefendant’s out-of-court statements; (ii) an absence of

substantial independent competent evidence of one codefendant’s guilt; (iii)

antagonistic defenses between the codefendants; and (iv) the difficulty in

segregating the State’s evidence between the codefendants.9

       (8)    In Taylor’s case, the Superior Court concluded that, if counsel

had filed a motion to sever Taylor’s trial from Rasin’s, the motion would

have been denied because: (i) Rasin made no extrajudicial statements that

were admitted against Taylor at trial; (ii) the State had substantial

independent evidence to prove Taylor’s guilt; and (iii) Taylor and Rasin did

not have antagonistic defenses. The Superior Court noted that, while there

might have been some difficulty in segregating the State’s evidence of gang

participation between Taylor and Rasin, the weight of the other three factors

would have resulted in the denial of a motion to sever. We agree and adopt

the Superior Court’s analysis of this claim.            Under the circumstances,

Taylor’s claim of ineffective assistance of trial counsel fails because Taylor

cannot establish that he was prejudiced by his counsel’s decision not to file a

motion to sever. Thus, we reject this claim on appeal.
9
 Ayers v. State, 97 A.3d 1037, 1042 (Del. 2014) (quoting Floudiotis v. State, 726 A.2d
1196, 1210 (Del. 1999)).


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          (9)    Taylor’s four remaining claims are that his trial counsel was

ineffective for failing to object to hearsay testimony, for failing to challenge

the victim’s coerced identification of Taylor at trial, for failing to file a

motion for new trial based on juror misconduct and bias, and for failing to

challenge the chain of custody of the gun. None of these claims was raised

in the postconviction motion Taylor filed in the Superior Court. We will not

consider any of these claims for the first time on appeal absent a showing of

plain error.10 Plain error is error that is apparent on the face of the record

and is so fundamental and serious that it affected the outcome of the trial.11

Taylor’s contentions, however, are entirely conclusory and lacking any

factual support or citation to the record. In short, we find no plain error and

reject these newly-raised claims.

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

Superior Court is AFFIRMED.

                                              BY THE COURT:

                                              /s/ Karen L. Valihura
                                                     Justice




10
     Del. Supr. Ct. R. 8 (2013).
11
     See Roy v. State, 62 A.3d 1182, 1191 (Del. 2012).


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