           IN THE SUPREME COURT OF THE STATE OF DELAWARE


DONALD COLE,                           §
                                       §   No. 353, 2017
      Defendant-Below,                 §
      Appellant,                       §   Court Below: Superior Court
                                       §   of the State of Delaware
      v.                               §
                                       §   Cr. ID. Nos. 0110006694A
STATE OF DELAWARE,                     §                0309013358
                                       §
      Plaintiff-Below,                 §
      Appellee.                        §

                          Submitted: February 14, 2018
                          Decided:   February 28, 2018

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

                                       ORDER

      This 28th day of February 2018, having considered the briefs and the record

below, it appears to the Court that:

      (1)    Donald Cole and Larry Johnson were charged with shooting and

injuring two residents while burglarizing a home on Lancaster Avenue in

Wilmington. Nine days later, Cole, Johnson, and Travanian Norton were accused

of shooting and killing two residents while burglarizing a home on 23rd Street in

Wilmington. The same guns were used in both burglaries.

      (2)    The State charged Cole for the Lancaster Avenue burglary along with

Elwood Hunter. Cole knew Hunter was not involved in the burglary and wanted to
give a statement to exonerate him. Cole’s counsel advised him not to and warned

that if he did so, the State would likely charge him for the 23rd Street murders and

seek the death penalty. Cole nonetheless insisted on giving the statement, and the

parties negotiated a plea agreement. The parties disagree, however, on exactly what

the State promised Cole in exchange for the statement.

       (3)     According to the State, they agreed that if Cole pleaded guilty and gave

a statement providing information about both the Lancaster Avenue and 23rd Street

burglaries, they would “consider” waiving the death penalty for the 23rd Street

charges. They would not waive the death penalty, however, “until they knew the

content and substance of Cole’s statement.”1 According to Cole, he “believed that,

in exchange for [his] truthful statement, the State would not seek the death penalty.”2

In addition, Cole believed the statement would be used only for “review and

consideration of the death penalty,” and not “for any other purpose.”3 The agreement

was not reduced to writing.

       (4)     On January 14, 2003, Cole gave the statement. At the beginning of the

recording, the attorney for the State specified, “we are going to take [a] proper

statement of what you have to say about anything we ask you about and I’m going




1
  Opening Br. at 6.
2
  Id.
3
  Id. at 6–7.



                                           2
to take that statement back to my superiors and discuss with them whether to make

you an offer where you would be spared capital punishment.”4 The State said

nothing about using the statement for any other purpose. In his statement, Cole

exonerated Hunter and admitted his involvement in both the Lancaster Avenue and

the 23rd Street burglaries. He stated that Norton was an accomplice in the 23rd Street

burglary and that Johnson was an accomplice in both. Cole then pleaded guilty to

the charges of attempted first degree murder, first degree assault, and two counts of

possession of a firearm by a person prohibited for the Lancaster Avenue burglary

and shooting.

       (5)    Following the Lancaster Avenue plea, the State charged Cole with the

23rd Street murders and sought the death penalty. Cole filed a motion to prevent the

State from seeking the death penalty, arguing it had agreed to waive it in exchange

for his statement.     The court denied Cole’s motion, finding “[t]he transcript

contain[ed] no promises about benefit to Cole as a result of the proffer, other than

[the State’s] willingness to consider the information and review [Cole’s] request

again with the senior staff.”5

       (6)    The State also questioned Norton about his involvement in the 23rd

Street burglary and played him a part of Cole’s recorded statement. After hearing



4
  App. to Answering Br. at 28 (Cole Statement, State v. Cole, No. 30-01-87104, at 1 (Jan. 14,
2003)).
5
  Cole v. State, 922 A.2d 364, 367 (Del. 2007).


                                             3
that Cole implicated him, Norton agreed to give a statement and testify against Cole

in exchange for a favorable plea deal. Cole filed a motion to suppress all evidence

derived from his statement, including Norton’s statement and testimony, arguing that

the State did not reveal it was going to use the statement for any purpose other than

possible waiver of the death penalty. The court denied that motion as well, finding

the State had only agreed not to use the audiotape at trial.6 The court allowed Norton

to testify.

       (7)     Also prior to trial, an inmate, Gary Lloyd, came forward and said his

cellmate confessed to committing the burglary. Cole’s counsel did not investigate

Lloyd or his cellmate.7 According to Cole, his counsel only communicated with him

five times outside of court proceedings.8 At trial, Norton was the only witness to

implicate Cole. In his statement, Norton said that he saw Cole climb into a window

from the roof, but was not sure how Cole got onto the roof.9 At trial, however,



6
  Cole v. State, 2006 WL 1134222, at *5 (Del. Super. Mar. 14, 2006), aff’d, 922 A.2d 364. This
use was already prohibited by Delaware Rule of Evidence 410. See D.R.E. 410 (“Except as
otherwise provided in this rule, evidence of a plea of guilty later withdrawn with court permission,
or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged
or any other crime, or of statements made in connection with, and relevant to, any of the foregoing
pleas or offers, is not admissible in any civil or criminal proceeding against the person who made
the plea or offer.”).
7
  At a postconviction evidentiary hearing, Lloyd also denied making the statement, stating his
cellmate “said he didn’t do it, that’s it.” App. to Opening Br. at 398–99 (Evid. Hr’g, State v. Cole,
No. 0309013358, at 17–20 (Del. Super. June 29, 2015) (TRANSCRIPT)).
8
  Opening Br. at 20.
9
  App. to Opening Br. at 488 (Norton Statement, No. 01-87104, at 49 (July 30, 2003)
(TRANSCRIPT)).



                                                 4
Norton testified that he saw Cole climb onto an open trash can and saw Johnson push

Cole up onto the roof.10 Norton also testified that once inside, he saw Cole shoot

one victim, and saw Cole and Johnson both shoot the other.11 The defense attorney

never visited the crime scene, but did cross-examine a state witness about the area,

including the lighting and the characteristics of the roof.12 On July 31, 2004, the

jury convicted Cole of four counts of first degree murder, first degree burglary,

second degree conspiracy, and five counts of possession of a firearm by a person

prohibited. The jury did not impose the death penalty, and the court sentenced Cole

to life in prison.

       (8)     Cole appealed the 23rd Street conviction, arguing the court erred in

denying his motion to suppress the statement and evidence derived from it.13 On

October 20, 2005, this Court remanded the case but retained jurisdiction, requiring

the Superior Court to make explicit factual findings regarding the proffer.14 The



10
   Id. at 43, 59 (Trial Tr., State v. Cole, No. 0309013358, at 20, 82–84 (Del. Super. July 21, 2004)
(TRANSCRIPT)).
11
   Id. at 45–47 (Trial Tr., at 26–34).
12
   Opening Br. Ex. A (Mem. Op., State v. Cole, Nos. 0110006694A, 0309013358, at 35–41 (Del.
Super. Aug. 1, 2017)).
13
   Appellant’s Opening Br., Cole v. State, 922 A.2d 354, 2005 WL 1923062 (Del. Super. June 17,
2005)). As for the Lancaster Avenue case, Cole filed a pro se motion for postconviction relief on
February 10, 2006, which the Superior Court denied on August 20, 2007. On May 29, 2008, this
Court remanded to allow Cole to be represented by an attorney, and on October 22, 2010, Cole
filed an amended motion for postconviction relief. On September 21, 2012, the Superior Court
Commissioner denied Cole’s motion for postconviction relief, which Cole appealed on October 5,
2012. The Superior Court affirmed the Commissioner’s decision on August 1, 2017.
14
   Cole v. State, 922 A.2d 354 (Del. 2005).



                                                 5
court made the factual findings on March 14, 2006,15 and this Court affirmed Cole’s

convictions on March 12, 2007.16 On July 17, 2007, Cole filed a pro se motion for

postconviction relief, alleging ineffective counsel and insufficient evidence, which

the Superior Court denied on December 7, 2007.17 This Court affirmed on April 30,

2008.18 Next, Cole filed a petition for a writ of habeas corpus in federal court, which

was stayed at Cole’s request so he could file an amended motion for postconviction

relief in the Delaware Superior Court. He filed the motion on October 22, 2010,

alleging sixteen counts of ineffective counsel. On September 21, 2012, the Superior

Court Commissioner denied Cole’s amended motion,19 which Cole appealed. On

August 1, 2017, the Superior Court affirmed the Commissioner’s denial after

holding three days of evidentiary hearings and allowing Cole to appoint an

investigator and ballistics expert.

       (9)    On appeal, Cole argues the court abused its discretion in denying his

claim that his counsel were ineffective in negotiating and enforcing his plea deal and

in failing to communicate with him, to investigate a witness, and to investigate the




15
   Cole, 2006 WL 1134222.
16
   Cole, 922 A.2d 364.
17
   App. to Opening Br. at 20.
18
   Cole v. State, 947 A.2d 1120, 2008 WL 1887292 (Del. Apr. 30, 2008) (TABLE).
19
   App. to Opening Br. at 229 (Comm’r’s R. & R., State v. Cole, No. 0309013358 (Del. Super.
Sept. 21, 2012)).



                                            6
crime scene. This Court reviews the denial of a motion for postconviction relief for

an abuse of discretion.20 Questions of law are reviewed de novo.21

       (10) Cole first claims that the court abused its discretion in dismissing

“wholesale” his claim that his counsel were ineffective in the negotiation,

enforcement, and appeal of his plea deal, specifically because they failed to put the

agreement in writing. We first address the procedural bars in Rule 61(i) of the

Superior Court Rules of Criminal Procedure.22 A motion for postconviction relief is

barred by Rule 61(i)(1) if filed more than one year after final conviction; by Rule

61(i)(2) if not asserted in a prior postconviction motion; by Rule 61(i)(3) if

procedurally defaulted; and by Rule 61(i)(4) if formerly adjudicated.23 A claim not

formerly raised or adjudicated may be reconsidered “in the interest of justice.”24 In

addition, Rule 61(i)(5) provides an exception to the first three procedural bars if the

movant shows “a colorable claim that there was a miscarriage of justice because of

a constitutional violation that undermined the fundamental legality, reliability,

integrity or fairness of the proceedings leading to the judgment of conviction.”25 The


20
   Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010).
21
   Lewis v. State, 945 A.2d 1167, 2008 WL 880172, at *1 (Del. 2008) (TABLE).
22
   Super. Ct. Crim. R. 61(i). We apply the version of Rule 61 in effect at the time the motion is
filed. Bradley v. State, 135 A.3d 748, 757 (Del. 2016). Taylor filed this motion for postconviction
relief in 2010, at which time the 2005 version of Rule 61 was in effect.
23
   Super. Ct. Crim. R. 61(i)(1)–(4).
24
   Id. 61(i)(2), (4).
25
   Id. 61(i)(5). Whether allegations in a Rule 61 motion present a “colorable claim” under Rule
61(i)(5) is a question of law. Lewis, 2008 WL 880172, at *1. The court is “not obliged to opine



                                                7
Rule 61(i)(5) “exception is narrow and only applies when the movant can present

some credible evidence that he has been denied a substantial constitutional right.”26

The standard may be met if the movant pleads a “meritorious ineffective assistance

of counsel claim that demonstrates a constitutional violation.”27

       (11) The Superior Court found Cole’s claim that his counsel were ineffective

in negotiating the plea agreement was barred by Rule 61(i)(1) because it was not

filed within one year of conviction, and by Rule 61(i)(2) because it was not raised in

his first motion for postconviction relief.28 The court also found this claim was

barred by Rule 61(i)(4) as formerly adjudicated, because it was “premised in one

fashion or another on the contention that his counsel was ineffective during (a) his

plea negotiations . . . and (b) in their efforts to exclude evidence . . . derived from

the alleged misuse of Cole’s proffer.”29 Therefore, the court concluded, the claim



on the probability of success on these claims, but merely to ascertain whether, based on the
allegations, a colorable claim or claims exist.” TCW Tech. Ltd. P’ship v. Intermedia Commc’ns,
Inc., 2000 WL 1478537, at *2 (Del. Ch. Oct. 2, 2000). While a colorable claim does not
“necessarily require a conclusive showing of trial error, mere ‘speculation’ that a different result
might have [been] obtained certainly does not satisfy the requirement.” State v. Trump, 2004 WL
2827958, at *2 (Del. Super. Aug. 31, 2004), aff’d, 870 A.2d 1192, 2005 WL 583749 (Del. Mar. 9,
2005) (TABLE); see also State v. Poon, 2010 WL 703052, at *1 (Del. Super. Feb. 26, 2010).
26
   State v. Ducote, 2011 WL 7063381, at *1 (Del. Super. Dec. 29, 2011) (citing Younger v. State,
580 A.2d 552, 555 (Del. 1990)).
27
   State v. Flowers, 150 A.3d 276, 282 (Del. 2016). To plead a meritorious ineffective assistance
of counsel claim, the movant must show that counsel’s representation fell below an objective
standard of reasonableness, resulting in prejudice to the defense. Strickland v. Washington, 466
U.S. 668, 687–88 (1984).
28
   Opening Br. Ex. A. (Op. at 15–16). Cole’s conviction was final in 2007, and he filed this motion
for postconviction relief in 2010.
29
   Id. (Op. at 42–43).



                                                 8
was addressed when this Court rejected Cole’s argument that the statement should

have been suppressed, and thus was procedurally barred.30

       (12) The Superior Court relied on State v. Wright, in which this Court

reversed the Superior Court’s decision and held that the court could not on its own

reconsider the defendant’s Miranda warnings, because “the admissibility of Wright’s

confession has been challenged and upheld repeatedly.”31 The Court held that “a

defendant is not entitled to have a court re-examine an issue that has been previously

resolved ‘simply because the claim is refined or restated.’”32 In the instant case, the

Superior Court held that Cole’s claim of ineffective assistance in negotiating the plea

merely “refined or restated” his claim that the motion should have been suppressed,

and thus found it procedurally barred.33

       (13) On appeal, Cole argues the court abused its discretion because this

specific claim was not formerly adjudicated.          Cole explains that he was “not

rearguing the suppression of evidence” in this motion, but rather was alleging

“constitutional deficiencies” in his counsel’s negotiation and enforcement of the




30
   Cole, 2006 WL 1134222.
31
   67 A.3d 319, 323 (Del. 2013), as amended (May 28, 2013). The Miranda warnings had already
been found effective on a motion to suppress at trial, on direct appeal, on a motion for
postconviction relief, and on that motion’s appeal. Id.
32
   Id. (citations omitted).
33
   Opening Br. Ex. A (Op. at 43–44).



                                             9
agreement.34 Cole argues the Court should apply Lacombe v. State,35 in which this

Court found an ineffective counsel claim was not barred under Rule 61(i)(4).36 In

Lacombe, the Superior Court previously adjudicated and decided that the

defendant’s sentence was not disproportionate.37 In the postconviction motion,

however, the movant claimed that his counsel were ineffective for failing to present

a case comparison when arguing that the sentence was disproportionate.38 This

Court explained that the defendant “alleged a specific deficiency in Appellate

Counsel’s performance that was not raised on direct appeal.”39 The Court thus

concluded that the ineffective assistance claim was legally distinct and not barred as

formerly adjudicated under Rule 61(i)(4).40

       (14) Cole’s situation is more similar to the situation in Lacombe than that in

Wright. In Wright, the court addressed the exact issue that was already addressed

below—whether the Miranda warnings were effective. However, in Lacombe, the

court found the two issues—whether the sentence was disproportionate and whether

his counsel were ineffective in arguing it—were distinct. In the instant case, the



34
   Id. at 14.
35
   163 A.3d 708, 2017 WL 2180545, at *3 (Del. May 17, 2017) (TABLE).
36
   Opening Br. at 15–16.
37
   2017 WL 2180545, at *3.
38
   Id.
39
   Id. (“[T]he argument itself is not that the sentence is disproportionate. Rather, the claim here is
that Appellate Counsel was ineffective for citing only one case from another jurisdiction.”).
40
   Id.



                                                 10
issues—whether the statement should have been suppressed and whether his counsel

were ineffective in negotiating the plea—are also distinct. Thus, Cole’s claim was

not formerly adjudicated and is not barred by 61(i)(4).41

        (15) The claim is still procedurally barred, however, by Rules 61(i)(1)

and (2), and thus Cole can only proceed if he can overcome these bars by meeting

the requirements of Rule 61(i)(5). To do so, he must state a colorable constitutional

claim that his counsel were ineffective.42 A “colorable” claim is one that establishes

a reasonable probability of prejudicial error.43 In Lacombe, this Court found that

because the Superior Court already determined the sentence was not

disproportionate, “[c]ounsel’s failure to provide a survey of comparable cases had

no impact on the direct appeal.”44 Similarly, here, the court made thorough factual

findings about what the parties agreed to at the time Cole gave a statement.45 The



41
   Cf. Barrow v. State, 913 A.2d 569 (Del. 2006) (holding the claim that counsel were ineffective
for failing to timely file a motion to suppress was barred by Rule 61(i)(4) because the court already
found that admitting the statement did not prejudice the defendant).
42
   State v. Mayfield, 2003 WL 21267422, at *3 (Del. Super. June 2, 2003) (quoting State v. Getz,
1994 WL 465543 (Del. Super. July 15, 1994), aff’d, 651 A.2d 787 (Del. 1994)).
43
   See, e.g., Getz, 1994 WL 465543, at *11.
44
   Lacombe, 2017 WL 2180545, at *4.
45
   Cole, 2006 WL 1134222, at *1 (“Cole and Miller agreed before the proffer that the proffer would
be used in two ways. First, they implicitly agreed that the statement would be used to determine
whether the State would dismiss the charges against Hunter who was likely to be wrongly
convicted. . . . Second, Cole and Miller explicitly agreed that the State would use the statement to
evaluate the propriety of waiving the death penalty in connection with the prosecution of the 23rd
Street double murders.”); id. at *5 (“When Cole gave the statement, he knew of the ballistics link
between Lancaster Avenue and 23rd Street, and he knew that by giving the statement he ‘would
likely be convicted.’”); id. (“Little is certain in this case, but the fact that [Cole’s defense counsel]



                                                  11
court found Cole’s statement was admissible, and this Court affirmed, even though

his counsel did not put the plea in writing.46 Thus, even if Cole’s counsel were

ineffective, Cole cannot establish a reasonable probability that the result would have

been different had the agreement been in writing.47 Thus, Cole does not meet the

exception of Rule 61(i)(5), and therefore his claim remains procedurally barred by

Rules 61(i)(1) and (2).

       (16) Cole next claims the Superior Court abused its discretion by denying

his claim that his counsel were ineffective for failing to communicate with him,

failing to investigate the crime scene, and failing to investigate a witness. The court

found Cole’s claims were barred by Rule 61(i)(1) as untimely and Rule 61(i)(2) as

not raised in his previous motion. Thus, the court analyzed whether Cole could

overcome these bars by alleging a colorable claim of ineffective counsel under Rule

61(i)(5).48


counseled against the proffer has never been disputed.”); id. (“I conclude that the agreement before
and after the proffer was that the only limitation on the use of the statement was D.R.E. 410.”).
46
   Cole, 922 A.2d at 373 (“We are compelled to stress that the parties easily could have avoided
the confusion caused by the resulting misunderstanding by putting their agreement in writing or
on the record before the proffer.”); Cole, 2006 WL 1134222, at *5 (“The voluntary nature of the
statement, given against advice of counsel, the corroboration requirement; the explanation of
Miller; the post-statement arrival of the ‘investigative purposes’ limitation; Cole’s affidavit where
he says that he knew the State would check out the statement, and that he would be convicted of
the 23rd Street murders; lead me to conclude that the limitation on the use now asserted was not
contemplated at the time the proffer was taken.”).
47
   Strickland, 466 U.S. at 687–88.
48
   The court requested argument on whether asserting a violation of Sixth Amendment rights alone
was enough to satisfy 61(i)(5) and overcome the procedural bars. The court concluded that merely
invoking the Sixth Amendment did not satisfy Rule 61(i)(5). Rather, the movant must allege



                                                12
       (17) First, the court found that Cole’s claim that his counsel were ineffective

for failing to communicate with him did not state a colorable claim under

Rule 61(i)(5), because he could not establish prejudice. On appeal, Cole’s only

assertion of prejudice is that his counsel’s failure to communicate “put him at a

significant disadvantage as he was completely unaware of what was happening with

his case and how to help his attorneys.”49 In his postconviction motion, his claims

of prejudice rely on the assertions that his counsel failed to discuss strategies with

him and that he could have provided his counsel with information about the area the

crime took place and about Travanian Norton’s credibility. But, “[a] defendant must

make specific allegations of actual prejudice and substantiate them.”50 Cole cannot

establish that the strategies or information he could have provided would have

resulted in a different outcome. Thus, his allegations are insufficient to establish

actual prejudice,51 and his claim remains procedurally barred by Rules 61(i)(1)

and (2).

       (18) Next, the Superior Court held Cole’s allegation that his counsel were

ineffective for failing to investigate the crime scene stated a colorable claim. The

court found that his “trial counsel’s failure to visit the scene was less tha[n] what a


“sufficient facts to make out a facially sufficient Sixth Amendment claim.” Opening Br. Ex. A
(Op. at 2).
49
   Id. at 21.
50
   Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
51
   See Getz, 1994 WL 465543, at *11.



                                             13
reasonable attorney would do.”52 In addition, the court found Cole sufficiently

alleged “specific facts which, if true, would show that the witness’s testimony [that]

he saw Cole enter the victims’ home through a second floor window was false.”53

Thus, Cole met the requirements of Rule 61(i)(5) by showing a colorable

constitutional violation. The court considered the claim on the merits but rejected

it, finding Cole could not establish prejudice.

       (19) On appeal, Cole alleges that he was prejudiced because had his counsel

visited the crime scene, they would have discovered that the lighting was poor, that

Norton’s view was blocked by a tall fence, and that Cole could not have climbed

onto the roof. However, as the Superior Court noted, Cole’s counsel thoroughly

cross-examined a state witness about the lighting at the scene, there was a low fence

Norton easily could have seen over, and Cole’s counsel told the jury that climbing

onto the roof was “very difficult” if not “impossible.”54 They also effectively cross-

examined a police witness about the difficulty of climbing onto the roof.55 Thus, the

Superior Court properly found that Cole had not demonstrated that there was a

reasonable probability that the result would have been different had his counsel

visited the crime scene.




52
   Opening Br. Ex. A (Op. at 35).
53
   Id. (Op. at 21).
54
   Id. (Op. at 33).
55
   Id. (Op. at 35–41).


                                          14
       (20) Lastly, Cole argues his counsel were ineffective for failing to

investigate witness Gary Lloyd, who told the police that his cellmate had confessed

to the crime. The Superior court found this claim failed to meet the requirements of

Rule 61(i)(5). Trial counsel does not have to interview every possible witness;

“[i]nstead, counsel is simply required to exercise reasonable professional judgment

in deciding whether to interview a witness.”56 As the Superior Court noted, Cole

admitted to the crime, and thus his counsel knew the alleged confession was false

and were not ineffective for declining to investigate Lloyd.57

       NOW, THEREFORE, it is hereby ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                                     BY THE COURT:

                                                     /s/ Collins J. Seitz, Jr.
                                                            Justice




56
   State v. Jackson, 2014 WL 4407844, at *7 (Del. Super. Sept. 3, 2014), aff’d, 124 A.3d 1015
(Del. 2015) (quoting Lewis v. Mazurkiewicz, 915 F.2d 106, 113 (3d Cir. 1990)).
57
   Opening Br. at Ex. A. (Op. at 90–91); see also Del. R. Prof. C. 3.3(A)(3) (“A lawyer shall not
knowingly: . . . (3) offer evidence that the lawyer knows to be false.”); Yarborough v. Gentry, 540
U.S. 1, 8 (2003) (“When counsel focuses on some issues to the exclusion of others, there is a strong
presumption that he did so for tactical reasons rather than through sheer neglect.”).


                                                15
