         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 DASHAWN AYERS,                           §
                                          §
       Defendant Below-                   §   No. 585, 2016
       Appellant,                         §
                                          §
       v.                                 §   Court Below—Superior Court
                                          §   of the State of Delaware
 STATE OF DELAWARE,                       §
                                          §   Cr. ID 1208001950 (K)
       Plaintiff Below-                   §
       Appellee.                          §

                           Submitted: April 20, 2017
                           Decided:   June 23, 2017

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

                                  ORDER

      This 23rd day of June 2017, upon consideration of the appellant’s opening

brief, the State’s motion to affirm, and the record below, it appears to the Court that:

      (1)    The appellant, Dashawn Ayers, filed this appeal from the Superior

Court’s denial of his motion for postconviction relief. The State has filed a motion

to affirm the judgment below on the ground that it is manifest on the face of Ayers’

opening brief that his appeal is without merit. We agree and affirm.

      (2)    A Superior Court jury convicted Ayers in October 2013 of Drug

Dealing, Aggravated Possession, and Conspiracy in the Second Degree. Among

other issues, Ayers argued on direct appeal that the Superior Court erred in allowing

wiretap recordings into evidence because the tapes violated his constitutional right
to confront witnesses and because the trial court failed to follow the proper procedure

under Delaware Uniform Rule of Evidence (“DRE”) 801(d)(2)(E) before admitting

the evidence. We rejected these arguments and others and affirmed the Superior

Court’s judgment.1 But, we remanded the matter for the Superior Court to merge

Ayers’ convictions for Drug Dealing and Aggravated Possession for sentencing

purposes and to resentence him accordingly.2

       (3)    Ayers filed a motion for postconviction relief on June 1, 2015. The

Superior Court appointed counsel to represent him, but later granted counsel’s

motion to withdraw under Superior Court Criminal Rule 61(e)(6).3 Ayers’ motion

and supporting papers raised various claims of error related to the testimony of

Special Agent Jeffrey Dunn, who testified, in part, about the meaning of certain slang

expressions heard on the wiretap recordings that were played for the jury. The

Superior Court denied Ayers’ motion, finding some of his claims procedurally

barred and others meritless. This appeal followed.

       (4)    Ayers raises four claims in his opening brief on appeal. He claims both

his trial counsel and his appellate counsel were ineffective for failing to challenge

the admission of Dunn’s testimony under DRE 403 and 702. He further contends



1
  Ayers v. State, 97 A.3d 1037 (Del. 2014).
2
  Id. at 1041.
3
  Rule 61(e)(6) permits appointed postconviction counsel to file a motion to withdraw if counsel
finds that the defendant has no substantial ground for postconviction relief and counsel cannot
ethically advocate on the defendant’s behalf.
                                               2
that appellate counsel was ineffective for failing to challenge the Superior Court’s

ruling that the State did not violate its discovery obligations when it did not

specifically identify Dunn as its proposed expert and that he would be opining on

the meaning of slang words. Ayers also contends that appellate counsel was

ineffective for failing to argue that the Superior Court erred in allowing the wiretap

evidence in under DRE 801(d)(2)(E). Finally, Ayers contends that his counsel was

ineffective for failing to appeal his resentencing, which violated double jeopardy

principles.

       (5)     Ayers’ double jeopardy claim was not raised in the motion he filed in

the Superior Court. Thus, our review of this belated claim is barred unless Ayers

can establish plain error,4 which we do not find. On direct appeal, we explicitly held

that there was no merit to Ayers’ double jeopardy claim regarding his separate drug

convictions. Nonetheless, we remanded to the Superior Court to merge those

convictions for sentencing purposes,5 which the Superior Court did. There was no

basis for counsel to appeal Ayers’ resentencing.

       (6)     With respect to Ayers’ other claims, this Court reviews the Superior

Court’s denial of postconviction relief for an abuse of discretion.6 To the extent the

parties raise questions of law or constitutional violations, they will be reviewed de


4
  Del. Supr. Ct. R. 8.
5
  Ayers v. State, 97 A.3d at 1041.
6
  State v. Reyes, 155 A.3d 331, 339 (Del. 2017).
                                                   3
novo.7 But, this Court must first consider the procedural requirements of Rule 61

“before addressing the merits of claims made in postconviction proceedings.”8

       (7)     Rule 61(i)(4) provides that “any ground for relief that was formerly

adjudicated … is thereafter barred.”9 Ayers’ claim that the wiretap evidence should

not have been admitted under DRE 801(d)(2)(E) was raised and rejected by this

Court on appeal.10 His assertion that appellate counsel failed to raise this argument

on direct appeal is simply incorrect. We do not need to reconsider the underlying

merits of this previously adjudicated claim.

       (8)     Ayers’ remaining claims are related. He alleges that both his trial

counsel and appellate counsel were ineffective for not challenging the admissibility

of Dunn’s expert testimony because it constituted a discovery violation and violated

DRE 702 and 403. To prevail on an ineffective assistance of counsel claim, Ayers

must establish that: (i) counsel’s representation fell below an objective standard of

reasonableness; and (ii) but for counsel’s unprofessional errors, there is a reasonable

probability that the outcome of the proceeding would have been different.11 A

“reasonable probability” means a probability that is sufficient, considering the



7
  Id.
8
  Wright v. State, 91 A.3d 972, 985 (Del. 2014) (quoting Younger v. State, 580 A.2d 552, 554 (Del.
1990)).
9
  Del. Super. Crim. R. 61(i)(4).
10
   See Ayers v. State, 97 A.3d at 1041.
11
   Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

                                                4
totality of the evidence, to undermine confidence in the outcome. 12 A defendant

must set forth and substantiate concrete allegations of actual prejudice 13 in order to

overcome the “strong presumption” that counsel’s representation was professionally

reasonable.14

          (9)     In this case, the record reflects that Ayers’ trial counsel raised a dual

objection to Dunn’s testimony before Dunn took the stand to testify. Counsel argued

that the State had violated its discovery obligations by failing to identify sufficiently

the subject matter upon which Dunn would testify as an expert. Counsel also argued

that the subject matter of Dunn’s expert testimony, i.e., the meaning of slang

language, was a factual matter that was within the jury’s realm of understanding and

did not require an expert opinion. After listening to counsel’s arguments, the trial

judge concluded that the State had satisfied its discovery obligations and that the

judge was satisfied that the tapes contained words and phrases not commonly

understood by ordinary laypeople.

          (10) Furthermore, the record of Dunn’s expert testimony reflects that it was

based on sufficient data because he had listened to the tapes, that his expert opinion

was the product of reliable principles (namely, his extensive prior experience as a



12
     Id. at 694-95.
13
     Younger v. State, 580 A.2d 552, 556 (Del. 1990).
14
     Strickland v. Washington, 466 U.S. at 689.

                                                  5
drug investigator), and that Dunn applied these principles to interpret for the jury the

coded language used by the coconspirators on the wiretap recordings.15 Under the

circumstances we find no error or abuse in the Superior Court’s decision to allow

Dunn’s expert testimony. The testimony was relevant, and there is no merit to

Ayers’ belated suggestion that the probative value of the testimony was substantially

outweighed by the danger of unfair prejudice or confusion of the issues under DRE

403. Thus, we reject Ayers’ claims that his trial and appellate counsel were

ineffective for failing to challenge the admission of Dunn’s testimony on all of these

grounds.

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

Court is AFFIRMED.

                                        BY THE COURT:
                                        /s/ Leo E. Strine, Jr.
                                        Chief Justice




15
     See Del. Unif. R. Evid. 702.
                                           6
