         IN THE SUPREME COURT OF THE STATE OF DELAWARE

    FRANK DAVENPORT,                            §
                                                §
           Defendant Below–                     §   No. 428, 2018
           Appellant,                           §
                                                §
           v.                                   §   Court Below–Superior Court
                                                §   of the State of Delaware
    STATE OF DELAWARE,                          §
                                                §   Cr. ID 1401014417 (N)
           Plaintiff Below–                     §
           Appellee.                            §

                               Submitted: April 12, 2019
                                Decided: June 17, 2019

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

                                       ORDER

         Upon consideration of the parties’ briefs and the record on appeal, it

appears to the Court that:

         (1)    The appellant, Frank Davenport, filed this appeal from the

Superior Court’s July 24, 2018 memorandum opinion denying his first motion

for postconviction relief. 1 After careful consideration, we find no merit to the

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

         (2)    The record reflects that Davenport entered a no-contest plea to

manslaughter and possession of a firearm during the commission of a felony



1
    State v. Davenport, 2018 WL 3584437 (Del. Super. Ct. July 24, 2018).
on May 27, 2015. In exchange for his plea, the State agreed to cap its

sentencing recommendation at ten years of Level V incarceration. Following

a presentence investigation, the Superior Court sentenced Davenport to

twenty years of Level V incarceration, followed by decreasing levels of

supervision. We affirmed the Superior Court’s sentence on direct appeal. 2

       (3)    Davenport timely moved for postconviction relief under Superior

Court Criminal Rule 61 (“Rule 61”), raising three claims. First, Davenport

claimed that the State’s belated production of a sentencing packet to defense

counsel the day before the sentencing hearing, when it had provided the packet

to the Superior Court eleven days earlier, violated his federal due process

rights. Second, he alleged that the State’s presentation at the sentencing

hearing was “inaccurate, unchallenged, and questionable”3 and also violated

his federal due process rights. Third, Davenport claimed that his lawyers

provided ineffective assistance in connection with the sentencing hearing.

The Superior Court concluded that Davenport’s claims, save his claims of

ineffective assistance of counsel, were barred as either procedurally defaulted

or previously adjudicated.        After considering the merits of Davenport’s




2
  Davenport v. State, 2016 WL 6156170 (Del. Oct. 21, 2016), cert. denied, 137 S. Ct. 1447
(2017).
3
  Mt. for Postconviction Relief, at p. 3 ¶12.


                                           2
ineffective assistance of counsel claims, the Superior Court concluded that

they lacked merit and denied Davenport’s motion. This appeal followed.

       (4)     Davenport now argues that the Superior Court erred in its

application of Rule 61’s procedural default rules and its failure to hold an

evidentiary hearing. He also claims—now for the first time—that his sentence

constitutes cruel and unusual punishment. Finally, Davenport claims to have

uncovered new evidence that casts doubt on the credibility of the forensic

evidence relied upon by the Superior Court in its sentencing decision.

       (5)     The Court reviews the denial of a motion for postconviction

relief for an abuse of discretion. 4 We review constitutional claims, including

ineffective assistance of counsel, de novo.5 The Court must consider the

procedural requirements of Rule 61 before it addresses any substantive claim. 6

       (6)     The main thrust of Davenport’s first two arguments, both of

which challenge the fairness of his sentencing hearing, appears to be that the

Superior Court’s application of Rule 61’s procedural default rules involved an

improper “circular” analysis. That is, Davenport theorizes that it was illogical

for the Superior Court to find both that trial counsel had failed to raise

objections, thereby concluding that his claims were procedurally barred, and,


4
  Urquhart v. State, 203 A.3d 719, 726 (Del. 2019).
5
  Id.; Starling v. State, 130 A.3d 316, 325 (Del. 2015).
6
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).


                                             3
at the same time, find that trial counsel raised appropriate objections in

support of its conclusion that his claims were barred as previously

adjudicated.

       (7)     Postconviction relief is a collateral remedy that provides an

avenue to challenge a conviction that has otherwise become final. 7 It is not a

substitute for a direct appeal.8 Accordingly, Rule 61’s procedural bars must

be considered before the merits of any claim. 9 Here, the Superior Court

properly relied upon two procedural bars in dismissing several of Davenport’s

claims. First, the Superior Court employed counsel’s failure to object to the

State’s alleged improper behavior—including the late delivery of the packet,

the “inflammatory” contents of the packet, and the State’s reference to

Davenport as “homeless”—to defeat Davenport’s claims because those claims

could have been raised at the sentencing hearing. Second, the Superior Court

applied the former adjudication bar to dispose of Davenport’s current claim

that the Superior Court relied on improper aggravators at sentencing because

Davenport argued on direct appeal that the Superior Court considered

improper SENTAC factors at sentencing.




7
  Flamer v. State, 585 A.2d 736, 745 (Del. 1990).
8
  Id.
9
  Id.


                                           4
       (8)     Davenport also argues that the Superior Court should have held

an evidentiary hearing on his Rule 61 motion.10 Under Rule 61(h)(1), the

Superior Court may hold an evidentiary hearing on a postconviction motion

if it determines one would be desirable. 11 We review the Superior Court’s

decision not to hold a hearing for abuse of discretion. 12                 After careful

consideration, we conclude that the Superior Court did not abuse its discretion

in this case.        The judge who considered Davenport’s request for

postconviction relief was the same judge who accepted Davenport’s plea and

sentenced him. In addition, she had been specially assigned to Davenport’s

case since it had been accepted in Superior Court and had seen and read the

parties’ expert reports before sentencing. The record below was sufficient to

permit the Superior Court to consider Davenport’s claims without holding a

hearing.




10
   In connection with this claim, Davenport argues that the Superior Court should have held
a hearing to permit him to challenge the aggravating factors the Superior Court cited in its
sentencing decision. But this Court has already upheld the validity of Davenport’s sentence
and the grounds relied upon by the Superior Court in fashioning Davenport’s sentence.
Davenport, 2016 WL 6156170, at *3 ([T]he Superior Court permissibly exercised its
discretion to base its sentence on an overall assessment of Davenport’s tumultuous
relationship with Wilson and that relationship’s horrific ending.”).
11
    Rule 61(h)(1) (“After considering the motion for postconviction relief, the state’s
response, the movant’s reply, if any, the record of prior proceedings in the case, and any
added materials, the judge shall determine whether an evidentiary hearing is desirable.”).
12
   Harrell v. State, 2018 WL 4049127, at *1 (Del. Aug. 23, 2018).


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         (9)    Turning to Davenport’s substantive claims of ineffective

assistance of counsel, we have carefully considered the record and conclude

that the Superior Court’s consideration of Rule 61’s procedural bars did not

obstruct Davenport’s ability to raise ineffective assistance of counsel claims.

Although the Superior Court found some of Davenport’s claims to be

procedurally barred—because of counsel’s failure to object at the time or due

to counsel’s failure to raise the issue on direct appeal—it thoroughly examined

Davenport’s ineffective assistance of counsel claims under the performance

and prejudice standard established by the United States Supreme Court in

Strickland v. Washington.13

         The Superior Court found, and we agree, that trial counsel made a

reasonable strategic decision to challenge the information contained in the

State’s case summary on its merits as opposed to the admission of the

summary as a whole. The record reflects that counsel effectively responded

to the personal narrative and the forensic information contained in the

summary and argued that the court should not consider these factors in

sentencing. Trial counsel’s decision to challenge the substance of the case

summary was objectively reasonable and, in any event, Davenport cannot

demonstrate he was prejudiced by trial counsel’s strategic decision.


13
     466 U.S. 668, 698-700 (1984).


                                      6
       The Superior Court also correctly held that trial counsel were not

required to consult with Davenport to decide how to respond to the State’s

submission of the case summary. Although a defendant has the ultimate

authority to make certain decisions, an attorney’s duty to consult with his

client does not require that counsel obtain his client’s consent to every tactical

decision.14 We conclude that the Superior Court did not abuse its discretion

in denying Davenport’s ineffective assistance of counsel claims.

       (10) Davenport next alleges that his sentence constitutes cruel and

unusual punishment prohibited by the Eighth Amendment to the United States

Constitution. Because this claim was not properly presented below, this Court

ordinarily will not entertain it.15 Here, the claim is also procedurally barred

under Rule 61(i)(3).16 In order to excuse this procedural bar, Davenport must

show both cause and prejudice.                Although Davenport alleges he can

demonstrate prejudice,17 he has not endeavored to show cause. Finally, and




14
   Florida v. Nixon, 543 U.S. 175, 187 (2004).
15
   Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented
for review; provided, however, that when the interests of justice so require, the Court may
consider and determine any question not so presented.”).
16
   Del. Super Ct. R. 61(i)(3) (“Any ground for relief that was not asserted in the proceeding
leading to the judgment of conviction, as required by the rules of this court, is thereafter
barred, unless the movant shows (A) [c]ause for relief from the procedural default and (b)
[p]rejudice from violation of the movant’s rights.”).
17
   Davenport argues he can demonstrate prejudice to excuse the procedural bar because the
judge considered inadmissible evidence when she sentenced him. However, the Superior
Court is not bound by the rules of evidence in a sentencing proceeding. D.R.E. 1101(b).


                                             7
as noted above, this Court has already upheld the legality of Davenport’s

sentence. For these reasons, we will not consider his Eighth Amendment

claim on the merits.

       (11) Finally, Davenport contends that he has identified new evidence

affecting a State’s forensics expert’s credibility. After the Superior Court

denied Davenport’s motion for postconviction relief, Carl Rone, a firearms

and tool mark examiner for the Delaware State Police, was arrested for theft

by false pretense and falsifying business records.18 Although Davenport did

not—because he could not—raise this claim in his Rule 61 motion, we

nonetheless consider this issue on appeal in the interests of justice. 19

Davenport cites this Court’s decision in Fowler v. State20 in support of his

theory that he is entitled to postconviction relief. But our decision in Fowler

is inapposite. In that case, Fowler went to trial and was found guilty. The

credibility of the ballistics evidence was an important issue at trial. In fact,

during Fowler’s postconviction proceedings, the State relied on the strength



18
   Rone was charged with these offenses for falsifying time sheets.
19
   Del. Supr. R. 8; Brown v. State, 108 A.3d 1201, 1202 (Del. 2015). Davenport also argues
that the credibility of Dr. Vincent Di Maio has been called into question. In support of that
allegation, he cites a change.org petition calling for the revocation of Di Maio’s license.
The existence of this petition is not “new evidence.” Likewise, Davenport argues that
Delaware’s former medical examiner’s credibility has since been called into question. Dr.
Richard Callery pleaded no contest to official misconduct in 2015, before Davenport filed
his motion for postconviction relief in the Superior Court.
20
   194 A.3d 16 (Del. 2018).


                                             8
of the ballistics evidence introduced at trial to excuse the State’s serious

discovery violations. We held, “[w]hen the reliability of [all] of the key

evidence the State used [to establish the defendant’s guilt] has been called into

question, Rule 61 requires setting aside the conviction.” 21 That is not the case

here. Davenport entered a no-contest plea. For all intents and purposes, a no-

contest plea operates as a guilty plea, and Davenport waived certain

constitutional trial and appellate rights by pleading no contest.22 Evidence

that challenges the credibility of a witness constitutes impeachment evidence.

A defendant has no constitutional right to receive impeachment evidence

before deciding to plead guilty or no contest, and Davenport’s knowing,

intelligent, and voluntary no-contest plea waived any right he had to test the

strength of the State’s evidence against him at trial, including the weight of

any firearms evidence.23

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

Superior Court is AFFIRMED.

                                           BY THE COURT:

                                           /s/ Gary F. Traynor
                                             Justice


21
   Id. at 18.
22
   Alexander v. State, 2008 WL 4809624, at *1 (Del. Nov. 5, 2008); State v. Connor, 2005
WL 147931, at * 4 (Del. Super. Ct. Jan. 19, 2005).
23
   See Brown, 108 A.3d at 1202.


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