IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ID No. 1806012537
) In and for Kent County
vV. )
) RK18-07-0252-01 Rape 4" (F)
TYRONE EVANS, ) RK18-07-0253-01 USC 2™ (F)
)
Defendant. )

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Kathleen A. Dickerson, Esq., Deputy Attorney General, Department of Justice, for the
State of Delaware.

Tyrone Evans, Pro se.

FREUD, Commissioner
February 20, 2020

The defendant, Tyrone Evans, (“Evans”), pled no contest on January 30, 2019
to one count of Rape in the Fourth Degree Without Consent, 11 Del. C. §770 and one
Count of Unlawful Sexual Contact in the Second Degree, 11 Del. C. § 768. He was
also facing an additional count of Rape in the Fourth Degree, two counts of Sexual
Abuse of a Child, an additional count of Unlawful Sexual Contact in the Second
Degree, one count of Child Sexual Abuse and one count of Indecent Exposure in the

Second Degree. As part of the plea deal the State agreed to enter nolle prosequis on
the remaining charges and along with the defense requested a pre-trial services
investigation. On April 24, 2019 the Court sentenced Evans to a total of eighteen
years at Level V incarceration suspended after two and a half years for varying levels
of probation. Evans was also given credit for time served. Had Evans gone to trial
and been found guilty as charged he faced a substantial amount of time due to the
State’s plan to proceed against him as an habitual offender if convicted on all counts.
Evans did not appeal his conviction or sentence to the State Supreme court. Instead
Evans filed several motions to withdraw his plea prior to his sentencing which were
denied by this Court. Next Evans filed the pending motion for postconviction relief
pursuant to Superior Court Criminal Rule 61 on June 17, 2019 in which he alleges,
in part, ineffective assistance of counsel.
FACTS

The following are the facts as outlined by the State in the Reply to Evans’s
motion and documented by accompanying exhibits including the police report
attached to the reply.

Evans was arrested on June 18, 2018 and subsequently
charge by indictment with two counts of Sexual Abuse of
a Child by a Person in a Position of Trust, Authority, or
Supervision in the First Degree, violations of 11 Del. C. §
778(1), two counts of Rape Fourth Degree, violations of 11
Del. C. § 770, two counts of Unlawful Sexual Contact
Second Degree, a violation of 11 Del. C. § 768, one count
of Sexual Abuse of a child by a Person in a Position of
Trust, Authority, or Supervision Second Degree, a
violation of 11 Del. C. § 778; and one count of Indecent
Exposure, a violation of 11 Del. C. § 764. The charges
arose after L.W., a 16-year old disclosed to her
grandmother that the grandmother’s 54-year old boyfriend,
Evans, had “raped” her.
On June 18, 2018, L.W. was taken to Kent General
Hospital for a Sexual Assault Nurse Examiner (“SANE”)
examination. While she waited for the procedure,
Detective Dale Boney of the Dover Police Department
interviewed her. She told the detective that the previous
evening Evans exposed his penis to her, touched her breast
and told her that she had “a nice body.” At some point
L.W. touched his penis. L.W. recounted that at about 1
a.m. on June 18, Evans entered her bedroom and had
sexual intercourse with her. After the interview, a forensic
examination was conducted on L.W. and swabs were
obtained from her genital area for DNA analysis. During
the exam L.W. told the forensic nurse examiner about the
sexual acts that Evans had engaged with her, including
penile-vaginal intercourse and cunnilingus.

Following the initial disclosure and treatment at Kent
General Hospital, L.W. was interviewed at the Children’s
Advocacy Center. During this interview she recanted and
stated that she had lied about “pop pop” having sex with
her. She later told the State that she recanted because she
felt that her grandmother did not believe her and without
her grandmother’s support she did not see the value in
proceeding with the case.

Evans denied having inappropriate sexual relations with
L.W and consented to the collection of a DNA buccal
swab.

L.W.’s swabs and Evans’s buccal swab were examined by
a forensic analyst at the Division of Forensic Science. A
swab from L.W.’s vagina was found to contain Evans’s
DNA profile. The analyst determined that the probability
of randomly selecting an individual unrelated to Evans
with the DNA profile from L.W.’s vagina was 1 in 7
trillion.!

EVANS’S CONTENTIONS
Next, Evans filed the instant Motion for Postconviction Relief pursuant to
Superior Court Rule 61. In his motion, he raises the following grounds for relief:

Ground one: Ineffective assistance of counsel.
My lawyer never set up a defense for
my case, my lawyer never asked for the
proper medical (examiners) report all
my lawyer kept producing was plea
bargains.

Ground two: My lawyer never ask for evidence to
prove my guilt.
I had told my lawyer that I wanted to
take my case to trial. Counsel kept
saying I wouldn’t win at trial, but there
was never any evidence and I’ve also
asked counsel where did the State get
my DNA if there was never a medical
(examiners) report.

Ground three: My lawyer never once try to prove my
innocence.
I’ve told my lawyer that I never did
anything to the victim I’ve been dating
the victims grandmother for 4 yrs, plus
she gave a statement to Dover Police
Detective Boney that I never touched

her.

Ground four: My lawyer did not try to defend me
plus she was also representing another

 

' State v. Evans, Del. Super., I.D. No. 1806012537, D.I. 47.

4
defendant with the same case with the
same victim with the same charge I do
believe there was a conflict of interest.

The grounds above represent all of Evans’s claims. He did not file a

Memorandum of Law.
DISCUSSION

Under Delaware law, this Court must first determine whether Evans has met
the procedural requirements of Superior Court Criminal Rule 61(i) before it may
consider the merits of his postconviction relief claim.’ This is Evans’s first motion
for postconviction relief, and it was filed within one year of his conviction becoming
final. Therefore, the requirements of Rule 61(i)(1) - requiring filing within one year
and (2) - requiring that all grounds for relief be presented in initial Rule 61 motion,
are met. None of Evans’s claims were raised at the plea, sentencing, or on direct
appeal. Therefore, they are barred by Rule 61(i)(3), absent a demonstration of cause
for the default and prejudice. Each of Evans’s grounds for relief are based on
ineffective assistance of counsel; therefore, he has alleged cause for his failure to
have raised the claims earlier.

At this point, Rule 61(i)(3) does not bar reliefas to Evans’s grounds for relief,
provided he demonstrates that his counsel was ineffective and that he was prejudiced
by counsel’s actions. To prevail on his claim of ineffective assistance of counsel,
Evans must meet the two-prong test of Strickland v. Washington.’ In the context of
a guilty plea challenge, Strickland requires a defendant show: (1) that counsel's

representation fell below an objective standard of reasonableness; and (2) that

 

? Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

3 466 U.S. 668 (1984).
counsel's actions were prejudicial to him in that there is a reasonable probability that,
but for counsel's error, he would not have pled guilty and would have insisted on
going to trial and that the result of a trial would have been his acquittal.’ The failure
to establish that a defendant would not have pled guilty and would have proceeded
to trial is sufficient cause for denial of relief.° In addition, Delaware courts have
consistently held that in setting forth a claim of ineffective assistance of counsel, a
defendant must make concrete allegations of actual prejudice and substantiate them
or risk summary dismissal.° When examining the representation of counsel pursuant
to the first prong of the Strickland test, there is a strong presumption that counsel's
conduct was professionally reasonable.’ This standard is highly demanding.®
Strickland mandates that, when viewing counsel's representation, this Court must
endeavor to “eliminate the distorting effects of hindsight.”

Following a complete review of the record in this matter, it is abundantly clear
that Evans has failed to allege any facts sufficient to substantiate his claim that his
attorney was ineffective. I find trial counsel’s affidavit, in conjunction with the

record, more credible that Evans’s self-serving claims that his counsel’s

 

4 Td. at 687.

> Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53, 60
(Del. 1988))(citations omitted).

° See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner vy. State, 1995 WL
466465 at *1 (Del. Supr.)).

’ Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).

* Flamer vy. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477 US.
365, 383 (1986)).

* Strickland, 466 U.S. at 689.
representation was ineffective. Evans’s counsel clearly denies the allegations.

Evans was facing the possibility of substantial time in prison had he been
convicted. The sentence and plea were very reasonable under all the circumstances,
especially in light of the overwhelming DNA evidence against him. Prior to the entry
of the plea, Evans and his attorney discussed the case. The plea bargain was clearly
advantageous to Evans. Counsel was successful in negotiating a beneficial plea
bargain with the State. Counsel’s representation was certainly well within the range
required by Strickland. Additionally, when Evans entered his no contest plea, he
stated he was satisfied with defense counsel’s performance. He is bound by his
statement unless he presents clear and convincing evidence to the contrary.'°
Consequently, Evans has failed to establish that his counsel’s representation was
ineffective under the Strickland test.

Even assuming, arguendo, that counsel’s representation of Evans was
somehow deficient, Evans must satisfy the second prong of the Strickland test,
prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant
must make concrete allegations of actual prejudice and substantiate them or risk
dismissal.'' In an attempt to show prejudice, Evans simply asserts that his counsel
was ineffective. His statements are insufficient to establish prejudice, particularly in
light of the evidence against him. Therefore, I find Evans’s grounds for relief are
meritless.

To the extent that Evans alleges his plea was involuntary, the record contradicts

 

'° Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan vy. State, 636 A.2d 931,
937-938 (Del. 1994)).

'' Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552, 556
(Del. 1990)).
such an allegation. When addressing the question of whether a plea was
constitutionally knowing and voluntary, the Court looks to a plea colloquy to
determine if the waiver of constitutional rights was knowing and voluntary.” At the
guilty-plea hearing, the Court asked Evans whether he understood the nature of the
charges, the consequences of his pleading no contest, and whether he was voluntarily
entering the no contest plea. The Court asked Evans if he understood he would waive
his constitutional rights if he entered the no contest plea including the right to
suppress evidence; if he understood each of the constitutional rights listed on the
Truth-in-Sentencing Guilty Plea Form (“Guilty Plea Form”); and whether he gave
truthful answers to all the questions on the form. The Court asked Evans if he had
discussed the his plea and its consequences fully with his attorney. The Court asked
Evans if he was entering into the plea because the State had sufficient evidence to
convict him as charged. The Court also asked Evans if he was satisfied with this
counsel’s representation. Evans answered each of these questions affirmatively.’
I find counsel’s representations far more credible than Evans’s self-serving, vague
allegations.

Furthermore, prior to entering his no contest plea, Evans signed a Guilty Plea
Form and Plea Agreement in his own handwriting. Evans’s signatures on the forms
indicate that he understood the constitutional rights he was relinquishing by pleading
guilty and that he freely and voluntarily decided to plead guilty to the charges listed

in the Plea Agreement. Evans is bound by the statements he made on the signed

 

'° Godinez v. Moran, 509 U.S. 389, 400 (1993).
° State v. Evans, Del. Super., ID No. 1806012537 (Jan. 30, 2019) Tr. at 2-7.

8
Guilty Plea Form, unless he proves otherwise by clear and convincing evidence.'* I
confidently find that Evans entered his no contest plea knowingly and voluntarily and
that Evans’s grounds for relief are completely meritless.
CONCLUSION

I find that Evans’s counsel represented him in a competent and effective
manner and that Evans has failed to demonstrate any prejudice stemming from the
representation. I also find that Evans’s no contest plea was entered knowingly and
voluntarily. I recommend that the Court deny Evans’s motion for postconviction
relief as procedurally barred and completely meritless pursuant to Superior Court

Criminal Rule 61(i)(3).

/s/ Andrea M. Freud
Commissioner

AMF/dsc

 

4 Sommerville, 703 A.2d at 632.
