               IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANTONE V. PHILLIPS,                        §
                                           §
          Defendant Below-                 §   No. 335, 2014
          Appellant,                       §
                                           §
          v.                               §   Court Below—Superior Court
                                           §   of the State of Delaware,
STATE OF DELAWARE,                         §   in and for Kent County
                                           §   Cr. ID No. 0901011770
          Plaintiff Below-                 §
          Appellee.                        §

                              Submitted: July 31, 2014
                              Decided: September 16, 2014

Before HOLLAND, RIDGELY, and VALIHURA, Justices.

                                       ORDER

          This 16th day of September 2014, upon consideration of the appellant’s

opening brief, the appellee’s motion to affirm, and the record below, it appears to

the Court that:

          (1)    The appellant, Antone V. Phillips, filed this appeal from the Superior

Court’s May 28, 2014 order summarily dismissing his second motion for

postconviction relief. The State of Delaware has filed a motion to affirm the

judgment below on the ground that it is manifest on the face of Phillips’ opening

brief that his appeal is without merit.1 We agree and affirm.


1
    Supr. Ct. R. 25(a).
         (2)     The record reflects that, in January 2009, Phillips was arrested for

raping two of his younger half-sisters (“NB” and “EB”).2 In March 2009, a grand

jury indicted Phillips for five counts of Rape in the First Degree, two counts of

Rape in the Second Degree, Continuous Sexual Abuse of a Child, Dangerous

Crime Against a Child, and two counts of Incest. On September 3, 2009, Phillips

pled guilty to one count of Rape in the Second Degree in exchange for the State

entering a nolle prosequi on the remaining charges and recommending twenty-five

years of Level V incarceration, suspended after fifteen years for decreasing levels

of supervision. The Superior Court sentenced Phillips to twenty-five years of

Level V incarceration, suspended after fifteen years for decreasing levels of

supervision. The Superior Court found that a sentence exceeding the sentencing

guidelines was appropriate because there were multiple victims and Phillips had a

prior rape conviction. Phillips did not file a direct appeal.

         (3)     On March 1, 2010, Phillips filed his first motion for postconviction

relief. Phillips claimed his counsel was ineffective because he failed to file a direct

appeal.        After receiving affidavits from Phillips’ counsel, a Superior Court

commissioner concluded that Phillips’ ineffective assistance of counsel claim

lacked merit and recommended denial of the postconviction motion. The Superior



2
    Pseudonyms have been assigned to the victims under Supreme Court Rule 7(d).

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Court adopted the recommendation and denied Phillips’ first motion for

postconviction relief. Phillips did not appeal the Superior Court’s order.

         (4)     On May 15, 2014, Phillips filed his second motion for postconviction

relief, again alleging ineffective assistance of counsel. On May 28, 2014, the

Superior Court found that Phillips’ second motion for postconviction relief was

procedurally barred under Superior Court Criminal Rule 61(i) (“Rule 61”) and

summarily dismissed the motion. This appeal followed.

         (5)     On appeal, Phillips claims that: (i) his counsel was ineffective because

he failed to discover that Phillips had a defense under 11 Del. C. § 762(d) and he

incorrectly informed Phillips that the age of his half-sisters meant they could not

consent to sexual activity with Phillips; and (2) he should be permitted to withdraw

his guilty plea due to his counsel’s ineffective assistance.

         (6)     This Court reviews the Superior Court’s denial of postconviction

relief for abuse of discretion and questions of law de novo.3 The procedural

requirements of Rule 61(i) must be considered before any substantive issues are

addressed.4 In this case, Phillips’ claims are untimely under Rule 61(i)(1)5 and



3
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
4
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).
5
  Super. Ct. Crim. R. 61(i)(1) (barring postconviction motion filed more than one year after
judgment of conviction is final).

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repetitive under Rule 61(i)(2).6 To avoid application of the Rule 61(i) procedural

bars, Phillips appears to contend that review of his claims is warranted “in the

interest of justice”7 or because there was a “miscarriage of justice.”8

          (7)    To establish a claim of ineffective assistance in the context of a guilty

plea, a defendant must show that: (i) his counsel’s conduct fell below an objective

standard of reasonableness; and (ii) there is a reasonable probability that but for

counsel’s errors, he would not have pled guilty and would have insisted on

proceeding to trial.9          A defendant must substantiate a claim of ineffective

assistance with concrete allegations of cause and actual prejudice or else risk

summary dismissal.10

          (8)    Phillips’ ineffective assistance of counsel claims are based on his

contention that his counsel should have discovered and informed him that he had a

defense under 11 Del. C. § 762(d). Section 762(d) provides:


6
 Super. Ct. Crim. R. 61(i)(2) (barring any ground for relief not asserted in prior postconviction
motion).
7
  Super Ct. Crim. R. 61(i)(2) (providing that repetitive claim can be reviewed in interest of
justice).
8
  Super. Ct. Crim. R. 61(i)(5) (providing that barred claims can be reviewed if there is colorable
claim of miscarriage of justice due to constitutional violation that undermined fairness of
proceedings).
9
    Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Allbury v. State, 551 A.2d 53, 59 (1988).
10
  Chattin v. State, 2012 WL 5844886, at *2 (Del. Nov. 16, 2012); Younger v. State, 580 A.2d at
556.

                                                  4
          Teenage defendant.--As to sexual offenses in which the victim's age is
          an element of the offense because the victim has not yet reached that
          victim’s sixteenth birthday, where the person committing the sexual
          act is no more than 4 years older than the victim, it is an affirmative
          defense that the victim consented to the act “knowingly” as defined in
          § 231 of this title. Sexual conduct pursuant to this section will not be
          a crime. This affirmative defense will not apply if the victim had not
          yet reached that victim’s twelfth birthday at the time of the act.11

“[W]here the alleged error of counsel is a failure to advise the defendant of a

potential affirmative defense to the crime charged, the resolution of the ‘prejudice’

inquiry will depend largely on whether the affirmative defense likely would have

succeeded at trial.”12

          (9)    Phillips fails to show that a Section 762(d) defense likely would have

succeeded at trial. First, Section 762(d) was not applicable to any sexual acts that

occurred before Phillips’ half-sisters reached their twelfth birthdays. Some of the

charges against Phillips (including one count of Rape in the Second Degree) arose

from an act that may have occurred before EB turned twelve. Second, Section

762(d) is an affirmative defense. Phillips would have borne the burden of proving

by a preponderance of the evidence that his younger half-sisters knowingly

consented to engaging in sexual conduct with him.13 Phillips fails to identify

11
     11 Del. C. § 762(d).
12
     Hill v. Lockhart, 474 U.S. at 59 (citing Evans v. Meyer, 742 F.2d 371, 375 (7th Cir.1984)).
13
  11 Del. C. § 304(a) (“When a defense declared by this Criminal Code or by another statute to
be an affirmative defense is raised at trial, the defendant has the burden of establishing it by a
preponderance of the evidence.”).

                                                  5
anything suggesting that he could have satisfied this burden of proof. Phillips

obtained a substantial benefit by pleading guilty, instead of facing trial on multiple

counts of rape. Under these circumstances, Phillips has not shown that review of

his claims is warranted in the interest of justice or because there was a miscarriage

of justice. Accordingly, the Superior Court did not err in dismissing Phillips’

second motion for postconviction relief.

      NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED

and the judgment of the Superior Court is AFFIRMED.

                                       BY THE COURT:



                                       /s/ Randy J. Holland
                                              Justice




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