ORDER
After careful consideration of the parties' briefs and the record on appeal, it appears to the Court that:
(1) The appellant, Brian Wilson,1appeals from a Superior Court order denying his motion for postconviction relief under Superior Court Criminal Rule 61. In his Rule 61 motion, Wilson asserted that his trial counsel was ineffective, alleged that the State violated his due process rights, contended that newly discovered evidence warranted a new trial, and requested an evidentiary hearing. The Superior
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Court denied all relief sought in the motion. Wilson appealed to this Court. For the reasons stated below, we affirm.
(2) In the summer of 2016, Wilson planned to attend a high-stakes dice game.2Allen Cannon—Wilson's neighbor and longtime acquaintance—learned of Wilson's plan to attend and that Wilson would have $10,000 in his possession. Cannon decided to use the dice game to collect money that Wilson owed him. Cannon instructed his nephew, Artie Pratt, to attend the dice game and rob Wilson.
(3) The robbery did not go as planned. Pratt attempted to rob Wilson but failed. Wilson was angry that Cannon and Pratt tried to rob him and decided to retaliate. That same night, Wilson contacted his friend, Robert Teat, and asked him to arrange for someone to kill Cannon. Teat contacted Eric Ray, who agreed to kill Cannon for $10,000.3The next day, Ray shot and killed Cannon.4
(4) The police arrested Wilson and charged him with first-degree murder, first-degree conspiracy, and first-degree criminal solicitation.5Wilson retained trial counsel ("Counsel"). Before trial, Counsel advised the court that he previously
2 App. to Appellant's Opening Br. at A9 [hereinafter A_] (Trial Tr. dated Jan. 13, 2020, at 5:14-
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represented one of the State's proposed witnesses, Stephan DeShields.6Counsel asserted that the prior attorney-client relationship created a conflict of interest that precluded him from cross-examining DeShields on Wilson's behalf.
(5) The State planned to call DeShields to lay the foundation for a recorded phone call between DeShields and Wilson that occurred while DeShields was an FBI informant.7The State considered Wilson's statements during the call as admissions to his involvement in Cannon's death.8To address Counsel's asserted conflict, the parties agreed that the State would call FBI Agent Shawn Haney instead of DeShields. Agent Haney had set up the wiretap that recorded the phone call, and the State believed that he could lay the necessary foundation for admitting the recording.9At trial, the Superior Court admitted the recording into evidence during Agent Haney's testimony.
(6) In addition to Agent Haney, the State presented testimony from four jailhouse witnesses: Daniel Baker, Robert Shepherd, Jaquan Brown, and Keith Blalock. Each testified that he heard Wilson bragging about hiring Ray to kill
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Cannon.10At the time of Wilson's trial, each jailhouse witness faced federal criminal charges.11The State did not disclose to Counsel whether the witnesses received reduced sentences for testifying against Wilson. Each witness testified, however, that no one had promised him a reduced sentence, though each hoped his cooperation would lead to that result.
(7) The State also introduced: (i) text messages from Artie Pratt's cellphone; (ii) testimony from Cannon's sister, Tomika Tate, about what Cannon told her about the attempted robbery before his death; (iii) text messages between Teat and Ray; and (iv) a photograph of Teat holding stacks of cash that the State alleged he used to pay Ray. Counsel did not object to this evidence.
(8) The jury convicted Wilson on all charges, and he appealed. On direct appeal, Wilson argued, among other things, that the trial court erred in admitting Pratt's text messages.12We agreed that admitting those messages was error but held that the error was harmless. We found that the State had presented "extensive"
evidence against Wilson - including "admissible text messages from [Teat's] phone
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sent the day after Cannon's murder . . . [and] a picture of [Teat] holding a large amount of cash."13We therefore affirmed Wilson's convictions.14
(9) While Wilson's direct appeal was pending, Eric Ray pleaded guilty to manslaughter in connection with Cannon's death. In his plea colloquy, Ray admitted that he recklessly, rather than intentionally, killed Cannon.15The Superior Court accepted Ray's guilty plea.16
(10) In November 2022, ten months after we affirmed Wilson's convictions, he filed a motion for post-conviction relief under Superior Court Rule 61, seeking relief from judgment and a new trial. Wilson asserted seven grounds for relief, including three claims of ineffective assistance of counsel; he also requested an evidentiary hearing.17The trial court directed Counsel to submit an affidavit to address the ineffective-assistance claims.18After reviewing the record and the
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parties' submissions, the Superior Court denied the motion without holding a hearing.
(11) Wilson now appeals and raises four issues. First, he alleges that Counsel was ineffective by laboring under a conflict of interest and by failing to object to evidence Wilson contends was inadmissible. Second, he argues that the State violated his due process rights by failing to disclose agreements between the jailhouse witnesses and the federal government and by allowing those witnesses to testify falsely about whether those agreements existed. Third, he argues that Ray's manslaughter plea qualifies as newly discovered evidence, warranting a new trial. Fourth and finally, Wilson contends that the Superior Court abused its discretion by not holding an evidentiary hearing.
(12) This Court reviews the Superior Court's denial of a motion for postconviction relief for abuse of discretion.19"We will not disturb the factual findings of the Superior Court as long as they are based on competent evidence and not clearly erroneous."20We review legal or constitutional questions, including claims of ineffective assistance of counsel, de novo.21Under the "well-worn standards" of Strickland v. Washington, to prevail on a claim of ineffective
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assistance of counsel, a defendant must demonstrate that (i) his defense counsel's representation fell below an objective standard of reasonableness, and (ii) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.22"The Court considers the procedural requirements of Rule 61 before addressing substantive issues. Ineffective-assistance claims raised in a timely first postconviction proceeding generally are not procedurally barred."23
(13) Wilson first argues that Counsel was ineffective because a conflict of interest prevented him from cross-examining DeShields and thus deprived Wilson of the opportunity to confront him. Wilson cites our decision in Purnell v. State24 for the proposition that Counsel's decision to preclude DeShields from taking the stand was "a course of action that . . . [impacted] the heart of [his] defense" because DeShields allegedly possessed exculpatory information.25
(14) Because DeShields was Counsel's former client, Delaware Lawyers' Rules of Professional Conduct Rule 1.9(a) is implicated. It provides, in relevant part, that:
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A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.26
In short, a lawyer may not use information learned while representing a former client against that client to benefit a current one in the same or a substantially related case.27
(15) A conflict of interest can support an "actual ineffectiveness claim"
under Strickland,28but Wilson's reliance on Purnell for this proposition is misplaced. Before we address that, however, we briefly explain Purnell. There, Purnell's defense counsel had an actual conflict that violated Purnell's Sixth Amendment right to effective assistance of counsel.29Purnell wanted to argue that his defense counsel's former client actually committed the crime, but defense counsel could not pursue that theory without violating his duties to his former client.30We held that this divided loyalty foreclosed a viable defense strategy and required reversal.31In doing so, we recognized that although the trial court has discretion in conducting a waiver inquiry, the court must conduct the colloquy with
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the defendant (not defense counsel) to ensure the defendant understands the conflict and its potential impact on his or her defense.32Purnell differs from the present case in at least two material ways.
(16) First, Wilson has not shown that Counsel had an actual conflict. Nothing in the record suggests that Counsel used, or refrained from using, information from the prior representation in a way that materially affected Wilson's defense. Nor is there any indication that Counsel represented DeShields in a matter that was "the same or substantially related to" Wilson's case.33Counsel appropriately raised the issue before the trial court, but on the record before us, we see no reason why Counsel's cross-examination would have been impaired had DeShields testified. In any event, the jury heard the substance of DeShields' anticipated testimony through the recorded phone call. The call was not clear as to whether Wilson was confessing to the crime, and Counsel could have confirmed that point with Agent Haney or argued it in closing.
(17) Second, even if we were to assume Counsel was conflicted, Wilson's claim falls well short of the showing required by Purnell. There, the defendant proffered substantial "new" evidence that his counsel could not ethically pursue - including ballistic proof, recantations, and impeachment material - against the
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backdrop of an already thin case.34Wilson, by contrast, only points to the possibility that DeShields would have testified that Wilson "never admitted involvement" in the murder-for-hire plot.35Even if that testimony could be characterized as exculpatory, it does not overcome the burden of showing that the evidence would probably change the result at a new trial.36Moreover, we concluded on direct appeal that the trial evidence of Wilson's guilt was "overwhelming, well corroborated, and credible."37
(18) Our analysis could stop there. We note, however, that the Superior Court addressed the perceived conflict with great care. Before trial, the court held a hearing to discuss the conflict issue with both parties. In the Rule 61 proceedings below, the court also directed Counsel to submit an affidavit addressing Wilson's ineffective-assistance claims, in which Counsel stated that Wilson "was fully aware of the conflict and expressed no issue[,] in fact believing [Counsel]'s knowledge of
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DeShields's past would help."38After considering the record and the submissions, the court found that Wilson knowingly and voluntarily waived his right to conflict- free counsel.39We re-affirm that when counsel has an actual conflict, the court must conduct a conflict-waiver colloquy with the defendant.40No such colloquy was required here, however, because Counsel was not laboring under an actual conflict.
(19) Wilson argues next that Counsel was ineffective by failing to object to
(i) communications between Ray and Teat, (ii) text messages from Pratt's cell phone,
(iii) a photograph of Teat holding stacks of cash, and (iv) portions of Tomika Tate's testimony. We addressed the first three categories on direct appeal and held that the texts between Teat and Ray, including a picture of Teat holding stacks of cash, were admissible, and that the contents from Pratt's phone were inadmissible but the error was harmless. Counsel was not ineffective for failing to object to the texts between Ray and Teat and the photograph, since that evidence was admissible. As to the contents of Pratt's phone, Wilson cannot succeed on Strickland's prejudice prong because we previously held that the State presented extensive evidence that was
"more than sufficient to sustain Wilson's conviction" without the contents of Pratt's
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phone.41We therefore address only Wilson's contention that Counsel was ineffective for failing to object to portions of Tate's testimony.
(20) At trial, Tate testified that, before his death, Cannon told her about the dice game and his involvement in the attempted robbery. Cannon's statements to Tate were admissible under D.R.E. 804(b)(3) as statements against interest by an unavailable declarant.42Because the testimony was admissible, Counsel acted reasonably in declining to object to it.43Wilson fails to satisfy Strickland's performance prong, and we therefore need not address prejudice.44
(21) Wilson also argues the State disregarded its Brady obligations by failing to disclose cooperation agreements between the jailhouse witnesses and the federal government. To establish a Brady violation, the defendant must show that:
"(i) evidence exists that is favorable to the accused, because it is either exculpatory or impeaching; (ii) that evidence is suppressed by the state; and (iii) its suppression prejudices the defendant."45
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(22) This claim is procedurally barred under Rule 61(i)(3). Wilson did not raise it in the proceedings below or on direct appeal, and he has shown neither cause for the default nor prejudice.46But the claim also fails on the merits. Wilson's theory is that the State allowed the jailhouse witnesses to testify falsely that they had not received promises of reduced sentences in exchange for their testimony.47But he has offered us no record supporting the existence of any undisclosed agreements.48
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(23) Wilson next claims that Ray's guilty plea to manslaughter constitutes newly discovered evidence entitling him to a new trial. Wilson contends that Ray's plea to reckless manslaughter establishes that Ray lacked the requisite mens rea for first-degree murder, and therefore Wilson too lacked that mens rea. This contention is unpersuasive. Ray's mens rea when he shot Cannon is irrelevant to Wilson's mens rea when he contacted Ray through Teat to kill Cannon.49And even if that were not the case, Ray's guilty plea does not qualify as "newly discovered evidence" because it did not exist at the time of Wilson's conviction.50"In order for evidence to qualify as 'newly discovered evidence,' it must have been 'in existence and hidden at the time of judgment[.]'"51Wilson was convicted by a jury in January 2020, and Ray entered the guilty plea in October 2021. Thus, Ray's guilty plea did not exist when Wilson was convicted at trial.
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(24) Finally, Wilson argues the Superior Court abused its discretion by denying him a Rule 61 evidentiary hearing. We disagree. "It is within the discretion of the Superior Court to determine whether an evidentiary hearing is necessary in order to decide a motion for postconviction relief."52This Court affords substantial deference to the trial judge's decision whether to grant a hearing.53Here, the trial court acted within its discretion in denying Wilson's motion based on the record and the parties' affidavits.54
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ N. Christopher Griffiths Justice