Warncke v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

RAYMOND WARNCKE, §
§
Defendant Below, § No. 263, 2024
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 2110003724 (K)
§
Appellee. §
§

Submitted: January 24, 2025
Decided: March 24, 2025

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

ORDER

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

to the Court that:

(1) The appellant, Raymond Warncke, has appealed a Superior Court order

adopting a Superior Court Commissioner’s report and denying Warncke’s motion

for postconviction relief under Superior Court Criminal Rule 61. For the reasons

discussed below, we affirm the Superior Court’s judgment.

(2) We previously described the events leading to Warncke’s convictions

as follows:

On October 8, 2020, Raymond Warncke, then 40-years-old, asked
Tyrone Henry, a 71-year-old man, for a ride to the liquor store. Upon
returning to the house where he was staying, Warncke grew violent,
repeatedly punching the older man in the face, refusing to calm down
once police arrived, cursing the officers, resisting arrest, and kicking
the door of one of the patrol vehicles. As a result, Warncke was charged
with, and ultimately convicted of, assault on a person over 62 years of
age, terroristic threatening, criminal mischief for “intentionally or
recklessly caus[ing] damage in an amount less than $5,000[,]” and
disorderly conduct. He was thereafter declared a habitual offender—
he had previously been convicted of three violent felonies; aggravated
menacing, resisting arrest, and rape in the fourth degree—and
sentenced on the assault charge to 25 years at level V supervision
suspended after 15 years for probation. Both the terroristic-threatening
and criminal-mischief convictions resulted in one-year sentences
suspended for one year of concurrent probation. And he was fined $575
for disorderly conduct. 1

With the exception of the criminal-mischief conviction, which was remanded for

resentencing as an unclassified misdemeanor, the Court affirmed Warncke’s

convictions and sentence on appeal. 2

(3) On August 28, 2023, Warncke filed a timely motion for postconviction

relief. He alleged that the Superior Court did not sentence him with an open mind

and that his counsel was ineffective for failing to raise the victim’s intoxication at

trial and Warncke’s mental health issues at sentencing. The Superior Court referred

the matter to a Commissioner. Warncke filed a motion for appointment of counsel,

which the Commissioner denied. The Commissioner also issued a briefing schedule.

(4) After his former counsel filed an affidavit in response to the

allegations of ineffective assistance, Warncke filed an amended motion for

1
Warncke v. State, 2023 WL 5028842, at *1 (Del. Aug. 8, 2023) (citations omitted).
2
Id. at *1-2.
2
postconviction relief. He alleged that his counsel was ineffective for: (i) failing to

object to the testimony of State witnesses concerning Warncke’s use of racial slurs;

(ii) talking him out of testifying; (iii) failing to communicate a plea offer to him; (iv)

failing to challenge the State’s petition to declare him a habitual offender; (v) failing

to do anything for his defense; and (vi) failing to provide him with transcripts. The

Commissioner permitted the amendment, but ordered that no further amendments

would be allowed, absent extraordinary circumstances, unless Warncke notified the

court within two weeks that he wished to file additional amendments. Warncke

advised that he did not wish to file any additional amendments. The Commissioner

issued a new briefing schedule.

(5) Following counsel’s submission of an amended affidavit, the State’s

response, and Warncke’s reply, the Commissioner issued a report recommending

denial of the postconviction motions. The Superior Court accepted the

Commissioner’s recommendation and denied the postconviction motions. This

appeal followed.

(6) We review the Superior Court’s denial of a motion for postconviction

relief for abuse of discretion.3 We review constitutional claims, claims of ineffective

assistance of counsel, de novo. 4 The Court considers the procedural requirements of

3
Baynum v. State, 211 A.3d 1075, 1082 (Del. 2019).
4
Id.
3
Rule 61 before addressing any substantive issues,5 but claims of ineffective

assistance raised in a timely postconviction motion generally are not procedurally

barred.6 On appeal, Warncke argues that the Superior Court erred in ignoring the

reply he filed in support of his postconviction motions and rejecting his

postconviction claims. His arguments are without merit.

(7) The Superior Court Commissioner found that Rule 61(i)(4) barred

Warncke’s claim that the Superior Court had sentenced him with a closed mind

because he had raised that claim on direct appeal and this Court rejected it. 7 Rule

61(i)(4) bars “[a]ny ground for relief that was formerly adjudicated…in an appeal”

unless the movant pleads lack of jurisdiction, new evidence creating a strong

inference of actual innocence, or a new rule of constitutional law retroactively

renders the conviction invalid. 8 In his postconviction motions and reply, Warncke

failed to plead any basis for overcoming the Rule 61(i)(4) procedural bar.

Accordingly, the Superior Court did not err in rejecting Warncke’s claim concerning

his sentencing.

(8) We next turn to the Superior Court’s denial of Warncke’s claims of

ineffective assistance. To prevail on an ineffective assistance of counsel claim, a

5
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
6
Green v. State, 238 A.3d 160, 175 (Del. 2020).
7
Warncke, 2023 WL 5028842, at *2 (holding that the Superior Court did not sentence Warncke
with a closed mind).
8
Super. Ct. Crim. R. 61(d)(2), (i)(4), (i)(5).
4
defendant must demonstrate that: (i) his 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 proceedings would have

been different.9 There is “a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” 10 “A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” 11

(9) In rejecting Warncke’s claim that his counsel was ineffective for failing

to raise the victim’s intoxication at trial, the Commissioner found that the record

refuted this claim. Warncke’s counsel cross-examined Trooper Jerome Williams

about the victim telling the 911 operator that he had been drinking alcohol that day,

the difficulty Trooper Williams had in obtaining a coherent statement from the

victim, and how alcohol can make a statement less reliable. In her closing,

Warncke’s counsel emphasized that the victim told the 911 operator that he had been

drinking. Contrary to his claim on appeal, Warncke’s reply failed to demonstrate

that his counsel acted unreasonably in raising the victim’s intoxication or that there

was a reasonable probability of a different outcome if she had handled it as Warncke

preferred.

9
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
10
Id. at 689.
11
Id. at 694.
5
(10) As to Warncke’s claim that his counsel was ineffective for failing to

raise his mental health issues at sentencing, the sentencing transcript reflects that his

counsel expressly referred the Superior Court to discussion of his substantial mental

health history in the presentence investigation. As the Commissioner also

emphasized, the Superior Court acknowledged Warncke’s mental health history

when it included a requirement in the sentencing order that he receive a mental health

evaluation and comply with any treatment recommendations. Warncke’s reply did

not show that his counsel acted unreasonably in her handling of his mental health

issues at sentencing or that he was prejudiced.

(11) Warncke, who is white, alleged that his counsel was ineffective for

failing to object to witness testimony that he made racial slurs. The victim, who was

black, and the victim’s friend who pulled Warncke off the victim testified that

Warncke was yelling at them that he wanted kill everybody and using the N-word.

Trooper Williams testified that Warncke was initially calm, but when police took

him into custody he became disruptive, started kicking out, and yelling curse words

and the N-word at Trooper Williams. Warncke argued in his reply that there was no

evidence he had used racial slurs because the N-word was not mentioned in the

police report, but his counsel highlighted this on cross-examination and the police

report described Warncke as repeatedly cursing and making derogatory comments

that created a disturbance to the community. In her affidavit, Warncke’s counsel

6
stated that the witnesses testified from personal knowledge and that she had no basis

to object to their testimony concerning Warncke’s racial slurs. The Commissioner

found that Warncke had not shown that his counsel’s strategic choice not to object

was unreasonable and that he had failed to show that the outcome would have been

different had his counsel objected.

(12) Even assuming Warncke’s counsel acted unreasonably in not objecting

to the testimony concerning Warncke’s use of racial slurs, Warncke has not shown

a reasonable probability that the outcome of the trial would have been different if

his counsel had successfully objected. Absent the racial slurs, there was still

substantial evidence that Warncke hit the victim, who was 71, and caused the

victim’s lip to bleed,12 threatened to kill the victim, 13 created a risk of public alarm

to others by shouting and cursing,14 and damaged a police vehicle. 15 Warncke’s

reply did not demonstrate otherwise. The Superior Court did not commit reversible

error in denying this claim of ineffective assistance.

12
11 Del. C. § 612(a)(6) (defining second-degree assault as recklessly or intentionally causing
physical injury to someone over the age of 62).
13
Id. § 621(a)(1) (providing that a person is guilty of terroristic threatening when they threaten to
commit any crime likely to result in death or serious injury).
14
Id. § 1301(1)(b) (defining disorderly conduct as intentionally creating a risk of public alarm to
others by making an unreasonable noise, addressing someone with abusive language, or making
an offensively coarse utterance).
15
Id. § 811(a)(1) (providing that a person is guilty of criminal mischief when they intentionally or
recklessly damage tangible property of another person).
7
(13) Nor did the Superior Court err in rejecting Warncke’s claim that his

counsel was ineffective for talking him out of testifying. As the Commissioner

discussed in her report, the Superior Court conducted a colloquy with Warncke

concerning his waiver of his right to testify. During this colloquy, Warncke stated

under oath that he understood it was his choice whether to testify and that he chose

not to testify. In addition to failing to show his counsel acted unreasonably, Warncke

did not explain in his postconviction motion or reply how there was a reasonable

probability of a different outcome if he had testified.

(14) Warncke also fails to show that the Superior Court erred in rejecting his

claim that his counsel was ineffective for failing to communicate plea offers to him

until Aril 27, 2022 and May 2, 2022. Warncke has provided no details concerning

these plea offers, but the Superior Court docket reflects that there was a final case

review with no plea on April 27th and a plea rejection colloquy on May 2nd. As the

Superior Court Commissioner found, Warncke failed to show a reasonable

probability of a different outcome if his counsel had communicated the plea offers

to him sooner.

(15) As to Warncke’s claim that his counsel was ineffective for failing to

challenge the State’s habitual offender petition, he did not identify any basis to

challenge the petition in his amended postconviction motion. In his reply, Warncke

conclusorily stated that he did not have the opportunity to rehabilitate as required for

8
habitual offender sentencing under 11 Del. C. § 4214. This Court has held that

“some chance of rehabilitation” means only that “some period of time must have

elapsed between sentencing on an earlier conviction and the commission of the

offense resulting in the later felony conviction.”16 Warncke does not dispute that he

had the necessary predicate convictions (aggravated menacing in 2016, resisting

arrest with force in 2011, and fourth-degree rape or second-degree assault in 2002),

the convictions arose out of separate events, and the convictions were separated by

a period of time. Warncke has not shown that his counsel had any basis to challenge

the habitual offender petition or a reasonable probability of a different outcome had

she done so.

(16) In his amended motion, Warncke conclusorily alleged that his counsel

failed to do anything for his defense and was unprepared for trial. His reply included

more details concerning his belief that his counsel should have presented a defense

of self-defense, but the record reflects that his counsel was prepared for trial. In

addition, Warncke failed to show that there was a reasonable probability of a

different outcome had his counsel argued that he acted in self-defense.17

(17) Finally, the Superior Court did not err in rejecting Warncke’s claim that

his counsel was ineffective for failing to provide him with trial transcripts. This

16
Eaddy v. State, 1996 WL 313499, at *2 (Del. May 30, 1996).
17
Warncke told the police that he hit the victim because the victim threatened him with a sword,
but the police did not observe any sign of a sword.
9
Court has previously affirmed the denial of similar claims. 18 In addition, Warncke’s

counsel stated in her affidavit that trial transcripts were provided to the appellate unit

for Warncke’s direct appeal, but she did not know if the transcripts were provided

to Warncke. Warncke’s postconviction reply and briefs in this Court include pages

from the trial and sentencing transcripts that were in the appendix for his opening

brief on direct appeal so he clearly has access to transcripts from his trial. Warncke

has not shown that he suffered any prejudice.

(18) For all the foregoing reasons, the Superior Court did not err in denying

Warncke’s claims for postconviction relief.

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

Court is AFFIRMED.

BY THE COURT:
/s/ Karen L. Valihura
Justice

18
See, e.g., Nickerson v. State, 2003 WL 21106527, at *1 (Del. May 12, 2003) (holding the
appellant had not provided any “legal support for this claim that his counsel had an obligation to
provide him with trial transcripts to pursue postconviction relief”).
10