State v. Bordley

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE :
:
v. : I.D. No.: 1604019780
:
DAIQUAN BORDLEY, :
:
Defendant. :

Submitted: December 23, 2025
Decided: March 30, 2026

MEMORANDUM OPINION AND ORDER

Upon Defendant’s Motion for Postconviction Relief – GRANTED

Kathryn J. Garrison, Esquire, Deputy Attorney General, Dover, Delaware. Attorney
for the State of Delaware.

Patrick J. Collins, Esquire, Collins Price Warner Woloshin, Wilmington, Delaware,
for Defendant Daiquan Bordley.

GREEN-STREETT, J.

1
I. Introduction

Facing several felony charges, including Murder in the First Degree, a

defendant waived his right to a jury trial and proceeded to a bench trial. Before

making that waiver, the defendant’s attorney advised him a bench trial would be

advantageous, as the attorney enjoyed a social relationship with the trial judge. As

trial counsel’s representation fell below an objective standard of reasonableness and

deprived the defendant of the ability to exercise his constitutional right to a jury trial,

the Motion for Postconviction Relief is GRANTED.

II. Factual and Procedural Background

A. Mr. Bordley’s conviction and direct appeal

On July 5, 2016, a grand jury indicted Daiquan Bordley on charges of Murder

in the First Degree, Robbery in the First Degree, Possession of a Firearm During the

Commission of a Felony, and Conspiracy in the Second Degree.1 Those charges

stemmed from an alleged plan by Mr. Bordley and a co-defendant, Chelsea

Braunskill, to rob Dontray Hendricks.2 Ms. Braunskill contacted Mr. Hendricks

stating she wanted to purchase marijuana and smoke with him.3 Ms. Braunskill, Mr.

1
Bordley v. State, 224 A.3d 575 (Del. 2020) (TABLE); D.I. 2 (July 5, 2016).
2
Id.
3
Id.

2
Hendricks, and Ms. Braunskill’s roommate, Alexis Golden, drove to the Port Mahon

pier.4

Approximately ten to fifteen minutes after they arrived at the pier, Mr.

Bordley; another co-defendant named Zhyree Harmon; and Christopher Gartner-

Hunter, Mr. Harmon’s brother-in-law; arrived in Mr. Bordley’s vehicle.5 Those

individuals present at the pier disagree about what happened next. Their accounts at

trial reflect that disagreement.

Ms. Golden stated Mr. Bordley and Mr. Hendricks engaged in a tussle.6 Mr.

Harmon described any altercation between Mr. Bordley and Mr. Hendricks as

wrestling.7 Ms. Braunskill testified Mr. Bordley “walked straight up and shot [Mr.

Hendricks].”8 After allegedly shooting Mr. Hendricks, Mr. Bordley left in his

vehicle with Mr. Harmon and Mr. Gartner-Hunter.9 Ms. Braunskill and Ms. Golden

left in Mr. Hendricks’s vehicle.10 Mr. Hendricks died from his injuries.11

4
Id.
5
Id.
6
Id.
7
Id.
8
Id.
9
Id.
10
Id.
11
Id.
3
Mr. Bordley proceeded to a bench trial.12 Mr. Bordley’s co-defendants, Mr.

Harmon and Ms. Braunskill, resolved their respective charges by accepting plea

offers from the State.13 At trial, the State called Detective Robert Daddio;14 Mr.

Harmon;15 Ms. Golden;16 Ms. Braunskill;17 Kevin Cottle, a paramedic who

responded to the scene;18 Dr. Gary Collins, the chief medical examiner at the

Delaware Division of Forensic Science;19 and Detective Daniel Grassi.20 Mr.

Bordley testified, and called two additional witnesses of his own: Janaid Kareem,

Mr. Hendricks’s brother;21 and Mr. Gartner-Hunter.22 After Mr. Gartner-Hunter took

the witness stand, the State requested a colloquy advising him of his right to remain

12
Id.
13
D.I. 162, Am. Mot. for Postconviction Relief at 18, 26 (Jan. 9, 2024).
14
Id. at 11.
15
Id. at 12.
16
Id. at 19.
17
Id. at 24.
18
Id. at 30.
19
Id. at 31.
20
Id. at 32.
21
Id. at 40.
22
Id. at 34.

4
silent because it still considered him a potential suspect.23 The trial judge permitted

Mr. Gartner-Hunter to leave the witness stand to consult with counsel, and he never

retook the witness stand or offered any testimony.24

The trial judge convicted Mr. Bordley on all counts.25 Mr. Bordley filed a

timely appeal to the Delaware Supreme Court, arguing that (1) his due process rights

were violated by prosecutorial misconduct; (2) the trial judge improperly admitted

unauthenticated text messages; and (3) the trial judge improperly failed to consider

whether notes written by Mr. Harmon impeached his testimony. 26 The Delaware

Supreme Court found no merit to Mr. Bordley’s contentions, upholding his

conviction on January 7, 2020.27

B. Mr. Bordley’s postconviction proceedings

Mr. Bordley filed a Motion for Postconviction Relief, pro se, on December

14, 2020.28 He asserted three grounds of ineffective assistance of counsel relating

to his trial counsel’s (“Trial Counsel”) performance: (1) Trial Counsel failed to

23
Id.
24
Id.
25
Bordley, 224 A.3d at 575.
26
Id.
27
Id.
28
D.I. 119 (Dec. 14, 2020).

5
request a lesser-included offense; (2) Trial Counsel failed to call an expert witness

to introduce doubt about the authenticity of text messages attributed to Mr. Bordley;

and (3) Trial Counsel failed to object to the introduction of those text messages. 29

At that time, Mr. Bordley also filed a motion requesting the appointment of

postconviction counsel.30 The Court granted Mr. Bordley’s request for appointment

of postconviction counsel on December 18, 2020.31

Before the Court appointed postconviction counsel, Mr. Bordley retained

private postconviction counsel (“Prior Postconviction Counsel”).32 Prior

Postconviction Counsel submitted a typed, filled-in version of the postconviction

form typically utilized by pro se filers.33 Prior Postconviction Counsel asserted eight

grounds of ineffective assistance of counsel: (1) Trial Counsel improperly advised

Mr. Bordley to proceed with a bench trial; (2) Trial Counsel failed to have notes

written by one of Mr. Bordley’s co-defendants analyzed by a handwriting expert;34

29
Id.
30
D.I. 120 (Dec. 14, 2020).
31
D.I. 122 (Dec. 18, 2020).
32
D.I. 123 (Jan. 5, 2021) (Motion for Postconviction Relief filed by Prior Postconviction Counsel);
D.I. 125 (Jan. 6, 2021 (Court Order vacating its prior Order to appoint postconviction counsel).
33
D.I. 123.
34
The motion did not specify which of Mr. Bordley’s co-defendants wrote the notes in question.
Presumably, they are the notes allegedly given to Mr. Bordley by Mr. Harmon while the two were
incarcerated together awaiting trial.
6
(3) Trial Counsel failed to introduce prior statements given by Ms. Golden; (4) Trial

Counsel failed to object to evidence implicating Mr. Bordley in other crimes; (5)

Trial Counsel “failed to present a coherent theory as to how the shooting occurred;”

(6) Trial Counsel “failed to follow up on proposed exculpatory testimony of one Mr.

Gartner-Hunter after witness declined to testify based on a fear of potential

prosecution;” (7) Trial Counsel failed to object to the admission of text messages

purportedly between Mr. Bordley and Ms. Braunskill; and (8) no investigation

occurred regarding Mr. Gartner-Hunter’s status as a potential suspect – a status

which allegedly prevented him from testifying.35

On April 22, 2021, Prior Postconviction Counsel filed a Motion to Withdraw

as Counsel, stating Mr. Bordley’s family failed to compensate him for his

representation.36 Prior Postconviction Counsel withdrew that motion on May 2,

2021.37 The State filed a response to the First Motion for Postconviction Relief on

July 23, 2021.38 A Commissioner of this Court issued a report recommending the

35
D.I. 123 (Jan. 5, 2021) (the “First Motion for Postconviction Relief”).
36
D.I. 130 (Apr. 22, 2021).
37
D.I. 137 (May 2, 2021).
38
D.I. 141 (Jul. 23, 2021).

7
Court deny all of Mr. Bordley’s claims.39 Prior Postconviction Counsel did not file

any objections to that report.

On May 11, 2022, Mr. Bordley filed a letter with the Court, stylized as a

“Motion Reporting Abandonment of Counsel,” informing the Court that Prior

Postconviction Counsel ceased representing Mr. Bordley, and failed to file any

exceptions to the report issued by the Commissioner.40 On May 24, 2022, the

Delaware Supreme Court denied Mr. Bordley’s pro se direct appeal of the

Commissioner’s recommendations for lack of jurisdiction.41 Mr. Bordley filed a pro

se “Opening Brief in support of his Appeal of Commissioner’ [sic] Order.”42 In that

filing, Mr. Bordley alleged a complete breakdown in his communication with Prior

Postconviction Counsel.43

On August 17, 2022, the Court received an email from the Office of Conflicts

Counsel informing the Court Mr. Bordley contacted that office requesting

representation in his postconviction proceedings.44 The email explained the Office

39
D.I. 144 (Apr. 11, 2022).
40
D.I. 146 (May 11, 2022).
41
D.I. 147 (Jun. 6. 2022); Bordley v. State, 277 A.3d 1257 (Del. 2022) (TABLE).
42
D.I. 148 (Aug. 1, 2022).
43
Id. at 16-17.
44
D.I. 149 (Aug. 17, 2022).

8
of Conflicts Counsel contacted Prior Postconviction Counsel, and confirmed he no

longer represented Mr. Bordley.45 Accordingly, the Office of Conflicts Counsel

assigned new postconviction counsel to Mr. Bordley (“Postconviction Counsel”).46

After his assignment to Mr. Bordley’s case, Postconviction Counsel requested

a stay of the proceedings to allow time to conduct a full review of the record.47 The

State did not oppose that request.48 The Court granted a stay of the proceedings until

November 30, 2022.49 On November 21, 2022, Postconviction Counsel filed a

“Motion to Vacate Commissioner’s Report and Recommendations and Permit

Amendment to Motion for Postconviction Relief.”50 The State filed a Reply, arguing

the Court should deny Mr. Bordley’s request to amend his Motion for Postconviction

Relief.51 On February 6, 2023, the Court granted Mr. Bordley’s Motion to Amend

his Motion for Postconviction Relief, and remanded the matter back to the

Commissioner.52

45
Id.
46
Id.
47
D.I. 150, Mot. for a Stay of Postconviction Proceedings (Aug. 18, 2022).
48
Id. at 5-6.
49
D.I. 151 (Aug. 19, 2022).
50
D.I. 153 (Nov. 21, 2022).
51
D.I. 154 (Dec. 1, 2022).
52
D.I. 155 (Feb. 6, 2023).
9
Mr. Bordley filed an Amended Motion for Postconviction Relief on January

9, 2024. He asserted three grounds for ineffective assistance of counsel: (1) Trial

Counsel violated Mr. Bordley’s constitutional right to a jury trial by advising him

Trial Counsel maintained a friendly relationship with the trial judge and could expect

favorable rulings; (2) Trial Counsel’s performance during trial fell below an

objective standard of reasonableness; and (3) Trial Counsel failed to communicate

any plea offers to Mr. Bordley.53 He requested an evidentiary hearing to substantiate

those claims further.54

The State filed its Response on May 21, 2024, disputing Mr. Bordley’s claims

regarding Trial Counsel’s performance during trial and the alleged failure to

communicate any plea offers.55 As to Mr. Bordley’s allegation regarding Trial

Counsel’s intimation of an advantageous social relationship with the trial judge, the

State agreed an evidentiary hearing would be beneficial.56 The Commissioner held

evidentiary hearings on September 24 and 25, 2024.57 Trial Counsel, Mr. Bordley,

53
Am. Mot. for Postconviction Relief at 51, 57, 66.
54
Id. at 74.
55
D.I. 171 (May 21, 2024).
56
Id. at 14.
57
D.I. 181 (hereinafter, “Tr of Ev. Hr’g at __”) (as the evidentiary hearing spanned two days, there
are two separate transcripts. Citations to “A___” will denote citations to the first day, citations to
“B___” will denote citations to the second day).

10
and Michael Fontello, an investigator who assisted Trial Counsel with Mr. Bordley’s

case, testified.58

At the evidentiary hearing, Trial Counsel denied ever stating he maintained a

social relationship with the trial judge.59 He testified his practice involved having

investigators observe meetings between him and his clients to take notes.60 He did

not recall any meeting between himself, the two investigators he employed, and Mr.

Bordley wherein the four men took a vote on whether to proceed to a jury or bench

trial.61 Trial Counsel further testified he believed Mr. Bordley wanted a bench trial

because, “he didn’t have to convince 12 people for the acquittal. He just had to

convince one person.”62 Trial Counsel also stated, “I explained to Mr. Bordley that

it’s his choice, he gets to make that choice, and I can’t tell him what to do. I can’t

even advise him what to do.”63 He denied having any personal relationship with the

trial judge.64

58
Id.
59
Id. at A17.
60
Id. at A9-10.
61
Id. at A21-22.
62
Id. at A19.
63
Id. (emphasis added).
64
Id. at A53.

11
Regarding his decision not to introduce evidence of Mr. Bordley’s co-

defendants’ cooperation agreements with the State to testify against Mr. Bordley,

Trial Counsel testified:

So we weren’t in front of a jury. We were in front of a
judge. I believe that the judge was well versed in co-
defendant’s statements. So it wasn’t necessary to actually
submit [ ] cooperation agreements to the Court. I don’t
think it would have impacted one way or another. And I
think the Court was already aware of the co-defendants’
pleas.65

When asked if the Court could consider those pleas, even though they were outside

the record, Trial Counsel opined the trial judge could have taken judicial notice of

them.66 He conceded, however, that he did not ask the trial judge to take judicial

notice of co-defendants’ cooperation agreements.67

Mr. Bordley testified he initially planned to proceed with a jury trial.68

However, he explained that Trial Counsel advised, “he was close friend[s] with the

judge, and he felt as though the trial would be more in our favor due to their personal

65
Id. at A39-40.
66
Id. at A40-41.
67
Id. at A41.
68
Id. at A61.

12
relationship. No [sic] only that but, also, as he said, certain evidence would be able

to get in easier without certain parameters [ ] with that judge.”69

Mr. Bordley also testified about a meeting on the eve of trial when he met with

Trial Counsel and two investigators to discuss whether to waive his right to a jury

trial.70 He recalled that Mr. Fontello and himself voted for a jury trial, while Trial

Counsel and the other investigator, Robert Workman, voted for a bench trial.71 Mr.

Bordley stated Trial Counsel told him that the decision to waive his right to a jury

trial must be made by Mr. Bordley, but Trial Counsel “was adamant that we should

go to trial by judge because [Trial Counsel] was more comfortable that way to

present the case. Not only with the being friends [sic] with the judge.”72

Mr. Fontello recalled the meeting in which they voted on whether Mr. Bordley

should opt for a bench trial.73 He testified that Mr. Bordley had not expressed, at

least in front of Mr. Fontello, any preference for a jury or bench trial before that

69
Id. at A62.
70
Id. at A64.
71
Id.
72
Id. at A65-66.
73
Id. at B10-12.

13
meeting.74 Mr. Fontello testified, “[Trial Counsel] recommended a judge trial.”75

When asked what Trial Counsel’s reasons were, Mr. Fontello recalled:

He explained that he felt he had a relationship with the
judge. In fact, he had a social type of relationship, and he
didn’t go into particulars, with the judge and that he could
get better judgments, meaning more evidence in [sic]. I
would believe is [sic] what he was talking about. And with
this, I guess it was left at that. That was all that was
basically said.

Mr. Fontello could not recall any other reasons Trial Counsel provided for

recommending a bench trial.76 Mr. Fontello testified Trial Counsel suggested they

vote on how to proceed.77 Mr. Fontello explained he did not view a bench trial as a

viable option, and that “this – it should have been a jury trial.”78 In Mr. Fontello’s

recollection of the vote, Trial Counsel, Mr. Workman, and Mr. Bordley voted for a

bench trial.79 He testified Mr. Bordley “was very agreeable[,] and I think he was

definitely swayed by [Trial Counsel’s] statements that he was making.”80

74
Id. at B12.
75
Id. at B13.
76
Id. at B14.
77
Id. at B14-15.
78
Id. at B15.
79
Id.
80
Id. at B16.

14
After the evidentiary hearing, Mr. Bordley submitted an affidavit from Mr.

Workman.81 Mr. Workman averred that he recalled the meeting in which the four

men voted on whether to proceed to a bench trial.82 Mr. Workman stated that,

initially, Trial Counsel “was in favor of going to a bench trial with the judge assigned

to this case.”83 Mr. Workman offered that, “after listening to [Trial Counsel’s]

opinion and reasoning and[,] in combination with all our investigative findings, I

was still in favor of going to trial by and with this judge.”84 He could not recall,

however, what Trial Counsel’s reasons were.85

Additionally, Mr. Workman indicated he located his notes from that meeting.86

Under the heading “ESQ Discussing Bench vs. Jury,” Mr. Workman wrote, “Judge

is [sic].”87 Mr. Workman later crossed that note out, and averred, “my recollection

is that I believe whatever [Trial Counsel] was specifically expressing to Bordley

about the judge shouldn’t have been documented in our notes.”88 Mr. Workman

81
D.I. 182 (Oct. 23, 2024).
82
Id. at 2.
83
Id.
84
Id.
85
Id.
86
Id.
87
Id.
88
Id.
15
concluded, “the decision to go to trial by judge wasn’t a vote or group decision.

Bordley decided to go to trial.”89

The State filed its “Supplement After Evidentiary Hearing in Response to

Defendant’s Amended Motion for Postconviction Relief” on November 25, 2024.90

Mr. Bordley filed a Reply on December 27, 2024.91 The Commissioner issued her

Report and Recommendation (the “Report”) on April 30, 2025.92 The Report

recommended denying all of Mr. Bordley’s claims.93

Mr. Bordley filed his Appeal to the Report on June 13, 2025.94 The State filed

its Response on July 2, 2025.95 The Court held oral argument on this matter on

November 21, 2025.96

89
Id. at 3.
90
D.I. 183 (Nov. 25, 2024).
91
D.I. 184 (Dec. 27, 2024).
92
D.I. 187 (Apr. 30, 2025).
93
Id. at 36-37.
94
D.I. 190 (June 13, 2025) (after the evidentiary hearing, Mr. Bordley abandoned his claim related
to Trial Counsel’s alleged failure to communicate a plea offer).
95
D.I. 194 (July 2, 2025).
96
Tr. of Oral Arg. (D.I. 197) (Nov. 21, 2025) (hereinafter, “Tr. of OA at __”).

16
III. Rule 61’s Procedural Requirements

This Court must consider the procedural requirements of Superior Court

Criminal Rule 61 before addressing the merits of Mr. Bordley’s claims.97 Those

procedural requirements are “timeliness, repetitiveness, procedural default, and

former adjudication.”98 Rule 61(i)(3) further requires “[a]ny ground for relief that

was not asserted in the proceedings leading to the judgment of conviction, as

required by the rules of this court, is thereafter barred, unless the movant shows ...

[c]ause for relief from the procedural default and ... [p]rejudice from violation of the

movant's rights.” Claims based on ineffective assistance of counsel, however, cannot

be raised on direct appeal. Accordingly, Rule 61(i)(3) rarely applies to claims

founded on ineffective assistance of counsel.99

Mr. Bordley filed his initial Motion for Postconviction Relief within one year

of the Delaware Supreme Court affirming his conviction. Thereafter, the Court

granted his request to amend his postconviction motion. Thus, his Amended Motion

for Postconviction Relief qualifies as timely and non-repetitive. As he asserts claims

of ineffective assistance of counsel, his claims are not barred by Rule 61(i)(3).

97
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
98
State v. Stanford, 2017 WL 2484588, at *2 (Del. Super. June 7, 2017).
99
State v. Coverdale, 2018 WL 259775, at *2 (Del. Super. Jan. 2, 2018) (citing State v. Smith,
2017 WL 2930930, at *1 (Del Super. July 7, 2017)).
17
Further, none of his claims have been previously adjudicated. Accordingly, the

Court will consider the merits of Mr. Bordley’s claims.

IV. Analysis

A. The Court rejects the Report

Under Superior Court Criminal Rule 62(a)(5)(iv), once a party objects to a

Commissioner’s report, this Court must conduct a de novo review of all portions of

the report to which there are objections. The Court “may accept, reject, or modify,

in whole or in part, the findings of fact or recommendations made by the

Commissioner.”100 As Mr. Bordley objected to the entirety of the Report, this Court

must review the entire Report de novo.

Mr. Bordley first argues that the Report misapplies the procedural bar of Rule

61(i)(3).101 Although the Report did not find any section of Rule 61 procedurally

barred Mr. Bordley’s claim, the Report does recite language102 that appears to

conflate the requirements of Rule 61(i)(3) – requirements generally inapplicable to

ineffective assistance of counsel claims – with the two-part analysis prescribed in

Strickland v. Washington.103 During oral argument, the State agreed that the Report

100
Super. Ct. Crim. R. 62(a)(5)(iv).
101
Appeal from Commissioner’s Findings of Fact and Recommendations at 4-5.
102
Report at 16.
103
466 U.S. at 668 (1984).

18
incorrectly describes the interplay between Rule 61(i)(3) and ineffective assistance

of counsel claims.104 Further, it appears this language has previously been

highlighted as applying an incorrect legal standard in reviews of previous reports by

the Commissioner.105 Accordingly, the Court must reject that portion of the Report.

Mr. Bordley next asserts “much of the Commissioner’s Report’s legal

reasoning is copied verbatim from the State’s Supplemental Brief.”106 A review of

the Report largely confirms Mr. Bordley’s assertion. Even if the Court were to agree

with the State’s arguments, a motion for postconviction relief requires this Court to

engage meaningfully with the petitioner’s arguments beyond simply adopting the

State’s position. As explained, supra, the Court does not agree with the State’s

position or arguments. Thus, the Court must also reject the Report’s legal analysis

and conclusions.

B. Strickland guides the Court’s analysis

When analyzing claims of ineffective assistance of counsel, this Court applies

the two-part test set forth in Strickland v. Washington.107 Mr. Bordley must first

104
Tr. of OA at 41-42 (“My understanding in reading [the Commissioner’s] decision was that she
used that standard that she has typically used in other decisions where she talks about Rule 61(i)(3)
and about the fact that it can trump ineffective assistance of counsel claims, which is not correct.”).
105
See Green v. State, 238 A.3d 160, 175 (Del. 2020); Scott v. State, 326 A.3d 653 (Del. 2024).
106
Appeal from Commissioner’s Findings of Fact and Recommendations at 14 (emphasis original).
107
Green, 238 A.3d at 174.

19
show Trial Counsel’s performance fell below an objective standard of

reasonableness.108 Second, he must demonstrate Trial Counsel’s deficient

performance caused him substantial prejudice.109

For the first prong – the “performance prong” – Mr. Bordley bears the burden

of showing Trial Counsel’s performance “was objectively unreasonable, i.e., that no

reasonable lawyer would have conducted the defense” as Trial Counsel did.110 This

standard affords Trial Counsel substantial deference, as “it is not this Court’s

function to second-guess reasonable trial tactics.”111 Further, “the relevant question

is not whether counsel’s choices were strategic, but whether they were

reasonable.”112

Mr. Bordley must also demonstrate Trial Counsel’s deficient performance

caused him substantial prejudice.113 In the context of performance at trial, “[t]his

[standard] requires showing that counsel’s errors were so serious as to deprive the

108
Id. (citing Strickland, 466 U.S. at 687-88).
109
Id. (citing Strickland, 466 U.S. at 687-88).
110
Id.
111
State v. Drummond, 2002 WL 524283, at *1 (Del. Super. Apr. 1, 2002), aff'd, 803 A.2d 427
(Del. 2002).
112
Green, 238 A.3d at 174 (internal quotations omitted) (quoting Roe v. Flores-Ortega, 528 U.S.
470, 481 (2000)).
113
Strickland, 466 U.S. at 687-88.

20
defendant of a fair trial, a trial whose result is reliable.”114 “Where a defendant

claims ineffective assistance based on a pre-trial process that caused him to forfeit a

constitutional right, the proper prejudice inquiry is whether the defendant can

demonstrate a reasonable probability that, but for counsel's ineffectiveness, he would

have opted to exercise that right.”115 If Mr. Bordley fails to satisfy either prong of

the Strickland analysis, the Court may dispose of the claim without addressing the

other prong.116

C. Trial Counsel’s statement regarding his relationship with the trial
judge violated Mr. Bordley’s constitutional rights

Mr. Bordley’s first claim centers on Trial Counsel’s advice regarding Mr.

Bordley’s decision to waive his right to a jury trial. Mr. Bordley alleges Trial

Counsel (1) advised him to proceed with a bench trial because of a social relationship

between Trial Counsel and the trial judge; and (2) intimated he would have an easier

time getting evidence admitted.117 Mr. Bordley asserts that advice improperly

induced him to waive his right to a jury trial.118

114
Id.
115
Wheeler v. State, 296 A.3d 363, 376 (Del. 2023) (internal quotations omitted) (quoting Vickers
v. Superintendent Graterford SCI, 858 F.3d 841 (3d Cir. 2017)).
116
Green, 238 A.3d at 174–75.
117
Am. Mot. for Postconviction Relief at 54.
118
Id.

21
Trial Counsel denied ever suggesting he maintained a social relationship with

the trial judge – or that such a relationship and any associated partiality would

contribute to a favorable outcome at trial.119 Trial Counsel testified he remembered

a meeting between Mr. Bordley, Mr. Fontello, Mr. Workman, and himself to discuss

the advantages and disadvantages of a bench trial versus a jury trial. 120 He denied

trying to sway Mr. Bordley one way or the other, testifying, “so I explained to Mr.

Bordley that it’s his choice, he gets to make that choice, and I can’t tell him what to

do, I can’t even advise him what to do.”121 Trial Counsel did not recall having a vote

amongst the four men to decide whether to proceed with a bench trial.122 He

remembered Mr. Bordley did not make a final decision on waiving his right to a jury

trial until the morning of trial.123

Trial Counsel testified his practice regarding documenting meetings with

clients involved having his investigators attend and take notes. 124 One of those

investigators tasked with memorializing the meetings with Mr. Bordley, Mr.

119
D.I. 167, “Affidavit by Defendant’s Trial Attorney in Response to Bordley’s Rule 61 Claim of
Ineffective Assistance of Counsel.” (Mar. 7, 2024).
120
Tr of Ev. Hr’g at A16.
121
Id. at A19.
122
Id. at A21-22.
123
Id. at A22.
124
Id. at A9-10.

22
Fontello, testified he remembered the meeting wherein they discussed whether to

opt for a bench trial.125 As Mr. Fontello remembers it, Trial Counsel “recommended

a judge trial.”126 Mr. Fontello testified:

[Trial Counsel] explained that he had a relationship with
the judge. In fact, he had a social type of relationship, and
he didn’t go into particulars, with the judge and that he
could get better judgments, meaning more evidence in, I
would believe is what he was talking about. And with this
[sic], I guess it was left at that. That was all that was
basically said.127

Mr. Fontello could not recall specifics regarding Trial Counsel’s “social

relationship” with the trial judge, but thought Trial Counsel “said they associated in

a social manner outside the courtroom.”128 After suggesting a bench trial would be

better because of his relationship with the trial judge, Trial Counsel proposed a

vote.129 Mr. Fontello stated Trial Counsel, Mr. Bordley, and Mr. Workman voted in

favor of a bench trial, while Mr. Fontello voted for a jury trial. 130 Mr. Fontello

125
Id. at B10.
126
Id. at B13.
127
Id.
128
Id. at B14.
129
Id. at B13-14.
130
Id. at B15.

23
believed Trial Counsel’s remarks about a relationship with the judge swayed both

Mr. Workman and Mr. Bordley to vote in favor of a bench trial.131

Mr. Bordley testified he originally planned on exercising his right to a jury

trial.132 He remembered Trial Counsel advising him that:

He was close friends with the judge[,] and he felt as though
the trial would be more in our favor due to their personal
relationship. No [sic] only that but, also, as he said, certain
evidence would be able to get in easier without certain
parameters, I guess, with that judge.133

Mr. Bordley could not recall any other reason Trial Counsel provided for

recommending a bench trial.134 In his recollection of the vote, Mr. Bordley voted

for a jury trial.135 Mr. Bordley testified he remained unsure of how to proceed after

the vote, but ultimately Trial Counsel convinced him to waive his right to a jury

trial.136

131
Id. at B16.
132
Id. at A61.
133
Id. at A61-62.
134
Id. at A63-64.
135
Id. at A-64 (“So we had to vote[,] and it was barely split. I voted for a jury. And one of the
investigators, I believe it was Mr. Fontello, said we should go to trial by jury as well. And Mr.
Workman agreed with [Trial Counsel].”).
136
Id. at A64-65.

24
Mr. Workman averred, “Trial Counsel was in favor of going to [a] bench trial

with the judge assigned to this case.”137 He could not recall what exactly Trial

Counsel said, only that whatever he said convinced Mr. Workman to vote for a bench

trial.138 Mr. Workman reviewed his notes from that meeting, and found a note “under

the topic of ‘Esq. Discussing Bench vs. Jury[,]’ I started writing a sentence, ‘Judge

is,’ but stopped and then drew a line through those two words.” 139 Mr. Workman

could not recall what prompted him to write those words, but recalled, “I believe

whatever [Trial Counsel] was specifically expressing to Bordley about the judge

shouldn’t have been documented in our notes.”140

During oral argument, the State conceded that, “based on the testimony and

based on the parties’ credibility,” Trial Counsel likely did state his social relationship

with the trial judge would lead to favorable decisions.141 The Court agrees. Mr.

Bordley and Mr. Fontello recall similar versions of Trial Counsel’s advice regarding

a bench trial. Mr. Workman cannot recall Trial Counsel’s advice, beyond the fact

that Trial Counsel did not want it preserved in Mr. Workman’s notes. Further, Trial

137
D.I. 182 at 2.
138
Id.
139
Id.
140
Id.
141
Tr. of OA at 52-53.

25
Counsel’s testimony that he did not advise Mr. Bordley one way or the other, and

that he did not recall any vote on the matter, lacks credibility.142

Clearly, Trial Counsel representing that he and the trial judge were friends –

and thus the trial judge would likely provide more favorable rulings – falls below an

objective standard of reasonable representation. If Trial Counsel truly believed that

his relationship with a judicial officer would impact a particular case, he possessed

an ethical obligation to request the trial judge’s recusal. If Trial Counsel did not

believe it, his statements served only to mislead Mr. Bordley into waiving his right

to a jury trial for reasons known only to Trial Counsel. Either way, Trial Counsel’s

representation fell short of reasonable, and affected Mr. Bordley’s ability to make an

intelligent waiver of that right.

Having satisfied the performance prong, Mr. Bordley must also satisfy the

prejudice prong. The Delaware Supreme Court recently addressed the prejudice

prong in the context of waiving the right to a jury trial in Wheeler v. State. There,

trial counsel advised a defendant that he should opt for a bench trial because

142
As to Trial Counsel’s credibility, Mr. Bordley introduced into the record decisions regarding
Trial Counsel’s disciplinary record. See Reply to State’s Resp. After Evidentiary Hr’g at 8-9
(citing Matter of Beauregard, 189 A.3d 1236 (Del. 2018); In the Matter of a Member of the Bar of
the Supreme Court of Delaware: Andre M. Beauregard, Respondent, 291 A.3d 192 (Del. 2023)).
The Court finds Trial Counsel’s credibility lacking based on the testimony of the witnesses and the
evidence available in the record, aside from Trial Counsel’s disciplinary history. Thus, the Court
declines to delve into a discussion of Trial Counsel’s conduct in unrelated cases, and how that
conduct should impact a determination of his credibility in this case.

26
evidence that might otherwise be inadmissible would at least be presented to the trial

judge when counsel made evidentiary arguments.143 Trial counsel conceded the trial

judge could not consider such inadmissible evidence, but explained he would take

any advantage he could try to manufacture at trial.144

The Wheeler court ultimately deferred to the factual determinations of the

lower court – which determined the defendant’s testimony lacked credibility – and

found the defendant failed to satisfy the performance prong of Strickland.145

Nevertheless, the Wheeler court proceeded to analyze the prejudice prong to

establish the correct standard this Court should apply.146 It explained, “[w]hen a

criminal defendant waives an important constitutional trial right because of the

ineffective assistance of counsel, a defendant shows that he has been prejudiced

when he demonstrates a reasonable probability that he would have exercised that

right in the absence of counsel’s ineffective assistance.”147

Wheeler, 296 A.3d at 371. (Mr. Bordley notes Trial Counsel also served as trial counsel in
143

Wheeler).
144
Id.
145
Id. at 373.
146
Id. at 377.
147
Id.

27
Thus, Mr. Bordley must show that, but for Trial Counsel’s deficient advice, a

reasonable probability exists he would have exercised his right to a jury trial. Mr.

Bordley testified that, before hearing Trial Counsel’s deficient advice, he intended

to exercise his right to a jury trial.148 Mr. Fontello recalled Mr. Bordley being

persuaded by Trial Counsel to proceed with a bench trial.149 Mr. Workman averred

that, whatever Trial Counsel said on the matter, it persuaded Mr. Bordley to vote for

a bench trial.150 Taken together, those recollections suggest that Mr. Bordley would

have exercised his right to a jury trial if Trial Counsel had not advised him otherwise.

Accordingly, Mr. Bordley has satisfied the prejudice prong as prescribed by Wheeler.

The State’s arguments to the contrary are unavailing. First, the State points to

the colloquy between Mr. Bordley and the trial judge in which Mr. Bordley affirmed

his knowing and voluntary decision to waive his right to a jury trial. 151 Trial

Counsel’s suggestion that Mr. Bordley would receive favorable rulings because of

his attorney’s friendship with the trial judge, however, falls so far below reasonable

representation that the standard colloquy the trial judge employed did not address

such a possibility. The trial judge did not inquire, for example, whether Mr. Bordley

148
Tr. of Ev. Hr’g at A61.
149
Id. at B16.
150
D.I. 182 at 2.
151
Tr. of OA at 53.

28
expected the trial judge to rule in his favor because of a social relationship with Trial

Counsel.

The State contends Mr. Bordley’s assertion that he would have exercised his

right to a jury trial lacks credibility.152 Certainly, Mr. Bordley’s testimony that he

voted for a jury trial does not align with Mr. Fontello’s memory. Mr. Fontello and

Mr. Workman both suggested, however, that Mr. Bordley had not made up his mind

before the vote occurred. Both investigators acknowledged that Trial Counsel

attempted to persuade Mr. Bordley to opt for a bench trial. Logically, persuasion

would not be necessary if Mr. Bordley intended to pursue a bench trial all along.

The State further asserts that, although unethical, Trial Counsel’s advice “was

not so unreasonable that it bore no relationship to a valid defense strategy.” 153 The

State provided several cases in which Trial Counsel obtained favorable outcomes for

his clients in bench trials in front of the same trial judge.154 The State posits,

“[a]dvice to [Mr.] Bordley that [Trial Counsel] believed he could get favorable

rulings in a bench trial with this judge was not unreasonable.”155 Setting aside the

152
Id. at 57.
153
“State’s Supplement After Evidentiary Hearing in Response to Defendant’s Amended Motion
for Postconviction Relief” at 14.
154
Id. at 12.
155
Id.

29
ethical considerations of Trial Counsel’s advice, prior favorable results with the same

trial judge are not indicative of a strategic reason to pursue a bench trial for Mr.

Bordley’s specific case. Moreover, “although strategy satisfies the Strickland

requirements, ‘[t]he relevant question is not whether counsel’s choices were

strategic, but whether they were reasonable.’”156 Suggesting that Trial Counsel’s

alleged friendship with the trial judge may have created a strategic reason for pursing

a bench trial does not make Trial Counsel’s advice reasonable.

The record before the Court shows Trial Counsel advised Mr. Bordley to

waive his right to a jury trial because Trial Counsel enjoyed a social relationship

with the trial judge, which he intimated would lead to favorable decisions. The

record further shows that Trial Counsel did not provide other reasons for

recommending a bench trial – especially given that Trial Counsel testified “I can’t

even advise him what to do.”157 Mr. Bordley’s uncontradicted testimony evidences

he would have opted for a jury trial absent Trial Counsel’s advice. Both investigators

recall Trial Counsel persuading Mr. Bordley to proceed to a bench trial. Accordingly,

Mr. Bordley has shown both that Trial Counsel’s advice fell below an objectively

reasonable standard, and, that, but for Trial Counsel’s advice, Mr. Bordley would

156
Green, 238 A.3d at 174 (quoting Flores-Ortega, 528 U.S. at 481) (emphasis added).
157
Tr. of Ev. Hr’g at A19.

30
have exercised his constitutional right to a jury trial. Mr. Bordley has satisfied both

prongs of the Strickland analysis as to this claim.

D. Trial Counsel’s performance during trial fell below an objective
standard of reasonableness and prejudiced Mr. Bordley

Mr. Bordley’s second claim focuses on Trial Counsel’s performance during

the bench trial. First, he alleges Trial Counsel failed to introduce the cooperation

agreements signed by his codefendants to attack their credibility.158 Second, he

argues Trial Counsel should have requested the trial judge apply the standard jury

instruction for accomplice testimony when he considered the credibility of the

codefendants.159 Third, he asserts Trial Counsel “was ineffective for failing to

introduce eyewitness Alexis Golden’s statements to the investigator.”160

Collectively, Mr. Bordley asserts these mistakes by Trial Counsel deprived him of a

fair trial.161 The Court will address each of these arguments in turn, beginning with

Ms. Golden’s statement.

Trial Counsel’s questioning of Ms. Golden elicited the inconsistencies in her

statements – specifically, she told investigators she could not identify the shooter

158
Appeal from Commissioner’s Findings of Fact and Recommendations at 26.
159
Id.
160
Id.
161
Id.

31
because she could not see in the dark.162 Mr. Bordley argues Trial Counsel should

have introduced her statements to the investigators under 11 Del. C. § 3507(a)

because those statements provided evidentiary value beyond showing Ms. Golden

offered conflicting statements.163 Applying the deferential standard of Strickland,

however, the Court cannot find Trial Counsel’s chosen route to discredit Ms.

Golden’s testimony falls below an objective standard of reasonableness.

Similarly, the Court does not find Trial Counsel’s failure to request the trial

judge apply the standard instruction for accomplice testimony fell below an

objective standard of reasonableness. Certainly, the safer path would have been for

Trial Counsel to ensure the trial judge properly considered the accomplice testimony

of Ms. Braunskill and Mr. Harmon using the instruction set forth in Bland v. State.164

Trial Counsel’s explained he did not do so because “the Court never scheduled a

prayer conference prior to its verdict.”165 That excuse does not exemplify best

practices, but Strickland does not require best practices – only reasonable ones. The

Court does not find Trial Counsel’s belief that the trial judge would correctly apply

the law regarding accomplice testimony – without an explicit Bland instruction to

162
Am. Mot. for Postconviction Relief at 61.
163
Id. at 64.
164
Bland v. State, 263 A.2d 286, 289 (Del. 1970).
165
D.I. 167 at 4.

32
himself – falls below an objective standard of reasonableness. Further, Mr. Bordley

has not provided any evidence that the trial judge failed to consider properly and in

context the accomplice testimony of Mr. Bordley’s codefendants.

Turning to Mr. Bordley’s final argument, the State does not dispute Trial

Counsel failed to introduce evidence of Mr. Harmon and Ms. Braunskill entering

into cooperation agreements with the State. Trial Counsel’s justification for his

inaction166 – amplified by the State in its filings167 and adopted by the Report – relied

on the mistaken belief that evidence of those agreements did not need to be

introduced into evidence because the trial judge knew of their existence independent

of the trial record. The State conceded its mistake during oral argument, stating:

I had argued that the judge would have been aware of those
cooperation agreements because he took the pleas and he
sentenced one of the defendants prior to trial in this case.
But [Postconviction Counsel] is correct, that is not
information that would have been considered by the judge
because it would have been outside the record. So to the
extent the commissioner – [sic] I just would ask the Court
not to make that finding in your decision.168

As the finder of fact, a trial judge in a bench trial cannot consider evidence

outside the trial record. The trial judge explained as much in his decision, when he

166
Tr. of Ev. Hr’g at A40-42.
167
State’s Resp. to Def.’s Am. Mot. for Postconviction Relief at 23.
168
Tr. of OA at 42.

33
noted he would consider the credibility of witnesses based, in part, on “all other facts

and circumstances shown by the evidence which [would] affect the believability of

the testimony.”169 Not only did Trial Counsel fail to introduce the cooperation

agreements based on a misunderstanding of the law, he failed to impeach Ms.

Braunskill’s testimony when she testified she never signed a cooperation

agreement.170 Trial Counsel possessed the opportunity to undermine the credibility

of two key witnesses for the State – two of three eyewitnesses and Mr. Bordley’s

alleged co-conspirators – and failed to do so for no discernable tactical reason. In

this way, Trial Counsel’s conduct fell below an objective standard of reasonableness.

As to the prejudice prong, the trial judge’s conclusion following the bench

trial relied heavily on the testimony of Ms. Braunskill and Mr. Harmon.171 Evidence

existed showing those two witnesses were incentivized to testify against Mr. Bordley

because of their respective cooperation agreements. The trial judge could not

consider that evidence, however, because Trial Counsel never placed that evidence

into the record. A retrospective analysis of whether this additional impugnment to

Ms. Braunskill’s and Mr. Harmon’s credibility – in addition to their inconsistent

169
State v. Bordley, 2018 WL 3966456, at *1 (Del. Super. Aug. 15, 2018) (emphasis added), aff'd,
224 A.3d 575 (Del. 2020).
170
State’s Resp. to Def.’s Am. Mot. for Postconviction Relief at 22.
171
State v. Bordley, 2018 WL 3966456, at *1-2.

34
testimony and their status as codefendants – would have impacted the verdict poses

a difficult question.

To demonstrate prejudice, Mr. Bordley must show that, but for Trial Counsel’s

failure to introduce the cooperation agreements, a reasonable probability exists that

the results of the trial would have been different.172 “A reasonable probability of a

different result means a ‘probability sufficient to undermine confidence in the

outcome,’ a standard lower than ‘more likely than not.’”173 Given the importance of

Ms. Braunskill and Mr. Harmon to the State’s case against Mr. Bordley, the Court

finds a reasonable probability exists that an additional attack on their credibility

would have affected the outcome of the trial. Thus, Trial Counsel’s deficient

performance prejudiced Mr. Bordley.

V. Conclusion

Trial Counsel gave improper advice to Mr. Bordley based on Trial Counsel’s

suggestion that his social relationship with the trial judge would induce favorable

rulings. That advice fell below an objective standard of reasonableness, and caused

Mr. Bordley to waive his constitutional right to a jury trial. Further, Trial Counsel’s

deficient performance during the trial undermines the Court’s confidence in the

172
Strickland, 466 U.S. at 694.
173
Starling v. State, 130 A.3d 316, 325 (Del. 2015) (quoting Strickland, 466 U.S. at 693-94).

35
outcome. Accordingly, Mr. Bordley has satisfied both prongs of the Strickland

analysis. Mr. Bordley’s Amended Motion for Postconviction Relief is GRANTED.

IT IS SO ORDERED.

36