IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
) Def. I.D. # 2311012149
v. )
)
)
HAROLD WARD, )
)
Defendant. )
Submitted: July 30, 2026
Decided: August 12, 2026
Upon Defendant’s Motion for Postconviction Relief under Superior
Court Criminal Rule 61 (R1)
DENIED
MEMORANDUM OPINION AND ORDER
Emma G. Ballentine, Esquire, Deputy Attorney General, Department of
Justice, 13 The Circle, Georgetown, DE 19947; Attorney for State of
Delaware.
Patrick J. Collins, Esquire, Collins Price Warner Woloshin, 8 East 13 th Street, Wilmington, DE 19801; Attorney for Defendant.
KARSNITZ, R. J.
1
I. PROCEDURAL BACKGROUND
On facts arising out of a November 27, 2023, traffic stop, on January 23, 2024,
a Sussex County grand jury indicted Harold Ward (“Defendant”) for one count of
Carrying a Concealed Deadly Weapon (“CCDW”). Following a delay in the case, at
final case review on September 23, 2025, the State offered Defendant a plea to a
lesser-included misdemeanor offense of Carrying a Concealed Dangerous
Instrument (“CCDI”). After a colloquy with me, Defendant rejected the plea offer.
Near the end of the State’s case in a two-day jury trial ending on September
30, 2025, and after a colloquy with me, Defendant twice elected not to testify.
Defendant’s counsel at trial (“Trial Counsel”) made his first motion for acquittal,
which I denied. The jury found Defendant guilty of CCDW. Trial Counsel made his
second motion for acquittal, which I also denied. The parties agreed to proceed to
immediate sentencing. I sentenced Defendant to eight years in prison, all of which
were suspended for one year of Level 3 probation.
Postconviction Counsel was appointed to represent Defendant on appeal to
the Delaware Supreme Court. However, Defendant voluntarily dismissed his direct
appeal so that he could promptly file a Motion for Postconviction Relief under
Delaware Superior Court Rule Criminal Rule 61. On April 1, 2026, Defendant filed
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that Motion, together with an Appendix thereto (together, the “Motion”), which
contains, inter alia, an affidavit from Defendant and text messages between
Defendant and Trial Counsel. Copies of the Motion were served on the State and on
Trial Counsel. The Motion asserts one ground for relief: ineffective assistance of
counsel. Defendant argues that he would have taken a misdemeanor plea and avoided
a trial and felony conviction but for Trial Counsel's deficient advice. Defendant asks
me to vacate his conviction and order the State to re-offer the CCDI plea.
In an April 8, 2026, letter to Postconviction Counsel, I expanded the record to
include an affidavit from Trial Counsel (the “Trial Counsel Affidavit”). The Trial
Counsel Affidavit was filed on May 12, 2026. The Trial Counsel Affidavit asserts
that he proposed the plea resolution to the State and that he twice advised
Defendant to accept the plea offer, but Defendant rejected that advice and
insisted on going to trial. The Trial Counsel Affidavit says relatively little about
Defendant’s assertions of ineffectiveness of counsel contained in the Motion,
discussed further below.
On May 29, 2026, after reviewing the Trial Counsel Affidavit, I issued an
Order in letter form which stated that the record need not be further expanded and
that there was no need for an evidentiary hearing. On June 2, 2026, Defendant timely
filed a Motion for Reargument under Delaware Civil Rule 59(e), which I denied on
June 12, 2026.
3
The State filed its Response to the Motion on July 10, 2026.
Defendant filed his Reply on July 30, 2026.
In my April 8, 2026, letter to Postconviction Counsel, I found that none of the
procedural bars to the Motion under Rule 61 applied, and that I would therefore
consider the Motion on its merits. This is my decision on the merits of the Motion.
II. APPLICABLE LAW
To succeed on the merits, Defendant must meet the two-part standard
established in Strickland v. Washington,1 as applied in Delaware.2 Under Strickland,
Defendant must show that Trial Counsel’s representation “fell below an objective
standard of reasonableness” (the “performance prong”); and (2) the “deficient
performance prejudiced [his] defense.” (the “prejudice prong”).3
As to the performance prong, Defendant must demonstrate that Trial
Counsel’s decisions were unreasonable. There is a presumption that Trial Counsel’s
challenged conduct may be considered a strategic choice, and there is deference
afforded to such strategy.4 The Strickland test applies to Trial Counsel's actions
during plea negotiations as well as during the trial proceedings."5
1
466 U.S. 668 (1984).
2
Albury v. State, 551 A.2d 53 (Del. 1988).
3
Strickland at 687.
4
Id. at 689.
5
Burns v. State, 76 A.3d 780, 785 (Del. 2013) (citing Lafler v. Cooper, 566 U.S. 156, 162 (2012)).
4
As to the prejudice prong, Defendant must demonstrate that there exists a
reasonable probability that, but for Trial Counsel’s errors, the outcome of the trial
would have been different.6 Even if Trial Counsel’s performance was professionally
unreasonable, it would not warrant setting aside the judgment of conviction if the
error had no effect on the judgment.7 A showing of prejudice “requires more than a
showing of theoretical possibility that the outcome was affected.”8 Defendant has
the burden to "affirmatively prove prejudice."9
Strickland teaches that there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in a particular order, or even to address both
prongs of the inquiry if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant because of the alleged
deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, that course should be followed.10 In every case, the court
should be concerned with whether, despite the strong presumption of reliability, the
result of the particular proceeding is unreliable because of a breakdown in the
6
Albury, at 687; Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003); Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
7
Strickland, at 691.
8
Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992).
9
Burns v. State, 76 A.3d 780, 784-785 (Del. 2013) (quoting Strickland, 466 U.S. at 693). 10
Strickland, at 697.
5
adversarial process that our system counts on to produce just results.11
III. ARGUMENTS OF PARTIES
Ineffective Assistance of Counsel
Defendant asserts one ineffective assistance of counsel claim. He asserts that
he suffered prejudice in the form of a felony jury conviction (as opposed to a
misdemeanor guilty plea) because Trial Counsel gave him deficient advice as to
whether to accept the plea offer from the State based on a misunderstanding of
Delaware law.
Defendant emphasizes the ellipses in the Trial Counsel Affidavit, coupled
with the statements in Defendant’s affidavit. For example, Trial Counsel does not
address the statement in Defendant’s affidavit that he told Trial Counsel that his
objective was to avoid a felony conviction at all costs, even if that meant Level
5 time. Nor does Trial Counsel address the statement in Defendant’s affidavit
that Trial Counsel told Defendant that the case was "beatable" due to poor evidence
handling by the State. Nor does Trial Counsel address his statement to Defendant
that the State could not prove that the gun seized from Defendant was the same gun
that was in evidence at trial. Trial Counsel does not explain his statement to the Court
at final case review that he had explained to Defendant that “there are some decent
11
Id. at 696.
6
issues here.” In other words, Defendant argues that what Trial Counsel thought
were decent trial issues were in fact not, based on his misapprehension of
Delaware law.
Performance
Defendant gives three examples of how Trial Counsel’s decisions during trial
were unreasonable: a challenge to the admissibility of the firearm, a challenge to the
accessibility and availability of the firearm, and an argument that the State was
required to prove that Defendant did not have a concealed carry permit. Defendant
states that these deficiencies were based on Trial Counsel’s flawed understanding of
how CCDW trials work.
First, in an email to the State, Trial Counsel stated that he believed that the
length of time it took for the police to find the gun tended to negate the element of
concealment. Defendant argues that Trial Counsel’s request to take the question
of concealment of the firearm from the jury by way of his first motion for a
judgment of acquittal was misguided. As I stated in my denial of the motion,
concealment is a classic jury issue. Defendant further argues that hiding a gun
under a passenger seat is quintessential concealment of a firearm, and the length
of time it took to find the gun is evidence of concealment, not the lack thereof.
Second, Trial Counsel spent considerable time during the trial eliciting
testimony about the discrepancy between the .40 caliber vs. 40mm size of the gun and
7
the ammunition. This discrepancy appears to be a scrivener’s error. After the first
day of trial, Trial Counsel described this to Defendant as a smokescreen.
Third, Trial Counsel indicated in text messages to Defendant that Delaware
law requires the State to prove lack of a concealed carry permit in a CCDW trial and
made a second motion for a judgment of acquittal on that basis. Rather, as I stated when
denying this motion, Delaware law provides that it is a defense that may have been raised by a
defendant.
Taken together, Defendant argues that these actions demonstrate that Trial Counsel’s
representation “fell below an objective standard of reasonableness” under the
Strickland standard.
The State argues that Trial Counsel’s performance was not deficient when
it came to the plea offer. He recommended the plea to Defendant more than once
prior to trial. In fact, he was the one who initially proposed the misdemeanor offer
to the State, and he advised Defendant to accept the misdemeanor probation plea.
Additionally, Trial Counsel continued to negotiate for Defendant throughout
the legal process leading up to when Defendant rejected the final plea offer at final
case review. Defendant was the one rejecting the plea because, inter alia, he was
hesitant to be on probation. At no point was the State willing to remove probation
entirely from the plea offer or go below Level 2 probation, which was made
abundantly clear through communications with the defense. Defendant’s rejection
8
of the plea was confirmed by his signature on the plea form and during his plea
rejection colloquy with me. Defendant chose to exercise his right to trial, and Trial
Counsel performed as a competent attorney and proceeded to trial on the defenses
which he perceived to be available.
Prejudice
Defendant argues that the deficiencies in Trial Counsel’s performance,
discussed above, prejudiced the outcome of the case, and that Defendant should
not have to suffer a felony conviction because Trial Counsel gave him deficient
advice. The State argues that Trial Counsel’s performance was not deficient, and that
the outcome of the case would not have been different and therefore Defendant was not
prejudiced. The State relies heavily on the history of the guilty plea negotiations in the
case.
The State first offered Defendant a misdemeanor CCDI with Level 3 probation,
which Defendant rejected. On September 12, 2025, the State communicated with
Trial Counsel via email regarding Defendant’s rejection of the plea offer and the
anticipation that this case was headed to trial. On September 19, 2025, prior to Final
Case Review, the State sent another email regarding Defendant’s rejection of the
plea offer. In that email, the State repeated that it knew Defendant had rejected the
misdemeanor offer of CCDI, but it re-extended the offer at a lower probation level,
9
Level 2. On September 19, 2025, Trial Counsel responded that he had attempted to
communicate the new plea offer to Defendant and was awaiting a response. Trial
Counsel also indicated to the State that he had previously recommended to
Defendant that the Movant accept the misdemeanor CCDI offer and he also
attempted to negotiate an even lower probation level, Level 1. The State declined to
lower the probation level further.
On September 23, 2025, at final case review, the State and Trial Counsel
negotiated again. Trial Counsel informed the State that he had recommended the
misdemeanor plea offer to Defendant, but Trial Counsel submitted a signed copy of
the plea indicating that Defendant had rejected the plea offer. Trial Counsel
attempted to further negotiate a plea that would include probation before judgment,
which the State declined. At final case review, I held a plea rejection colloquy
with Defendant, during which he was made aware of the felony charge he faced
at trial and the potential sentence. During this plea rejection colloquy, Trial
Counsel stated, "I did tell him I would pursue all logical arguments, both for a
motion to acquit and then before the jury, but I don't know what a judge or jury is
going to do." Furthermore, on the record, Trial Counsel stated "I told him that this
plea agreement is going to be null and void as of this morning due to his signature.
So, if he's convicted, he loses primarily what he is seeking to keep.” I addressed
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Defendant directly: "And the final case review today is the last chance to resolve
this with a plea agreement." Later I warned Defendant: "Also, too, just so you
understand, because we are going to be bringing in a large number of potential
jurors, we don't allow people to plead the morning of trial. So, if you show up
and thought about it over the weekend and said: You know what? I've changed my
mind. It's going to be too late at that point." Even after those statements by Trial
Counsel and me, Defendant rejected the plea offer and his case was set for trial.
Once the case was set for trial and trial began, the State did not re-extend a plea
offer.
The State argues that, even if Trial Counsel made D e f e n d a n t ’ s potential
case seem stronger than it actually was, Defendant was not prejudiced because
Trial Counsel repeatedly recommended the plea to Defendant. Trial Counsel
advised Defendant to take the plea even at the final case review and stated on the
record that he did not know what a judge or jury was going to do. Defendant had
another chance to contemplate the plea during the plea rejection colloquy but instead
r e j e c t e d the plea. In the Motion, Defendant states that he rejected the plea, even
though he would have rather done prison time than get a felony on his record.
But he did not need to do "prison time" in order to avoid a felony – he had
multiple opportunities to accept a misdemeanor plea offer with probation. Each
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time, Trial Counsel communicated the plea offer to his client and recommended
that his client take the plea offer to avoid exposure to a felony at trial.
IV. ANALYSIS
The parties argue two principal cases for their respective positions.
In Burns v. State,12 the Delaware Supreme Court addressed the issue of
ineffective assistance of counsel during plea negotiations. In Burns, trial counsel
communicated the plea to the defendant and explained that the defendant faced
jail time if he was unsuccessful at trial. 13 Trial counsel also explained the
downside of accepting the plea offer, but stressed that the plea was "generous."14
Trial counsel in Burns gave his professional opinion that the case was "winnable"
but did not make a recommendation as to whether the defendant should take the
plea or not.15
As to the first Strickland prong, the Court found that the Superior Court
did not abuse its discretion in finding that trial counsel's conduct did not fall
below objective standards of reasonableness. The Court reasoned that trial
counsel explained the benefits of accepting the plea offer, articulated the
potential of mandatory incarceration, the downsides of accepting the plea offer,
12
76 A.3d 780 (Del. 2013).
13
Id. at 785.
14
Id.
15
Id.
12
his professional opinion that the case could be won, and that trial counsel could
not guarantee a successful result. 16 As such, the Court found that trial counsel
presented the defendant with enough information to make an informed decision
about whether or not to accept the plea.17
As for the second Strickland prong, the defendant in Burns claimed that he
would have accepted the plea if trial counsel had recommended it.18 The Court
found that the defendant "failed to satisfy the prejudice prong of Strickland, as
refined by Lafler, that but for trial counsel's actions, [the defendant] would have
accepted the plea offer."19 The Court referenced the fact that "at the time of the
offer [the defendant] insisted that he would not accept a plea that included
registration as a sex offender."22
In Lafler v. Cooper,20 the prosecution offered to dismiss certain charges and
to recommend a sentence of a certain length for the remaining charges in exchange
for a guilty plea.21 "In a communication with the court [the defendant] admitted
guilt and expressed a willingness to accept the offer."22 The defendant later rejected
the offer, "allegedly after his attorney convinced him that the prosecution would be
16
Id. at 786.
17
Id.
18
Id.
19
Id.
20
566 U.S. at 156 (2012).
21
Id. at 161.
22
Id.
13
unable to establish his intent to murder …"23 On the first day of trial, the prosecution
offered another, less favorable plea deal, and the defendant rejected it.24 In Lafler,
"all parties agreed that the performance of the defendant's counsel was deficient
when he advised respondent to reject the plea offer on the grounds he could not
be convicted at trial."25 The U.S. Supreme Court clarified that it need not rule on
whether the counsel's actions were deficient because all of the parties agreed that
it was. Indeed, the Court went on to clarify that "an erroneous strategic prediction
about the outcome of a trial is not necessarily deficient performance." 26 The
Court in Lafler found that "but for counsel's deficient performance there is a
reasonable probability he and the trial court would have accepted the guilty
plea."27
In my view, this case is informed more by Burns rather than by Lafler. In
both Burns and this case, Trial Counsel indicated that the case was winnable, but
still outlined the plea, its benefits, and its risks. In both cases, Trial Counsel
indicated that winning was not a certainty. Defendant, like the defendant in Burns,
rejected the plea offer for a specific reason: in Burns, the defendant did not want to
be on the sex offender registry, which was a part of the plea. In this case, Defendant
23
Id.
24
Id.
25
Id. at 163.
26
Id. at 174.
27
Id.
14
did not want to be on probation. Indeed, in this case, unlike Burns, Trial Counsel
affirmatively recommended the plea offer to Defendant, whereas trial counsel in
Burns did not.
In Lafler, the defendant wanted to accept the offered plea deal and only
changed his mind when trial counsel advised him that the State could not prove
an element of the charge. In this case, Defendant rejected multiple misdemeanor
plea offers, despite the recommendation of Trial Counsel that he accept them.
Defendant rejected the plea offers because the State declined to eliminate the
condition of probation, which is different from asserting his innocence or a belief
that the State could not prove the charge against him.
*****
In this case, there are two separate narratives. One is the advice that Trial
Counsel gave to Defendant about possible defenses. The other is the repeated and
knowing rejection of several plea offers by Defendant. In order to demonstrate a
causal connection between the two and thereby satisfy the two prongs of the
Strickland test, Defendant conflates the two.
Defendant laments that “we will never know” whether there is such a
connection, because of the lack of an evidentiary hearing during which I could hear
testimony, consider evidence, and judge credibility. However, as I stated in my
denial of Defendant’s Motion for Reargument, it is within my discretion to hold an
15
evidentiary hearing or to decide the case based on the record. I find now, as I did
then, that the evidence of record is sufficient to decide this case. In my view,
Defendant’s statements that he was induced to reject the plea offers by Trial
Counsel’s deficient performance are self-serving and not credible, when the rest of
the record – including the Trial Counsel Affidavit and the State’s Response – is
considered. This is my conclusion even though, in his affidavit, Trial Counsel chose
to address only one of the parallel narratives. Trial Counsel is not required in his
affidavit to address every allegation made against him by Defendant. Trial Counsel’s
statements about the consistency of Defendant’s rejection of the numerous plea
offers – including one proffered by Trial Counsel himself – are persuasive and
buttressed by the record, my plea colloquies with Defendant.
V. CONCLUSION
For the foregoing reasons, Defendant Harold Ward’s Motion for
Postconviction Relief is DENIED.
IT IS SO ORDERED.
Craig A. Karsnitz
/s/ Craig A. Karsnitz
cc: Prothonotary
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