State v. McCrary

── State v. McCrary ── Court: Superior Court of Delaware Date: April 24, 2026 Category: General IN THE SUPERIOR COURT OF THE STATE OF DELAWARE STATE OF DELAWARE, : : : ID. No. 1906013738 v. : : TIMOTHY MCCRARY, : : Defendant. : : Submitted: March 30, 2026 Decided: April 24, 2026 ORDER On this 24th day of April 2026, having considered Defendant Timothy McCrary’s appeal of the Commissioner’s Report and Recommendation denying his motion for postconviction relief (hereinafter, the “Report”), Mr. McCrary’s written objection to the Report, and the State’s response to that objection, it appears that: 1. Defendant Timothy McCrary was convicted of four counts of Unlawful Sexual Contact First Degree after a bench trial. The Court sentenced him to twenty years’ incarceration—comprised of four consecutive mandatory five-year terms— followed by extended probation. He contends in his motion that his trial counsel performed deficiently because he did not advocate merging the sentences for two of the counts. He seeks reduction of the length of his incarceration by a net of five years. 2. As background, Mr. McCrary appealed his convictions to the Delaware Supreme Court. There, he argued that (1) the Superior Court violated the Confrontation Clause when it considered two prior, out-of-court statements admitted under 13 Del. C. § 3513, (2) the Superior Court abused its discretion when it admitted another victim’s prior, out-of-court statement under 11 Del. C. § 3507 without sufficient foundation, and (3) the cumulative prejudice of those errors deprived him of a fair trial. The Delaware Supreme Court rejected those arguments and affirmed Mr. McCrary’s convictions.1 3. Mr. McCrary next filed pro se motions for postconviction relief and appointment of counsel.2 The Court granted the latter.3 Postconviction counsel then filed a motion to withdraw after representing that Mr. McCrary had no non-frivolous grounds for postconviction relief.4 Presently, Mr. McCrary proceeds pro se after filing an amended Rule 61 motion.5 4. After considering the parties’ positions regarding the amended motion, the Commissioner issued her findings and recommendations in the Report.6 From the outset, how the Report applied Superior Court Criminal Rule 61(i)(4)’s procedural bar is unclear. At times, the Report seems to indicate that his claims are barred in their entirety.7 Elsewhere, the Report correctly recognizes that at least one of his contentions implicate an ineffective assistance of counsel claim, which is not procedurally barred.8 As to the former, Mr. McCrary’s redundant arguments regarding the admissibility of evidence were raised and rejected on direct appeal. The Report correctly recognizes that they are procedurally barred because they meet no recognized exception. As to the latter reference, a blanket procedural bar imposed against all claims would be inappropriate because one of his contentions—the one 1 McCrary v. State, 290 A.3d 442, 445 (Del. 2023). 2 D.I.s 88, 89. 3 D.I. 90. 4 D.I. 111. 5 D.I. 116. 6 D.I. 136. 7 Id. at 12, 17. 8 Id. at 14. he raises on appeal—alleges ineffective assistance of counsel.9 As to the substance of his ineffective assistance claim, the Report found that Mr. McCrary’s ineffective assistance claim failed.10 5. The Court’s scope of review when considering Mr. McCrary’s objection requires the review de novo of only the objected-to portions of the Report.11 Accordingly, the Court considers Mr. McCrary’s contention that trial counsel should have advocated for merger of two of his USC convictions—counts 3 and 4—at sentencing. He argues