        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE                      )
                                       )
        v.                             )       ID# 1301011737
                                       )
STEVEN DOLLARD,                        )
                                       )
             Defendant.                )

                                   ORDER

        AND NOW TO WIT, this 22nd day of March, 2016, upon consideration of

the Defendant’s Motion for Appointment of Counsel 1 and Pro Se Motion for

Postconviction Relief, 2 and the record in this case, IT APPEARS THAT:

        1. Steven Dollard (“Defendant”) pled guilty to Drug Dealing (Class D

Felony) and Possession of Drug Paraphernalia on August 1, 2013. 3            On

October 4, 2013, Defendant was declared a habitual offender and was sentenced to

eighteen months at Level V incarceration for Drug Dealing, and six months at

Level V incarceration for Drug Paraphernalia.4 Defendant did not file a direct

appeal.

        2.   On August 14, 2014, Defendant filed the instant Motion for

Postconviction Relief pursuant to Superior Court Criminal Rule 61 (“Rule 61

Motion”) and on December 15, 2015, Defendant filed a Motion for Appointment

1
  D.I. 22.
2
  D.I. 21.
3
  D.I. 12.
4
  D.I. 14.
of Counsel.5 Defendant’s Motions are governed by the version of Rule 61 that

took effect on June 4, 2014. Pursuant to Rule 61(2)(e), in “first postconviction

motions in guilty plea cases:”

      The judge may appoint counsel for an indigent movant’s first timely
      postconviction motion and request for appointment of counsel if the
      motion seeks to set aside a judgment of conviction that resulted from a
      plea of guilty or nolo contendere only if the judge determines that: (i)
      the conviction has been affirmed by final order upon direct appellate
      review or direct appellate review is unavailable; (ii) the motion sets
      forth a substantial claim that the movant received ineffective assistance
      of counsel in relation to the plea of guilty or nolo contendere; (iii)
      granting the motion would result in vacatur of the judgment of
      conviction for which the movant is in custody; and (iv) specific
      exceptional circumstances warrant the appointment of counsel.

      3.    Defendant’s Motion for Appointment of Counsel is untimely and

Defendant is not entitled to counsel.           The motion was filed more than one year

after the final judgment of conviction and Defendant does not assert a retroactively

applicable right. 6

       4. Before addressing the merits of any claim for postconviction relief, the

Court must first determine whether any of the procedural bars under Rule 61 are




5
  D.I. 21, 22.
6
  Under Rule 61(i)(1), a motion for postconviction relief is untimely if it is filed more than one
year after a final judgment of conviction, or if the motion asserts a newly recognized,
retroactively applied right more than one year after it is first recognized. Pursuant to Rule 61(m),
if a defendant does not file a direct appeal, a judgment of conviction is final for purposes of Rule
61 thirty days after the Superior Court imposes sentence. Defendant did not file a direct appeal.
Defendant was sentenced on October 4, 2013, and did not file his Rule 61 motion until
August 15, 2014.
                                                 2
applicable. 7 Under Rule 61(i), a Rule 61 Motion can be procedurally barred for

time      limitations,    successive     motions,      procedural   defaults,   and   former

adjudications.

         5. Rule 61(i)(1) provides that a motion for postconviction relief is untimely

if it is filed more than one year after a final judgment of conviction, or if the

motion asserts a newly recognized, retroactively applied right more than one year

after it is first recognized. Under Rule 61(i)(2) successive motions are prohibited

unless the pleading requirements of 61(d)(2)(i) or (ii) are met. Rule 61(i)(3) bars

consideration any ground for relief “not asserted in the proceedings leading to the

judgment of conviction,” unless the movant can show “cause for relief from the

procedural default” and “prejudice from violation of the movant’s rights.”

Rule 61(i)(4) bars consideration of any ground for relief formerly adjudicated in

the case.

         6. If a procedural bar exists, the Court will not consider the merits of the

claims unless the defendant can show that an exception found in Rule 61(i)(5)

applies. Rule 61(i)(5) provides that consideration of otherwise procedurally barred

claims is limited to claims that the Court lacked jurisdiction, or claims that satisfy

the pleading requirements set forth in 61(d)(2)(i) and (ii). Rule 61(d)(2)(i) and (ii)

require that the Rule 61 Motion either: (i) pleads with particularity that new


7
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).
                                                 3
evidence exists that creates a strong inference that the movant is actually innocent

in fact of the acts underlying the charges of which he was convicted; or (ii) pleads

with particularity a claim that a new rule of constitutional law, made retroactive to

cases on collateral review by the United States Supreme Court or the Delaware

Supreme Court, applies to the movant’s case and renders the conviction invalid.

         7. Defendant’s first three grounds for relief relate to misconduct at the

Office of the Chief Medical Examiner (“OCME”). Defendant argues that: (1) drug

evidence obtained from the Defendant’s residence was tested at the OCME when

there were evidence-handling problems at the OCME; (2) the drug lab reports were

never disclosed to Defendant in violation of Brady v. United States; and (3) the

State did not establish a chain of custody over the drugs.8 Defendant also argues

that his counsel was ineffective for failing to make inquiries relating to these Brady

violations.

         8. Defendant’s Rule 61 Motion is procedurally barred by Rule 61(i)(1),9 and

Defendant is unable to overcome this procedural hurdle by showing an exception

in Rule 61(i)(5) applies.

         9. In prior decisions, the Delaware Supreme Court has consistently found

that “when defendants freely admitted their guilt by admitting that they possessed

illegal narcotics, their lack of knowledge that the OCME’s evidence-handling

8
    D.I. 21.
9
    See supra note 6.
                                          4
practices were seriously flawed and that some OCME employees had engaged in

malfeasance, did not invalidate their pleas.” 10 The Supreme Court has made clear

that evidence of poor evidence-handling practices at the OCME are “not a license

for every defendant to obtain a get-out-of-jail-free card,” and that “relief should be

granted to a defendant only when the problems at the OCME could be said to have

contributed to an unfair conviction.”11

       10. Defendant admitted that he was guilty of drug dealing in 2013, and any

misconduct at the OCME did not affect the validity of Defendant’s guilty plea. The

plea colloquy reflects that Defendant knowingly, voluntarily, and intelligently pled

guilty. Defendant has “submitted no evidence to suggest a natural inference that

any misconduct at the OCME (or lack of knowledge of that conduct) coerced or

otherwise induced the defendant[] to falsely plead guilty.” 12 By pleading guilty,

Defendant “waived any right he had to test the strength of the State’s evidence

10
   Aricidiacono v. State, 125 A.3d 677, 678–79 (Del. 2015) (citing Anzara Brown v. State, 117
A.3d 568 (Del. 2015); Brewer v. State, 119 A.3d 42 (Del. 2015); Patrick L. Brown v. State, 119
A.3d 42 (Del. 2015); Carrero v. State, 115 A.3d 1214 (Del. 2015); McMillan v. State, 115 A.3d
1215 (Del. 2015); State v. Irwin, 2014 WL 6734821 (Del. Super. 2014)).
11
   A 2014 investigation revealed that some of the OCME employees had stolen drug evidence
stored at the OCME. Aricidiacono, 125 A.3d at 677–79. The Supreme Court noted, “[t]o date,
those problems, although including substantial evidence of sloppiness and allegations of
‘drylabbing,’ do not in any way involve evidence-planting. To the contrary, much of the
uncovered misconduct seemed to be inspired by the reality that the evidence seized from
defendants in fact involved illegal narcotics, and the temptation this provided to certain
employees to steal some of that evidence for their personal use and for resale.” Id. at 678.
12
   Id. at 679. “Under Brady, a guilty plea is considered involuntary if it is ‘induced by threats (or
promises to discontinue improper harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor's business (e.g. bribes).’” Id. (citing Brady, 397 U.S. at
755).
                                                 5
against him at trial, including the chain of custody of the drug evidence that he

claims he was entitled to receive.” 13 Accordingly, grounds one, two, and three are

procedurally barred by Rule 61(i)(1) and meritless.

       11. To prevail on a claim of ineffective assistance of counsel after entry of a

guilty plea, a defendant must demonstrate that: “(a) counsel’s conduct fell below

an objective standard of reasonableness; and (b) there is a reasonable probability

that, but for counsel’s errors, the defendant would not have pled guilty but would

have insisted on going to trial, resulting in his acquittal.”14 “Conclusory and

unsupported claims of prejudice are insufficient to establish ineffective assistance;

a defendant must make and substantiate concrete claims of actual prejudice.”15

       12.    Defendant’s claim of ineffective assistance of counsel relates to

counsel’s alleged failure to make inquiries into the chain of custody of the drug

evidence. Defendant asserts that his counsel’s ineffectiveness is evidenced by the

fact that his “drug case falls directly within the time of the medical examiner’s

office scandal.”16 Defendant has failed to make any concrete allegations of either

cause or prejudice, and therefore, his claim of ineffective assistance of counsel is

meritless. Defendant’s conclusory claim of ineffective assistance of counsel is



13
   Brown v. State, 2015 WL 3372271, at *2 (Del. 2015).
14
   Ashley v. State, 77 A.3d 271 (Del. 2013).
15
   Sartin v. State, 103 A.3d 515 (Del. 2014).
16
   D.I. 21.
                                              6
procedurally barred by Rule 61(i)(1), and Defendant has failed to overcome this

procedural hurdle by showing that an exception in Rule 61(i)(5) applies.

      NOW THEREFORE, Defendant’s Motion for Appointment of Counsel

and Pro Se Motion for Postconviction Relief are DENIED.

      IT IS SO ORDERED.




                                             Jan R. Jurden, President Judge




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