      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


                    IN AND FOR NEW CASTLE COUNTY




STATE OF DELAWARE,                   )
                                     )
            v.                       )     Cr. ID No. 1210011253
                                     )
RICHARD DILLARD,                     )
                                     )
      Defendant.                     )



                           Submitted: March 31, 2014
                            Decided: June 30, 2014


                    Upon Consideration of Defendant’s Motion
                      For Postconviction Relief, DENIED.
                 Upon Counsel’s Motion to Withdraw, GRANTED.

                                   OPINION

Brian J. Robertson, Deputy Attorney General, Department of Justice, Carvel State
Office Building, 820 North French Street Wilmington, Delaware, Attorney for the
State.

John P. Deckers, Esquire, 800 North King Street, Suite 303, Wilmington, DE
19801.

Richard Dillard, James T. Vaughn Correctional Center, Smyrna, Delaware 19977,
pro se.


MEDINILLA, J.
                                INTRODUCTION

      Defendant Richard Dillard (“Defendant”) entered a plea of guilty to drug

dealing on June 17, 2013. Defendant did not file an appeal to the Supreme Court

of Delaware. Defendant filed the instant Motion for Postconviction Relief on

August 1, 2013. Defendant was appointed counsel, who filed a Motion to

Withdraw on February 2, 2014. This Court will consider both Defendant’s Motion

for Postconviction Relief as well as Defense Counsel’s Motion to Withdraw. For

the reasons stated below, Defendant’s Motion for Postconviction Relief is

DENIED. Counsel’s Motion to Withdraw is GRANTED.


                  FACTUAL AND PROCEDURAL HISTORY


      On October 16, 2012, Defendant was detained by the Wilmington Police

Department following a motor vehicle stop for a license plate infraction. As law

enforcement officers approached Defendant’s vehicle, they suspected he was

attempting to hide an unknown object. Upon approaching Mr. Dillard, the officers

detected an odor of marijuana and observed in plain view several bags of

marijuana in the center console. Defendant was asked to step out of his vehicle,

detained for further investigation, and his vehicle was transported to the police

station. During a subsequent inventory search, 3,941 grams-or approximately eight

(8) pounds-of marijuana were found in the trunk of the vehicle.


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      On January 22, 2013, Defendant was indicted on the following counts: Drug

Dealing, Aggravated Possession, Possession of Drug Paraphernalia, Spinning

Tires, No Proof of Insurance, and Failure to Transfer Title and Registration, in

violation of 16 Del. C. §§ 4752(1), 4752(4), 4771,and 21 Del. C. §§ 4172, 2118(a),

and 2503, respectively.


      Defendant filed a Motion to Suppress Evidence on March 26, 2013, which

was subsequently withdrawn on May 7, 2013. On June 17, 2013, at his final case

review, Defendant entered a plea of guilty to one count of Drug Dealing, in

violation of 16 Del. C. § 4752(1), and was immediately sentenced.


      Defendant filed this Motion for Postconviction Relief on August 1, 2013.

As this is his first motion, pursuant to Rule 61(e)(1), counsel was appointed for the

purpose of representing Defendant (“Rule 61 Counsel”). Rule 61 Counsel filed a

Motion to Withdraw as Counsel on February 6, 2014. In order to thoroughly

evaluate Defendant’s Rule 61 Motion, and Rule 61 Counsel’s Motion to Withdraw,

this Court enlarged the record by directing Defendant’s trial counsel to submit an

affidavit responding to Defendant’s claims. Trial Counsel’s affidavit was filed on

March 18, 2014. The State filed a response to Defendant’s Motion for

Postconviction Relief on March 31, 2014. This is the Court’s ruling with respect

to both Motions to Withdraw as Counsel and for Postconviction Relief.


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                                         DISCUSSION


                       MOTION TO WITHDRAW AS COUNSEL

         This Court will first consider Defense Counsel’s Motion to Withdraw. Rule

61(e)(2) provides:

                 If counsel considers the movant's claim to be so lacking
                 in merit that counsel cannot ethically advocate it, and
                 counsel is not aware of any other substantial ground for
                 relief available to the movant, counsel may move to
                 withdraw. The motion shall explain the factual and legal
                 basis for counsel's opinion and shall give notice that the
                 movant may file a response to the motion within 30 days
                 of service of the motion upon the movant.

         In his Motion to Withdraw, Rule 61 Counsel represents that he carefully

considered Defendant’s grounds for relief, and determined each to be without

merit. 1 Rule 61 Counsel further represented that, following a careful review of the

record, he found no other substantial claim for relief available to Defendant. 2 The

Motion to Withdraw includes a detailed description of both factual and legal bases

for Rule 61 Counsel’s opinion and properly noticed Defendant that he would have

30 days to respond. Defendant did not respond.




1
    Motion to Withdraw at 8-9, State v. Dillard, Case No. 1210011253 (Del. Super. Feb 2, 2014).
2
    Id. at 12.
                                                 4
         This Court also conducted its own review of the record, and is satisfied that

Rule 61 Counsel properly determined that Defendant does not have a meritorious

claim. 3 For the above reasons, Defense Counsel’s Motion to Withdraw as Counsel

is GRANTED.


                   MOTION FOR POSTCONVICTION RELIEF

         Defendant seeks relief pursuant to Rule 61 based on three theories: (1)

Defendant’s trial counsel was ineffective, (2) Defendant’s Fourth Amendment and

Delaware Constitutional rights against unreasonable search and seizures were

violated, and (3) Defendant’s Double Jeopardy right was violated.


    I.      Procedural Considerations


         Prior to addressing the substantive merits of any claim for postconviction

relief, the Court must first determine whether Defendant has met the procedural

requirements of Superior Court Criminal Rule 61. 4 If a procedural bar exists, then

the claim is barred, and the Court should not consider the merits of the claim. 5

Specifically, Rule 61(i) imposes four procedural imperatives: (1) the motion must

be filed within three years of a final order of conviction; (2) any basis for relief

must have been asserted previously in a prior postconviction proceeding; (3) any


3
  Roth v. State, 2013 WL 5918509, at *1 (Del. 2013).
4
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
5
  Id.
                                              5
basis for relief must have been asserted at trial or on direct appeal as required by

the court rules unless the movant shows prejudice to his rights or cause for relief;

and (4) any basis for relief must not have been formally adjudicated in any

proceeding.


      The Court considers the four mandates and determines that Defendant’s

claims in the instant Motion are not time-barred by Rule 61(i)(1), this is

Defendant’s first Motion for Postconviction Relief, and none of the claims put

forth in this motion were previously asserted.


      Defendant, however, faces a procedural barrier under Rule 61(i)(3) because

none of the grounds for relief were asserted in the proceedings leading to the

judgment of conviction. This bar, however, can potentially be overcome if

Defendant falls within the exception set out in Rule 61(i)(5):


              The bars to relief in paragraphs (1), (2), and (3) of this
              subdivision shall not apply to a claim that the court
              lacked jurisdiction or to a colorable claim that there was
              a miscarriage of justice because of a constitutional
              violation that undermined the fundamental legality,
              reliability, integrity or fairness of the proceedings leading
              to the judgment of conviction.

      The “miscarriage of justice” or “fundamental fairness” exception contained

in Rule 61(i)(5) is “[a] narrow one and has been applied only in limited

circumstances, such as when the right relied upon has been recognized for the first

                                            6
time after a direct appeal.” 6 This exception may also apply to a claim of mistaken

waiver of fundamental constitutional rights, such as rights to trial, counsel,

confrontation, the opportunity to present evidence, protection from self-

incrimination and appeal. 7 Accordingly, when a petitioner puts forth a colorable

claim of mistaken waiver of constitutional rights, Rule 61(i)(5) is available to him. 8

For the reasons below, this Court finds that Defendant’s claims do not fall under

the exception contained in Rule 61(i)(5).


    II.      Defendant’s Claims

             a. Ineffective Assistance of Counsel


          Defendant first claims that trial counsel’s performance “fell below an

objective standard of reasonableness,” and that, but for this deficient performance,

Defendant would not have accepted an offer to plead guilty.


          In order to prevail on an ineffective assistance of counsel claim, a defendant

must meet the two-pronged Strickland test by showing that: (1) counsel performed

at a level “below an objective standard of reasonableness” and that, (2) the

deficient performance prejudiced the defense. 9 In the context of a plea challenge, a


6
  Younger, 580 A.2d at 555 (citing Teague v. Lane, 489 U.S. 288, 297-99 (1989)) (emphasis
added).
7
  Webster v. State, 604 A.2d 1364, 1366 (Del.1992).
8
  Id.
9
  Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
                                              7
defendant must establish that his counsel’s conduct was deficient and that his

counsel’s deficient actions were so prejudicial that there was a reasonable

probability that, but for counsel’s deficiencies, the defendant would not have taken

a plea but would have insisted on going to trial.10


       This Court finds that Defendant’s ineffective assistance claim does not meet

this standard. Defendant does not allege a single fact in support of this argument,

but rather, simply parrots the rules from the controlling case law. Conclusory

allegations are insufficient to establish a claim of ineffective assistance of

counsel. 11 Defendant’s signed Plea Agreement, the Truth-in-Sentencing Guilty

Plea Form and the full colloquy before this Court, provide more than substantial

evidence indicating that Defendant knowingly, voluntarily, and intelligently

entered into the plea agreement. Defendant has failed to substantiate or make any

evidentiary showing that he did not understand the nature or associated penalties of

the charges to which he pled. Defendant fails to establish a violation of his Sixth

Amendment right, and fails to establish that there was a miscarriage of justice

because of a constitutional violation pursuant to Rule 61(i)(5). 12


           b. Unreasonable Search and Seizure


10
   Hill v. Lockhart, 474 U.S. 52, 59 (1985).
11
   See Younger, 580 A.2d at 556 (“[defendant] has made no concrete allegations of “cause” . . .
and thus, does not substantiate to any degree such a claim.”).
12
   State v. Condon, 2003 WL 1364619 at *6 (2003).
                                                8
       Defendant next claims as follows:


              VIOLATION OF 4TH AMEND “SEARCH AND
              SEIZURES” UPON REVIEW OF THIS NATURE, THE
              FINDINGS OF PROBABLE CAUSE WOULD BE
              DISTRUB, AND FINDINGS OF EVIDENCE, A
              CLEARLY WRONG AND DOING OF JUSTICE,
              ASSERTS CLAIMS REASONABLE EXPECTATION
              OF PRIVACY

       Defendant’s suppression argument was not pursued at trial and is therefore

barred by Rule 61(i)(3). Trial counsel filed a Motion to Suppress, and

subsequently withdrew it. Trial Counsel explained in his affidavit that the motion

was withdrawn because “(i) there was a significant chance of a negative ruling and

(ii) if . . . unsuccessful, the prosecutor had little incentive to exercise leniency

when extending a plea offer. Trial Counsel’s assessment of the suppression issues

is corroborated by Rule 61 Counsel’s Motion to Withdraw, which stated

“suppression of the evidence was a long shot at best.” 13


       Upon examination of Defendant’s claim, this Court finds it lacking in both

substance and merit. Defendant waived his right to challenge any alleged errors or

defects prior to the entry of his plea, even those of constitutional proportions. 14

Moreover, the record reflects that Defendant was lawfully stopped, marijuana was

observed in plain view, and Defendant was legally arrested. The subsequent
13
  Motion to Withdraw at 11, State v. Dillard, Case No. 1210011253 (Del. Super. Feb 2, 2014).
14
  Sommerville v. State, 703 A.2d 629, 632 (Del. 1997); Modjica v. State, 2009 WL 2426675
(Del. 2009); Miller v. State, 840 A.2d 1229, 1232 (Del. 2004).
                                              9
search of the vehicle was a valid inventory search. Without any indication of how

Defendant’s fundamental rights against search and seizures were violated,

Defendant has failed to meet his burden under the “miscarriage of justice”

exception of Rule 61(i)(5).


             c. Double Jeopardy


         Defendant’s third and final claim is captioned “Violation of 5th Amendment,

Double Jeopardy,” and puts forth the following contentions he represents as “facts”

in support of his claim:


                A VINDICTIVE PROSECUTION, THE AFFIDAVIT
                OF PROBABLE CAUSE CONTAINS INFORMATION
                WHICH REPRESENTS EITHER INTENTIONAL OR
                RECKLESS MISSTATEMENTS OF POLICE
                APPLICATION FOR SEARCH WARRNT [SIC].

         This claim is incomprehensible on its face, and does not conform to the

record. The Fifth Amendment to the U.S. Constitution protects a Defendant from

being put in jeopardy twice for the same offense. 15 The record does not in any way

support a claim of double jeopardy. The record is devoid of any support for

Defendant’s broad claim of vindictive prosecution or that he was put twice in

jeopardy for the same offense. Defendant’s reference to a search warrant is also



15
     U.S. CONST., amend. V.
                                           10
misplaced because there was no search warrant applied in this case.16 In sum, none

of Defendant’s claims meet the high standard required by the “miscarriage of

justice” exception, and the interests of justice do not require this Court to consider

this procedurally barred claim for relief.


       For all of the foregoing reasons, Defendant’s Motion for Postconviction

Relief is DENIED, and Rule 61 Counsel’s Motion to Withdraw is GRANTED.


       IT IS SO ORDERED.


                                                   /s/ Vivian L. Medinilla
                                                   Judge Vivian L. Medinilla

       cc:    Prothonotary




16
  Affidavit of Trial Counsel in Response to Defendant’s Motion for Post Conviction Relief at
12, State v. Dillard, Case No. 1210011253 (Del. Super. Mar. 18, 2014).


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