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State v. Dillard

Superior Court of Delaware

January 4, 2019


         Cr.A.Nos. IN14-11-0961, etc.

          Submitted: October 5, 2018

          Renee L. Hrivnak, Deputy Attorney General

          Natalie S. Woloshin, Esquire Patrick J. Collins, Esquire

          Mr. Krishan D. Dillard, pro se


          Paul R. Wallace, Judge.

         This 4th day of January, 2019, upon consideration of the Defendant Krishan D. Dillard's Motion for Postconviction Relief (D.I. 70), Dillard's amendments) to his application (D.I. 82 and 83), his trial/plea counsel's affidavits (D.I. 78, 90), the State's response to those submissions (D.I 86), Dillard's reply (D.I. 87), and the record in this matter, it appears to the Court that:

         (1) In January 2015, a grand jury indicted Defendant Krishan D. Dillard for attempted murder first degree, assault first degree, two counts of home invasion, two counts of burglary second degree, three counts of reckless endangering first degree, endangering the welfare of a child, nine related counts of possession of a deadly weapon during the commission of a felony, and possession of a deadly weapon by a person prohibited.[1]

         (2) These multiple offenses arose from an attack that occurred on November 6, 2014. Early that morning, Dillard illegally entered an "on-again, off-again" girlfriend's, J.B-J., [2] apartment. He carried with him a box of blue latex medical gloves. He donned a pair and armed himself with a kitchen knife. Dillard then went to J.B-J.'s bedroom and attacked her while she slept. J.B-J. woke to see Dillard on top of her. Dillard first stabbed her in the stomach then sliced her throat. J.B-J.'s 17-year-old sister, M.S., was in an adjoining bedroom and was awoken by J.B-J.'s screams as J.B-J. struggled and fought off Dillard. Dillard continued stabbing and slashing. M.S. went to her sister's aid and Dillard turned his attention to her. After stabbing and slashing M.S., Dillard tucked the knife in his pocket and fled the apartment. As a result of Dillard's attack, J.B-J. underwent emergency surgical repair of her liver, pancreas, neck and shoulder; she lost her gall bladder; and she suffered numerous other less serious injuries. M.S. was stabbed and slashed in the leg; her wounds required suturing.[3]

         (3) Both J.B-J. and M.S. positively identified Dillard as their attacker. He was arrested six days later in Maryland.[4]

         (4) At final case review, Dillard pleaded guilty to attempted murder first degree, assault second degree, reckless endangering first degree, and possession of a deadly weapon during the commission of a felony.[5] He did so in exchange for dismissal of the remaining charges in this indictment, dismissal of the charges from a second unrelated indictment, [6] and the State's favorable sentencing recommendation.[7]

         (5) Dillard's sentencing occurred several months later on July 22, 2016, after a pre-sentence investigative report was prepared. Dillard had earlier expressed a desire to withdraw his guilty plea.[8] After consultation with a second attorney, however, he decided not to challenge his guilty plea but to be sentenced under the terms of the plea.[9]

         (6) Dillard was sentenced: (a) for attempted murder - to 25 years at Level V, suspended after he serves 20 years imprisonment, for five years at Level IV-DOC Discretion, suspended after he completes a six-month Level IV term, for one year of Level III supervision with certain conditions including domestic violence and mental health treatment; (b) for assault second degree - to eight years at Level V to served pursuant to 11 Del. C. § 4214(a); (c) for possession of a deadly weapon during the commission of a felony - to five years at Level V; and (d) for reckless endangering - to five years at Level V suspended in its entirety for a concurrent probated term.[10]

         (7) Dillard filed no direct appeal from his conviction or sentence. But he earlier docketed an unsuccessful pro se motion under Superior Court Criminal Rule 35(b) requesting reduction of the 3 3-year unsuspended portion of his Level V term.[11]

         (8) Natalie S. Woloshin, Esquire, represented Dillard through all trial and plea proceedings in this Court.[12]

         (9) Dillard has now filed the instant timely motion for postconviction relief under Superior Court Criminal Rule 61.

         (10) Dillard suggests in his motion that his trial/plea counsel provided ineffective assistance because she allegedly:

(a) unduly pressured Dillard into accepting his guilty plea;
(b) provided improper advice regarding the entry of and potential withdrawal of that guilty plea;
(c) provided deficient representation regarding sentencing by (i) failing to review his pre-sentence investigative report with him and correct errors he believed were contained therein; and (ii) failing to adequately address the applicability of the then-very-recent changes to Delaware's Habitual Criminal Act;[13] and
(d) failed to file an appeal of his sentence to the Delaware Supreme Court, and to therein argue (i) that he was eligible for a reduced sentence under recent revisions to the Delaware Habitual Criminal Act[14] and (ii) "[a]bout the false victims [sic] report also the prosecutorial misconduct."[15]

         Dillard also claims that the State engaged in prosecutorial misconduct and the Court abused its discretion when addressing the amended Habitual Criminal Act and its applicability to his sentencing.[16]

         (11) The Court entered an order to expand the record to include "any materials that respond to the specific [ineffective assistance of counsel] allegation relating to Ms. Woloshin's representation [of Dillard]."[17] The Court denied Dillard's later request for appointment of counsel to pursue his Rule 61 motion.[18]

         (12) An inmate claiming ineffective assistance of counsel must demonstrate that: (a) his defense counsel's representation fell below an objective standard of reasonableness, and (b) there is a reasonable probability that but for counsel's errors, the result of the proceeding would have been different.[19] When addressing the prejudice prong of the ineffective assistance of counsel test in the context of a challenged guilty plea, an inmate must show "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."[20] When addressing the prejudice prong of the ineffective assistance of counsel test in the context of a sentencing hearing, an inmate must show that "there is a reasonable probability that, but for the counsel's error, the result of [his] sentencing would have been different."[21]

         (13) There is always a strong presumption that counsel's representation was reasonable.[22] Too, one claiming ineffective assistance "must make specific allegations of how defense counsel's conduct actually prejudiced the proceedings, rather than mere allegations of ineffectiveness."[23]And an inmate must satisfy the proof requirements of both prongs to succeed in making an ineffective assistance of counsel claim. Failure to do so on either prong will doom the claim, and the Court need not address the other.[24]

         (14) Dillard's is a timely postconviction relief motion under Superior Court Criminal Rule 6l[25] to which there are no procedural bars.[26]

         (15) Dillard's first two claims-that Ms. Woloshin allowed him to enter into a guilty plea under duress, coerced him into abandoning his efforts to withdraw that plea, and that, but for Ms. Woloshin's errors, he would have never pleaded guilty-are belied by the record. During Dillard's plea colloquy, Ms. Woloshin represented that she spent a considerable amount of time with him during her representation, thoroughly reviewed the evidence in his several cases, discussed the charges and potential sentences with Dillard, vigorously negotiated the plea (including disposition of resulting violations of probation from Dillard's previous convictions), and assured that Dillard understood the consequences of accepting the State's plea offer.[27]

         (16) Dillard, in a very detailed plea colloquy, confirmed under oath that: (a) he understood the charges to which he was pleading guilty; (b) he had committed those crimes; (c) he was waiving all trial rights; (d) he understood the sentencing provisions applicable in his case and his potential sentencing exposure; and (e) Ms. Woloshin had explained the plea forms, discussed with him the evidence in his case, and reviewed with him any possible defenses.[28] He denied that he needed to consult further with Ms. Woloshin before the Court accepted his plea.[29] And when asked whether he was satisfied with Ms. Woloshin's representation, Dillard replied, "I believe Ms. Woloshin has done a great job for me and I appreciate it."[30]

         (17) More than a month after Dillard entered his plea, he filed a pro se application to withdraw it.[31] Having consulted extensively with both Ms. Woloshin and a second attorney, [32] Dillard decided to abandon that effort and move forward with sentencing.[33] Dillard again appeared before the Court and personally confirmed that he did not want to withdraw the plea and that his decision was made after much reflection and after having obtained further advice from separate counsel.[34] When asked if he needed any further explanation of the status of his plea and pending sentencing, Dillard said, "No. The only thing I would like to say, I appreciate the opportunity to reevaluate in this situation. And I just want to thank you and the court as well for giving me this opportunity."[35]

         (18) Put simply, there is nothing to suggest duress or coercion in Dillard's proceedings. There being no clear and convincing contrary evidence, Dillard is bound by his answers recorded on the guilty plea forms and made during his colloquies both when entering the plea and when abandoning his efforts to withdraw it.[36]

         (19) The record of the court proceedings is amply supported by that developed on postconviction. Contrary to Dillard's contentions, the evidence demonstrates that Ms. Woloshin-through her own efforts, those of a retained private investigator, and with a retained mitigation specialist-fully _ investigated and considered alibi, mental health and other defenses.[37] Ms. Woloshin met with Dillard regularly pre-trial, engaged him in multiple discussions of the evidence, and reviewed with him numerous potential defenses.[38] Ms. Woloshin traveled to Maryland to develop defense/mitigation strategies with Dillard's family members and identify potential defense witnesses.[39] Ms. Woloshin also explored whether-as Dillard had expressed and hoped-certain State's witnesses would be uncooperative and unavailable for trial.[40] Lastly, while preparing for a potential trial, Ms. Woloshin negotiated a plea that, while not wholly to Dillard's liking, was, in both her and Dillard's opinions, "his best option."[41] Lastly, Ms. Woloshin thoroughly explained and even charted out Dillard's sentencing exposure.[42]

         (20) Ms. Woloshin only mentioned the possibility of withdrawing as counsel when discussing the allegations Dillard made when he tried to withdraw his plea.[43] No doubt Dillard's complaints might reasonably be seen as requiring exploration with new defense counsel. Far from being some coercive threat, Ms. Woloshin's explanation was consistent with the state of the proceedings and necessary for Dillard to make an intelligent choice to either pursue withdrawal of the favorable plea entered or move forward to sentencing with Ms. Woloshin representing him.

         (21) A criminal defense attorney must provide truthful information and informed legal advice; not just mouth what her client may want to hear. Doing so is required; not objectively unreasonable.[44] It is instead precisely the professional behavior expected of Delaware counsel.[45] And on this basis alone - i.e., failure to show that Ms. Woloshin's performance was in any way deficient - Dillard's claims seeking vacatur of his guilty plea must be denied.[46]

         (22) But Dillard attacks his sentence also. As to his sentence, he first claims that: (a) his counsel gave poor advice on the "law and facts" relating to the application of the Habitual Criminal Act in his situation; (b) the State engaged in "prosecutorial misconduct" when it sought application of the Habitual Criminal Act to him; and (c) the Court abused its discretion in fashioning his sentence under the Habitual Criminal Act. All of these complaints stem from Dillard's misapprehension of which version of the Habitual Criminal Act, old or new, should to be applied to his sentence, and which version actually was applied to his sentence.

         (23) Dillard committed his crimes in November of 2014. He entered his plea in November of 2015. And he was sentence on July 22, 2016.

         (24) Three days prior to Dillard's sentencing, substantive revisions to Delaware's Habitual Criminal Act were enacted.[47] So at Dillard's sentencing the parties and Court discussed the applicability of the then-brand-new habitual criminal sentencing provisions.[48] The parties and Court agreed to the application of the new provisions to the only conviction for which the State sought habitual criminal sentencing: the second degree assault count.[49] This benefitted Dillard by allowing Ms. Woloshin to argue that the Court could sentence him to as little as 21 years because the minimum ...

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