State v. Dillard ( 2019 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
)
v. ) I.D. No. 1411003111
)
) Cr.A.Nos. IN14-11-0961, etc.
KRISHAN D. DILLARD, )
)
Defendant. )
Submitted: October 5, 2018
Decided: January 4, 2019
ORDER DENYING M§ !TIQN FQR POST CONVICT[ON RELIE_F
This 4th day of January, 2019, upon consideration of the Defendant
Krishan D. Dillard’s Motion for Postconviction Relief`` (D.I. 70), Dillard’s
amendment(s) 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:
(l) In January 2015, a grand jury indicted Defendant Krishan D.
Dillard f``or 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 prohibitedl
(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 l7-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
' D.I. 3.
2 The Court uses pseudonyms to refer to the victims here. See DEL. SUPR. CT. R. 7(d)
(a trial court, lower appellate court, or the Supreme Court itself may deem certain matters
to be of a sensitive nature, in which case the court may order the use of pseudonyms sua
sponte). Delaware courts do so routinely when domestic violence and juvenile victims are
involved. See State v. Remea'io, 108 A.3d 326, 328 n.2 (Del. Super. Ct. Dec. 31, 2014).
_2_
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 recommendation7
3 See Indictment, State v. Krishan D. Dillard, I.D. No. 1411003111 (Del. Super. Ct.
Jan. 20, 2015) (D.I. 3). See also Dkt. No. l, State v. Krishan D. Dillard, I.D. No.
1411003111 (Del. Super. Ct. Nov. 20, 2014).
4 See Dkt. No. l, State v. Krishan D. Dillard, I.D. No. 1411003111 (Del. Super. Ct.
Nov. 20, 2014).
5 Plea Agreement and TIS Guilty Plea Form, State v. Krishan D. Dillard, I.D. No.
1411003111 (Del. Super. Ct. Nov. 18, 2015) (D.I. 24).
6 Icl. (State agrees to enter a nolle prosequi as to all charges from Case No.
140801 1976). See also Indictment, State v. Krishan D. Dillard, I.D. No. 140801 1976 (Del.
Super. Ct. Oct. 27, 2014) (charging Dillard with drug dealing and aggravated drug
possession).
7 Plea Agreement, at l (setting forth the charges to be nolle prossed, providing that
the State would seek habitual criminal sentencing for only the felony assault count, and
providing also that “the State will cap its recommendation of unsuspended Level 5 time at
35 years.”). Dillard faced life imprisonment for the attempted murder count alone had the
State sought application of the then-extant provisions of the Habitual Criminal Act to that
count. See DEL. CODE ANN. tit. ll, § 4214(a) (2014) (any person sentenced under then-
existing § 4214(a) had to receive a minimum sentence of not less than the statutory
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(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 ll Del. C.
§ 4214(a); (c) for possession of a deadly weapon during the commission of a
maximum penalty otherwise provided for any fourth or subsequent Title ll violent felony
that formed the basis of the State’s habitual criminal petition); see also DEL. CODE ANN.
tit. ll, § 4214(b) (2014) (providing that a person who had been twice previously convicted
of certain enumerated felonies and was thereafter convicted of another of those enumerated
felonies could be declared a habitual criminal; any person sentenced under then-existing
§ 4214(b) had to receive a natural life sentence for the triggering felony (or felonies) that
formed the basis of the State’s habitual criminal petition).
8 See Dkt. Nos. 36-42, State v. Krishan D. Dillard, I.D. No. 1411003111 (Del. Super.
Ct.).
9 See Dkt. Nos. 48-58, State v. Krishan D. Dillard, I.D. No. 1411003111 (Del. Super.
Ct.).
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 33-year unsuspended portion
of his Level V term.ll
(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 6l.
(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;
10 Mod. Sent. Order, State v. Krishan D. Dillard, I.D. No. 14110031 ll (Del. Super.
Ct. Aug. 26, 2016) (D.I. 62). Dillard’s sentencing order was modified on August 26, 2016,
to reflect an earlier effective date as agreed upon by the parties; all other aspects of Dillard’s
sentence remained unchanged Ia'. at 4.
ll See Def.’s Sent. Modification Mot., State v. Krishan D. Dillard, ID No.
1411003111 (Del. Super. Ct. Sept. 28, 2016) (D.I. 63); Order Denying Def.’s Sent.
Modification Mot., State v. Krishan D. Dillard, ID No. 1411003111 (Del. Super. Ct. Jan.
3, 2017) (D.I. 66).
12 See Aff. of Natalie S. Woloshin, Esquire (D.I. 78).
_5_
(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 Act14 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
(l l) 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
13 Def’ s Mot. for Postconviction Relief (D.I. 70)_; Def’ s Mot. to Amend
Postconviction Motion (D.I. 82 and 83); Def’s Rply. to State’s Resp. (D.I. 87).
14 Def" s Mot. to Amend Postconviction Motion, at l.
15 Def’s Rply. to State’s Resp, at 4.
16 Def" s Mot. to Amend Postconviction Motion, at l; Def’s Rply. to State’s Resp, at
4.
17 Order to Expand Record, State v. Krishan D. Dillard, ID No. 1411003111 (Del.
Super. Ct. June l, 2017) (D.I. 75).
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
18 Order Denying Appointment of Counsel, State v. Krishan D. Dillard, ID No.
1411003111 (Del. Super. Ct. Aug. 8, 2017) (D.I. 77). (Dillard failed to demonstrate “that
his is a substantial IAC claim . . . [n]or has he adequately pled any specific exceptional
circumstances warranting the appointment of counsel”).
19 Strickland v. Washington, 466 U.S. 668, 694 (1984); Alston v. State, 2015 WL
5297709, at *3 (Del. Sept. 4, 2015).
20 Albury v. Szare, 551 A.2d 53, 59 (Del. 1988) (citing Hill v. Lockhan, 474 U.s. 52,
58 (1985)); Sartin v. State, 2014 WL 5392047, at *2 (Del. Oct. 21, 2014); State v. Hackett,
2005 WL 3060976, at *3 (Del. Super. Ct. Nov. 15, 2005).
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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 6125 to which there are no procedural bars.26
21 Brawley v. State, 1992 WL 353838, at *l (Del. Oct. 7, 1992); State v. Torres, 2015
WL 5969686, at * ll (Del. Super. Ct. Oct. 2, 2015).
22 See Wn'gh¢ v. sm¢e, 671 A.2d 1353, 1356(D61. 1996).
23 Als¢on, 2015 WL 5297709, 61*3 (citing anhr, 671 A.2d ar 1356).
24 Srrickland, 466 U.s. at 697; Ploof v. Srare, 75 A.3d 811, 825 (Del. 2013)
(“Strickland is a two-pronged test, and there is no need to examine whether an attorney
performed deficiently if the deficiency did not prejudice the defendant.”).
25 Jackson v. State, 654 A.2d 829, 832-33 (Del. 1995) (period for filing motion for
postconviction relief begins to run when direct appeal process is complete; for one who
does not take a direct appeal, his conviction becomes “final” when his time for taking a
direct appeal has expired.).
26 The Court notes here that Dillard’s allegations of “prosecutorial misconduct” and
“abuse of sentencing discretion” are not, as he pleads them, stand-alone claims. If they
were, those claims would likely be subject to Rule 6l ’s procedural bars. See, e.g., SUPER.
CT. CRIM. R. 6l(i)(3) (procedural default bar). But those averments are so intertwined with
_8_
(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
Dillard’s ineffective assistance complaints that they are best addressed via the prejudice
analysis thereunder.
27 Plea Colloquy Tr., State v. Dillard, ID No. 1411003111 (Del. Super. Ct. Nov. 18,
2015), at 4-9. (D.I. 43).
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 l 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
Mr. 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
23 Id. 319-22.
29 Ia’. at 22.
3° Id. at 22. Upon even further inquiry, Dillard confirmed that he was “fully satisfied”
with the representation Ms. Woloshin had provided. Ia'.
31 D.I. 36. Because Dillard’s allegations included complaints that Ms. Woloshin
provided him ineffective assistance, she filed an obligatory motion to withdraw as counsel.
D.I. 39. Given the very favorable terms of the plea entered and the compelling record of
Ms. Woloshin’s adequate representation, action on both requests was withheld until Dillard
had the opportunity to consult with separate counsel on his options and the consequences
of plea withdrawal. D.I. 40; Status Conf. Tr., State v. Dillard, ID No. 1411003111 (Del.
Super. Ct. Feb. 12, 2016) (D.I. 42).
32 See D.I. 49-52.
33 D.I. 53.
_10_
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 1 would like to say, I appreciate the opportunity to reevaluate
in this situation. And l 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
34 Hearing Tr., State v. Dillard, ID No. 1411003111 (Del. Super. Ct. June 9, 2016), at
9-11. (D.I. 89)
35 Ia'. at 14-15.
36 See Somervz'lle v. State, 703 A.2d 629, 632 (Del. 1997); sz``th v. Stale, 1996 WL
21050(D61. Jan. 5, 1996).
37 Def. Counsel’s Aff., at 2.
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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.”4l 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
38 Id_
39 Id_
40 Id_
41 Ia', at 3.
42 Ia'. at 2; ia'. Ex. A, at 1.
43 Def. Counsel’s Aff., at 3.
_12_
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 lt 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
44 See Bulmm v. srare, 897 A.zd 758, 763 (Del. 2006) (“While a defendant has a right
to counsel, he does not have a right to counsel who will not disagree with him about how
best to proceed with his case.”).
45 State v. Colburn, 2016 WL 3248222, at *3-4 (Del. Super. Ct. June 1, 2016), ajj‘"’a',
2016 WL 5845778 (Del. Oct. 5, 2016) (Court could not find counsel’s actions unreasonable
when she correctly explained legal landscape to client and followed her ethical obligations
under both the plea entered and applicable law).
46 Stricklana’ v. Washinglon, 466 U.S. 668, 687 (1984) (“This requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”); State v. McGlotten, 2011 WL
987534, at *4 (Del. Super. Ct. Mar. 21, 201 1) (“To restate the requirements of Stricklana’, a
defendant must establish two things, not just one: that trial counsel's performance was
deficient and that but for that deficiency, the outcome of the proceedings would have been
different. If a defendant cannot establish both prongs, then the ineffective assistance of
counsel claim fails.”) (emphasis in original).
_13_
(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
47 80 DEL. LAWS Ch. 321 (eff. July 19, 2016).
48 Sentencing Hrg. Tr., State v. Dillard, ID No. 1411003111 (Del. Super. Ct. July 22,
2016),613-6. (D.I. 85)
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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 sentence applicable
to the felony assault conviction would be four instead of eight years.50 Dillard
is simply mistaken that benefit was one due him by law.
(25) The sentencing provisions in effect at the time that a criminal act
is committed are those applied when imposing a sentence for that act.51 And
Delaware courts need apply intervening ameliorative changes to sentencing
statutes only when the General Assembly expressly provides for their
49 Id
50 Compare DEL. CODE ANN. tit. 11, § 4214(a) (2014) (any person sentenced under
then-existing § 4214(a) had to receive a minimum sentence of not less than the statutory
maximum penalty otherwise provided for any fourth or subsequent Title 11 violent felony
that formed the basis of the State’s habitual criminal petition); with DEL. CODE ANN. tit.
11, § 4214(b) (2016) (providing under revised habitual criminal sentencing provisions one
who had been thrice previously convicted of felonies and is thereafter convicted of a Title
11 violent felony must receive a minimum sentence of not less than one-half the statutory
maximum penalty otherwise provided for the triggering Title 11 violent felony that forms
the basis of the State’s habitual criminal petition). DEL. CODE ANN. tit. 11, §§ 612(d),
4201(c) and 4205(b)(4) (2014) (assault second degree was then, and is now, a class D
violent felony with a statutory maximum of eight years imprisonment).
51 See Distefano v. Watson, 566 A.2d l, 5 (Del. 1989) (observing that “[a] law violates
the ex post facto prohibition, when it “changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when committed”).
_15_
retroactive application.52 Indeed then, Ms. Woloshin succeeded in having the
State agree to and the Court consider sentencing parameters more favorable
than the law required. Unfortunately for Dillard, the Court didn’t find his
felony assault to be one for which a minimum term should be imposed.53
There is simply no evidence in the record that inadequate counsel,
prosecutorial misconduct, or an abuse of discretion led to the imposition of
eight years imprisonment for Dillard’s knife attack on M.S., a “young woman
who was doing nothing more [than] trying to save her sister’s life.”54
(26) Dillard claims other deficiencies by counsel_namely, failing to
review his pre-sentence investigative report with him and correct errors he
believed were contained therein_caused the cumulative 33-year
52 See Fountain v. State, 139 A.3d 837, 842-43 (Del. 2016) (Statutory revisions
allowing for concurrent sentences in some circumstances do not apply to defendants whose
crimes occurred before those changes because General Assembly did not expressly provide
for their retroactive application.); State v. Ismaaeel, 840 A.2d 644, 655 (Del. Super. Ct.
2004) (Noting when declining to apply statutory changes favorable to the defendant that
were enacted while his prosecution was pending: “Just as the State will not surprise a
defendant with greater punishment in an ex post facto fashion, neither should a defendant
feign surprise about the penalties that accompanied his conduct at the time of offense.”),
a]j”d, 2004 WL 1587040 (Del. July 9, 2004) (affirming “on the basis of and for the reasons
set forth in [that] well-reasoned decision” of this Court). See also Wicks v. State, 559 A.2d
1194, 1196 (Del. 1989) (ln the face of silence on the issue, there is no reason to believe the
General Assembly would intend punishment to depend upon fortuitous circumstance of
when a defendant was convicted and sentenced.).
53 Sentencing Hrg. Tr., at 34-35 (Court sets forth the specific aggravating factors it
relies upon when exercising its discretion to sentence Dillard to eight years for the second
degree assault).
54 Id
_16_
unsuspended imprisonment term of his sentence, But here again, the record
supports neither a finding of deficient performance by counsel nor a finding
that had Ms. Woloshin performed differently “there is a reasonable probability
that . . . the result of [Dillard’s] sentencing would have been different.”55
(27) Ms. Woloshin’s preparation for and advocacy at Dillard’s
sentencing were far from ineffective. First, Ms. Woloshin engaged a
mitigation specialist who accompanied her to interview potential mitigation
witnesses, gathered records and documentation, and prepared a mitigation
report for Mr. Dillard’s plea negotiations and sentencing.56 This mitigation
report was provided to and reviewed by the Court.57 Second, when she
recognized that Dillard’s initial interview with the presentence officer did not
reflect well on her client, Ms. Woloshin sought delay of the sentencing and
arranged for a second meeting at which she assisted Dillard.58 Third, before
his sentencing hearing, Ms. Woloshin reviewed with Dillard the Court’ s initial
55 Brawley v. State, 1992 WL 353838, at *1 (Del. Oct. 7, 1992); State v. Torres, 2015
WL 5969686, at * ll (Del. Super. Ct. Oct. 2, 2015).
55 Def. Counsel’s Aff., at 2.
57 Sentencing Hrg. Tr., at 20.
58 Def. Counsel’s Aff., at 3; Hearing Tr. (June 9, 2016), at 4-6 (Ms. Woloshin
requesting and obtaining Court permission for a second presentence interview); Sentencing
Hrg. Tr., at 26 (noting Ms. Woloshin attended Dillard’s presentence interview).
_17_
and final presentence reports, the defense’s own mitigation report and the
State’s sentencing memorandum.59 Fourth, Ms. Woloshin specifically
addressed those areas of disagreement she found with the Court’s report and
the State’s advocacy of aggravators.60 Fifth, it is clear from sentencing
transcript that Ms. Woloshin had prepared Dillard for sentencing; including
preparation for his allocution.61 Lastly, Ms. Woloshin gave her own lengthy
and impassioned sentencing presentation on Dillard’s behalf seeking a
sentence of the minimum required.62 There is no doubt that Ms. Woloshin
more than fulfilled the advisory and advocacy obligations expected of
sentencing counsel.63 Dillard fails to identify any concrete missteps by
counsel or any additional steps necessary;64 therefore, he has failed to plead
59 Def. Counsel’s Aff., at 3; Hearing Tr. (June 9, 2016), at 4-5 (Ms. Woloshin noting
she had reviewed initial presentence report with Dillard while his motion to withdraw his
guilty plea was pending). E.g., Sentencing Hrg. Tr., at 29 (Dillard referring to his
employment history from presentence report).
60 E.g., Sentencing Hrg. Tr., at 25-26.
61 E.g,, Sentencing Hrg. Tr., at 27-33 (Dillard’s allocution).
62 Sentencing Hrg. Tr., at 20-27.
63 Cf. Harden v. Srare, 180 A.3d 1037 (Del 2018).
44 see Alsren v. Sre¢e, 2015 WL 5297709, et *3 (Del. sept. 4, 2015) (queting
Stricklana' v. Washington, 466 U.S. 668, 694 (1984)) (stating that for ineffective assistance
of counsel claims, defendant must demonstrate “but for counsel’s errors, the result of the
proceeding would have been different”).
_18_
prejudice with any particularity.65 In fact, Dillard has made no real effort to
demonstrate, there is a reasonable probability that the result of his sentencing
would have been different.66 His ineffective assistance at sentencing claim
must be rejected.
(28) Dillard’s last claim is that Ms. Woloshin failed to file a direct
appeal raising the sentencing issues addressed and rejected above.67 Dillard
never requested that Ms. Woloshin file an appeal on his behalf and Ms.
Woloshin was unable to identify any potential issues for direct appeal.68
(29) As the Delaware Supreme Court has observed, “counsel is
constitutionally required to ‘consult with the defendant about an appeal when
there is reason to think either (1) that a rational defendant would want to
appeal (for example, because there are nonfrivilous grounds for appeal), or
65 See Monroe v. State, 2015 WL 1407856, at *5 (Del. Mar. 25, 2015) (citing Dawson
v. State, 673 A.2d 1186, 1196 (Del. 1996)) (stating “failure to state with particularity the
nature of the prejudice experienced is fatal to a claim of ineffective assistance of counsel”).
66 Brawley v. State, 1992 WL 353838, at *1 (Del. Oct. 7, 1992); State v. Torres, 2015
WL 5969686, at *11 (Del. Super. Ct. Oct. 2, 2015).
67 Def s Mot. to Amend Postconviction Motion, at 1; Def’s Rply. to State’s Resp, at
4.
68 Supp. Aff. of Natalie S. Woloshin, Esquire (D.I. 78).
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(2) that this particular defendant reasonably demonstrated to counsel that he
was interested in appealing.”’69 Here there is reason to think neither.
(3 0) “[T]he difficulty of succeeding” on an ineffectiveness claim for
failure to file an appeal is well-recognized where “the defendant pled guilty
to the charges, as ‘a guilty plea reduces the scope of potentially appealable
issues and . . . a [guilty] plea may indicate that the defendant seeks an end to
judicial proceedings.”’7° And when, as here, the only appellate claims that a
defendant posits are those related to his sentence after a guilty plea, the bar is
even higher because of the very limited appellate review of sentences. In
Delaware, “[a]ppellate review of a sentence is limited to whether the sentence
is within the statutory limits prescribed by the General Assembly and whether
it is based on factual predicates which are false, impermissible, or lack
minimal reliability, judicial vindictiveness or bias, or a closed mind.”71 The
record demonstrates that the Court considered all relevant evidence, including
Dillard’s mitigating evidence, when it crafted its sentence, And Dillard puts
forth only conclusory allegations of “false victims [sic] report” and
69 Burkett v. State, 2007 WL 2123778, at *2 (Del. July 25, 2007) (quoting Roe v.
Flores-Ortega, 528 U.S. 470, 480 (2000)).
70 Id
71 Weslon v. State, 832 A.2d 742, 746 (Del. 2003) (citing Siple v. State, 701 A.2d 79,
83 (Del. 1997); Mayes V. Slal‘€, 604 A.2d 839, 842-43 (Del. 1992)).
_2()_
“prosecutorial misconduct” that are unsupported by that record.72 Thus, Ms.
Woloshin can hardly be seen to have acted in an objectively unreasonable way
when she neither recommended nor filed a notice of appeal of Dillard’s
sentence,
(31) Dillard also fails to demonstrate that a direct appeal would have
yielded a result different than the unsuccessful motion for reduction of
sentence that he pursued.73 And so the Court can also find no prejudice from
Ms. Woloshin’s failure to file a direct appea1.74
(32) Krishan D. Dillard has failed in meeting his burden of
demonstrating: that Ms. Woloshin’s representation fell below an objective
standard of reasonableness; that, but for her alleged errors, he would not have
pleaded guilty and instead proceeded to trial; that, but for her alleged errors,
he would have received a more favorable sentence; or, that, but for her alleged
72 Defs Mot. to Amend Postconviction Motion, at 1; Def" s Rply. to State’s Resp, at
73 See n.l 1, supra
74 Pinkszen v. stare 2014 WL 1657769, ar *4(De1. Apr. 22, 2014).
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errors, he would have successfully attacked his sentence on appeal.
Accordingly, Dillard’s Motion for Postconviction Relief must be DENIED.
SO ORDERED this 4th day of January, 2019.
@¢DMD
Paul R. Wallace, Judge
Original to Prothonotary
cc: Renee L. Hrivnak, Deputy Attorney General
Natalie S. Woloshin, Esquire
Patrick J. Collins, Esquire
Mr. Kirshan L. Dillard, pro se
Investigative Services Office
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