State v. Dillard

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: August 22, 2024
Decided: October 29, 2024
Upon Defendant Krishan D. Dillard’s
Motions for Correction of Sentence and for Sentence Reduction,
DENIED.
ORDER
This 29th day of October, 2024, upon consideration of the Defendant
Krishan D. Dillard’s Motion for Correction of an Illegal Sentence (D.I. 95),
Motion for Sentence Reduction (D.I. 96), the State’s responses to those
motions (D.I. 97 and 99), and the record in this matter, it appears to the Court
that:
FACTUAL AND PROCEDURAL BACKGROUND1
(1) In January 2015, a grand jury indicted Defendant Krishan D.
1
The relevant factual and procedural background of Mr. Dillard’s crimes and
prosecution have been recounted in two of this Court’s prior decisions and is taken almost
verbatim therefrom without repetition of all of their internal citations. See D.I. 66 (order
denying Mr. Dillard’s first motion to reduce sentence); State v. Dillard, 2019 WL 118437,
at *1-2 (Del. Super. Ct. Jan. 4, 2019) (order denying postconviction relief).
Dillard for attempted murder first degree, first-degree assault, two counts of
home invasion, two counts of second-degree burglary, three counts of felony
reckless endangering, endangering the welfare of a child, nine related counts
of possession of a deadly weapon during the commission of a felony
(PDWDCF), and possession of a deadly weapon by a person prohibited.
(2) These multiple offenses arose from an attack that occurred on
November 6, 2014. Early that morning, Mr. Dillard illegally entered an “on-
again, off-again” girlfriend J.B-J.’s apartment. He carried with him a box of
blue latex medical gloves. He donned a pair and armed himself with a kitchen
knife. Mr. Dillard then went to J.B-J.’s bedroom and attacked her while she
slept. J.B-J. woke to see Mr. Dillard on top of her. Mr. 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 Mr. Dillard. Mr. Dillard continued stabbing and
slashing. M.S. went to her sister’s aid and Mr. Dillard turned his attention to
her. After stabbing and slashing M.S., Mr. Dillard tucked the knife in his
pocket and fled the apartment. As a result of Mr. 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
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suturing.
(3) Both J.B-J. and M.S. positively identified Mr. Dillard as their
attacker. He was arrested six days later in Maryland.
(4) At final case review, Mr. Dillard pleaded guilty to attempted
first-degree murder, second-degree assault, felony reckless endangering, and
PDWDCF. He did so in exchange for dismissal of the remaining charges in
this indictment, dismissal of the charges from a second unrelated indictment,
and the State’s favorable sentencing recommendation.
(5) Mr. Dillard’s sentencing occurred several months later on
July 22, 2016, after a pre-sentence investigative report was prepared. He was
sentenced: (a) for attempted murder—to 25 years at Level V, suspended after
he serves 20 years imprisonment, for decreasing levels of supervision and
certain treatment conditions; (b) for assault second degree—to eight years at
Level V (to which 11 Del. C. § 4214 was applied); (c) for PDWDCF—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.2
(6) Mr. Dillard’s 33-year period of unsuspended imprisonment is
comprised, in part, of three separate minimum terms of incarceration that must
2
D.I. 62 (modified sentencing order issued to reflect the earlier effective date agreed
upon by the parties).
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be imposed under a combination of Delaware’s attempted first-degree murder,
second-degree assault (with a habitual-criminal enhancement), and PDWDCF
statutes; those three separate minimum terms as applied in the peculiar
circumstances of Mr. Dillard’s case, total 21 years.3 The remaining 12 years
the Court imposed as an exercise of its own sentencing judgment.
(7) Mr. Dillard filed no direct appeal from his conviction or
sentence. But he earlier docketed a pro se motion under Superior Court
Criminal Rule 35(b) requesting reduction of his prison term.4 That application
was considered on its merits and denied.5
MR. DILLARD’S RULE 35(a) MOTION (D.I. 95)
(8) In Mr. Dillard’s view, his sentence is “illegal” and in need of
correction because the Court should have sentenced him to a minimum term
of four years of imprisonment for the second-degree assault conviction that
3
See DEL. CODE ANN. tit. 11, §§ 636, 531, and 4205(b)(1) (2014) (attempted first-degree
murder is a class A felony carrying a statutory minimum of 15 years at Level V); id. at
§§ 1447 and 4205(b)(2) (PDWDCF is a class B felony carrying a statutory minimum of
2 years at Level V); id. at §§ 612(d), 4201(c) and 4205(b)(4) (assault second degree is a
class D violent felony with a statutory maximum of eight years imprisonment); see also
DEL. CODE ANN. tit. 11, § 4214(b) (2016) (providing under the then-recently-revised
habitual-criminal sentencing provisions that 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 of the statutory maximum penalty otherwise provided
for the triggering Title 11 violent felony that forms the basis of the State’s habitual criminal
petition). The State had sought, and the Court applied, a §4214 enhancement only to the
second-degree assault count.
4
D.I. 63.
5
D.I. 66.
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was enhanced by application of the then-very-recently amended version of the
Habitual Criminal Act that was in effect on the date of his sentencing rather
than the prior version in effect at the time of his crimes and plea.
(9) Criminal Rule 35(a) permits this Court to correct an illegal
sentence “at any time.”6 Relief under Rule 35(a) is available when, inter alia,
the sentence imposed: exceeds the statutorily-authorized limits; omits a term
required to be imposed by statute; is uncertain as to its substance, or is a
sentence that the judgment of conviction did not authorize.7 “Relief may be
warranted under Rule 35(a) to correct a court’s possible misimposition of non-
suspended imprisonment as a minimum-mandatory term in a sentence.”8
(10) Mr. Dillard is somewhat misguided on both the law and the facts
he argues in his Rule 35(a) motion. His complaint stems from his
misapprehension of which version of the Habitual Criminal Act—old or
new—should be applied to his sentence and which version actually was
applied to his sentence.9
6
Super. Ct. Crim. R. 35(a) (“Correction of sentence. -- The court may correct an illegal
sentence at any time . . .”).
7
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
8
State v. Palmer, 2022 WL 16641898, at *7 (Del. Super. Ct. Sept. 27, 2022) (citing
Jones v. State, 2021 WL 4098967, at *2 (Del. Sept. 8, 2021) (noting that relief in the form
of resentencing may be warranted to correct a court’s misimposition of nonsuspended
imprisonment as a minimum-mandatory term to a sentence when that minimum term did
not in fact apply)).
9
See, e.g. D.I. 63 (“I [am] asking if my sentence[] could be reduced to the 25 years
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(11) Mr. Dillard committed his crimes in November of 2014.
He entered his plea in November of 2015. And he was sentenced on July 22,
2016.
(12) Three days prior to Mr. Dillard’s sentencing, substantive
revisions to Delaware’s Habitual Criminal Act were enacted.10 So, at
Mr. Dillard’s sentencing the parties and Court discussed the applicability of
the then-brand-new habitual-criminal sentencing provisions.11 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.12 This benefitted Mr. Dillard by allowing his
attorney 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. Mr. Dillard is simply mistaken that
benefit was one due to him by law.
(13) The sentencing provisions in effect at the time that a criminal act
is committed are those applied when imposing a sentence for that act.
which is the minimum of this case.”); D.I. 95 (demonstrating that he believes the Court
imposed 25 of the 33-year term of imprisonment as a minimum mandatory.”).
10
80 DEL. LAWS Ch. 321 (eff. July 19, 2016).
11
Sentencing Hrg. Tr. 3-6. (D.I. 85).
12
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Delaware courts need apply intervening ameliorative changes to sentencing
statutes only when the General Assembly expressly provides for their
retroactive application.13 Our Supreme Court has now expressly applied this
principle when speaking to the 2016 changes to the Habitual Criminal Act.14
(14) So, while not required by (or even an error of) law, this Court has
since explained why such applications occurred at the nascent point when the
parties and Court were reckoning with the handful of cases effected by what
was, and remains, a truly unique statutory revision:15
[S]uch agreements were permitted for just that small universe of
habitual criminal cases pending disposition when the 2016
revisions to Delaware’s Habitual Criminal Act were first
enacted. They were permitted for two reasons: (1) for the
defendant, the potential resulting sentence was always either the
same or better than the law in effect when the then-pending case
started; and (2) application of the old law might foster needless
review under new § 4214(f)—relief under which was application
of the new habitual criminal provisions.16
13
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. Thomas, 220 A.3d 257, 263-64 (Del. Super. Ct.
2019) (same).
14
Garrett v. State¸2022 WL 1639226, at *2 (Del. May 23, 2022) (citing Wright v. State,
2022 WL 499979, *3 & n.14 (Del. Feb. 17, 2022) (the version of the habitual-offender
statute that applies is the one in effect at the time that the defendant committed the offense
for which he is being sentenced).
15
See State v. Heath, 2022 WL 16557804, at *2 (Del. Super. Ct. Oct. 31, 2022) (explaining
the singular nature of the sentence review provisions of the revised Habitual Criminal Act).
16
State v. Daniels, 2022 WL 2733509, at *1 n.9 (Del. Super. Ct. July 13, 2022), aff’d,
2023 WL 176964 (Del. Jan. 12, 2023) (citing Mr. Dillard’s case as an example).
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(15) The Court made it clear that it was sentencing Mr. Dillard with
the lesser habitual-enhancement in mind as the potential minimum in his
case.17 Unfortunately for Mr. Dillard, the Court didn’t find his felony assault
to be one for which a minimum term should be imposed.18 Rather, the Court
found that even if Mr. Dillard’s status as a statutory habitual criminal wasn’t
factored in at all, 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”—was appropriate.19
(16) Mr. Daniels is not serving an illegal sentence. So, he is due no
relief under this Court’s Criminal Rule 35(a) and that motion is DENIED.20
MR. DILLARD’S RULE 35(b) MOTION (D.I. 96)21
(17) Mr. Dillard also docketed a simultaneous motion under Superior
Court Criminal Rule 35(b)22 requesting reduction of his prison term either
17
Sentencing Hrg. Tr. 6, 34-35.
18
Id. at 34-35.
19
Id.
20
All that said, the Court recognizes that clarification in Mr. Dillard’s sentencing order
to denote the specific version and provision of the Habitual Criminal Act that was applied
to Mr. Dillard’s second-degree assault conviction is appropriate. The Court will issue a
modified sentencing order herewith.
21
Mr. Dillard used the same cover page and title for his two distinct motions that were
filed in a single package. See D.I. 98 (explaining Mr. Dillard’s filings).
22
Super. Ct. Crim. R. 35(b) (providing that, under certain conditions, the Court may
reduce a sentence of imprisonment on an inmate’s motion); Jones v. State, 2003 WL
21210348, at *1 (Del. May 22, 2003) (“There is no separate procedure, other than that
which is provided under Superior Court Criminal Rule 35, to reduce or modify a
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now or once he demonstrates rehabilitation.23
(18) When considering motions for sentence reduction, “this Court
addresses any applicable procedural bars before turning to the merits.”24
Mr. Dillard previously filed a Rule 35(b) motion requesting reduction of the
33-year unsuspended portion of his Level V term or “[i]f [his] sentence[] can’t
be modified or reduced can [he] be put under review after a sum of [his]
time.”25 That first and timely motion was considered on its merits and
denied.26
(19) He has now docketed another application asking for the same
relief.
(20) When considering such motions, this Court addresses any
applicable procedural bars before turning to the merits.27
(21) Mr. Dillard attempts to address Rule 35(b)’s time bar. But he
says nothing of the fact that this is his second request for the same sentence-
reduction relief. The Court must.28
sentence.”).
23
Rule 35(b) Motion 1-2.
24
State v. Redden, 111 A.3d 602, 6Lveel 06 (Del. Super. Ct. 2015).
25
D.I. 63.
26
D.I. 66.
27
State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015).
28
See State v. Reed, 2014 WL 7148921, at *2 (Del. Super. Ct. Dec. 16, 2014); State v.
Culp, 152 A.3d 141, 145-47 (Del. 2016) (instructing that this Court cannot ignore the Rule
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(22) As our Supreme Court and this Court have consistently held,
Rule 35(b) prohibits consideration of repetitive requests for sentence
reduction or modification.29 There is no exception to the repetitive-motion
bar.30 “And a motion is repetitive under Rule 35(b) whenever it is preceded
by an earlier Rule 35(b) motion, even if the subsequent motion raises new
arguments or suggests somewhat different relief.”31
(23) Accordingly, the Court must DENY Mr. Dillard’s second
Rule 35(b) application for sentence reduction because it is repetitive and again
seeks a form of relief not available under that rule or applicable Delaware
law.32
SO ORDERED this 29th day of October, 2024.
/s/ Paul R. Wallace
Paul R. Wallace, Judge
Original to Prothonotary
35’s plain language, its procedural bars and requirements, or established precedent
interpreting the rule).
29
Culp, 152 A.3d at 145; Redden, 111 A.3d at 608–09.
30
Culp, 152 A.3d at 144; Redden, 111 A.3d 608–09.
31
State v. Wenzke, 2023 WL 3676894, at *4 (Del Super. Ct. May 25, 2023) (cleaned up)
(citing Culp, 152 A.3d at 144).
32
As the Court explained recently in a similar case, the only avenue for the relief
Mr. Dillard seeks—reduction of his prison term—on the grounds he raises— rehabilitative
efforts—is an application brought at the proper time and with the proper support by the
Department of Correction under 11 Del. C. § 4217 or via some form of executive clemency.
See State v. Chambers, 2024 WL 3792416, *3 n.22 (Del. Super. Ct. Aug. 13, 2024).
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cc: Mr. Krishan D. Dillard, pro se
Anna M. Hadlock, Deputy Attorney General
Renee L. Hrivnak, Deputy Attorney General
Cari A. Chapman, Deputy Attorney General
Investigative Services Office
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