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. 
2

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. 
3

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.
4

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.
5

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.
6

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 
7

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 selfincrimination 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). 
8

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).
9

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).
10

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.
11

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).