IN THE SUPREME COURT OF THE STATE OF DELAWARE 

THOMAS F. KANE, 

Defendant Below, 

Appellant, 

v. 

STATE OF DELAWARE, 

Plaintiff Below, 

Appellee. 

§ 

§ 

§ No. 103, 2020 

§ 

§ Court Below—Superior Court 

§ of the State of Delaware 

§ 

§ Cr. ID No. 0612001862 (K) 

§ 

§ 

§ 

 Submitted: March 23, 2020 

 Decided: May 18, 2020 

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices. 

ORDER

 Upon consideration of the appellant’s opening brief, the appellee’s motion to 

affirm, and the record below, it appears to the Court that: 

(1) The appellant, Thomas F. Kane, has appealed the Superior Court’s 

summary dismissal of his third motion for postconviction relief. The State of 

Delaware has moved to affirm the Superior Court’s judgment on the ground that it is 

manifest on the face of Kane’s opening brief that the appeal is without merit. We 

agree and affirm. 

(2) The record reflects that Kane was arrested in December 2006 and 

charged with capital murder in the stabbing death of his wife. In February 2008, 

Kane pled guilty but mentally ill to first-degree murder, first-degree burglary, 
2

endangering the welfare of a child, and criminal contempt of a protection from abuse 

order. In exchange for his plea, the State dismissed ten other criminal charges, 

including murder and weapon offenses, and agreed to recommend a life sentence 

instead of seeking the death penalty. The Superior Court immediately sentenced 

Kane to life imprisonment plus twenty-seven years. Kane did not file a direct appeal. 

(3) In 2012, Kane filed an untimely motion for postconviction relief under 

Superior Court Criminal Rule 61. After a Superior Court Commissioner issued a 

report recommending denial of the motion, Kane sought review of the 

Commissioner’s order and a motion for appointment of counsel. The Superior Court 

appointed counsel, but subsequently granted counsel’s motion to withdraw. Kane 

filed a motion to amend his petition to include additional claims. The Superior Court 

granted the motion, but later determined that the motion was improvidently granted 

in light of the Commissioner’s report. The Superior Court treated the new claims as 

a second motion for postconviction relief. The Superior Court denied both motions 

in an order dated July 23, 2015. This Court affirmed the Superior Court’s decision.1

(4) On January 16, 2020, Kane filed his third motion for postconviction 

relief. Relying on this Court’s decision in Taylor v. State,

2

 Kane argued that the 

Superior Court failed comply with 11 Del. C. § 408(a) and failed to explore his 

 

1 Kane v. State, 2016 WL 1165949 (Del. Mar. 17, 2016). 

2

 213 A.3d 560 (Del. 2019). 
3

conflicts with counsel. The Superior Court summarily dismissed Kane’s motion, 

finding that it was procedurally barred by Rule 61(d)(2) and 61(i)(1). This appeal 

followed. 

(5) This Court reviews the Superior Court’s denial of postconviction relief 

for abuse of discretion and questions of law de novo.

3

 The Court must consider the 

procedural requirements of Rule 61 before addressing any substantive issues.4

 On 

appeal, Kane argues that he is entitled to relief because: (i) he raised the Superior 

Court’s failure to comply with § 408(a) in his first motion for postconviction relief, 

but the Superior Court failed to address it; and (ii) he satisfied the pleading 

requirements of Rule 61(d)(2) and 61(i)(5). These claims are without merit. 

(6) At the time of Kane’s guilty plea, the relevant portion of § 408(a) stated 

that: 

Where a defendant’s defense is based upon allegations which, if true, 

would be grounds for a verdict of “guilty, but mentally ill” or the 

defendant desires to enter a plea to that effect, no finding of “guilty, but 

mentally ill” shall be rendered until the trier of fact has examined all 

appropriate reports (including the presentence investigation); has held 

a hearing on the sole issue of the defendant’s mental illness, at which 

either party may present evidence; and is satisfied that the defendant 

was in fact mentally ill at the time of the offense to which the plea is 

entered.5

 

 

3 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996). 

4 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 

5

 11 Del. C. § 408(a) (2001). This language is substantially similar to the language of the statute 

that the Court considered in Taylor. 
4

In his first motion for postconviction relief, Kane argued, among other things, that 

his counsel and the Superior Court failed to examine all appropriate reports as 

required by § 408(a). The Superior Court construed this as an ineffective assistance 

of counsel claim and found that Kane failed to show that his counsel was deficient 

or that he was prejudiced. Kane did not raise this claim on appeal from the Superior 

Court’s denial of his first motion for postconviction relief and therefore waived 

consideration of that claim.6

 At this time, he cannot raise another untimely claim 

challenging the Superior Court’s compliance with § 408(a) unless he satisfies an 

exception to the Rule 61 procedural bars. 

(7) Kane, contrary to his contentions, has not satisfied the Rule 61(d)(2) or 

Rule 61(i)(5) exceptions to the Rule 61 procedural bars. Under Rule 61(d)(2), a 

second or subsequent postconviction is subject to summary dismissal, unless the 

movant was convicted after trial and: 

(i) pleads with particularity that new evidence exists that creates a 

strong inference that the movant is actually innocent in fact of the acts 

underlying the charges of which he was convicted; or 

(ii) pleads with particularity a claim that a new rule of constitutional 

law, made retroactive to cases on collateral review by the United States 

Supreme Court or the Delaware Supreme Court, applies to the movant’s 

case and renders the conviction or death sentence invalid.7

 

6 Kane, 2016 WL 1165949, at *2 n.9 (“To the extent Kane raised additional claims in the Superior 

Court proceedings, his failure to include those claims in his opening brief constitutes a waiver on 

appeal.”). 

7

 Super. Ct. Crim. R. 61(d)(2). 
5

Kane cannot invoke Rule 61(d)(2) because he was not convicted after trial and 

this is his third motion for postconviction relief.8

(8) Under Rule 61(i)(5), the procedural bars of Rule 61(i)(1)-(i)(4) do not 

apply to a claim that the Superior Court lacked jurisdiction or that satisfies Rule 

61(d)(2)(i) or (d)(2)(ii). Kane has not tried to assert an actual innocence claim under 

Rule 61(d)(2)(i), but instead relies on Taylor to argue that the Superior Court lacked 

jurisdiction or that a new rule of constitutional law applies retroactively to his 

conviction and renders it invalid. He is mistaken. 

(9) In Taylor, the Superior Court, with the agreement of the parties, 

conducted the plea colloquy with the defendant, but deferred accepting the 

defendant’s guilty but mentally ill plea until sentencing when the Superior Court 

would have the presentencing report.9

 One day after the plea colloquy the defendant 

began asking his counsel to withdraw the plea.10 After his counsel refused to do so, 

the defendant filed a pro se motion to withdraw his guilty plea.11 Relying on 

Superior Court Criminal Rule 47, which prohibits the acceptance of pro se filings 

while a defendant is represented by counsel, the Superior Court refused to consider 

 

8 See id. See also Windsor v. State, 2019 WL 327964, at *2 (Del. Jan. 23, 2019) (“Because Windsor 

was not convicted after trial, but instead pleaded guilty to one charge and no contest to another, he 

cannot proceed under the exceptions to repetitive motions in Rule 61(d)(2) that he seeks to 

invoke.”). 

9 Taylor, 213 A.3d at 564. 

10 Id. 11 Id.
6

the motion.12 At the sentencing hearing, the defendant again asked to withdraw his 

guilty but mentally ill plea.13 After confirming that the defendant’s counsel was not 

moving to withdraw the plea, the Superior Court accepted the guilty but mentally ill 

plea and sentenced the defendant to 45 years in prison.14 

(10) On appeal, the defendant argued that the Superior Court failed to follow 

the “sole issue” requirement by accepting the plea and sentencing him during the 

same hearing and did not consider “all appropriate reports” as required by § 408(a).15 

He also argued that his counsel violated his Sixth Amendment rights when they 

refused to withdraw his plea and that the Superior Court should have honored his 

pro se request to withdraw his plea. 16 As to the § 408(a) claims, this Court held that 

there was no plain error because counsel agreed that the Superior Court could 

conduct an initial hearing and defer acceptance of the plea to the sentencing 

hearing.17 We concluded that the defendant had the hearing contemplated by 

§ 408(a), the court reviewed available reports, and the defendant did not cooperate 

with the presentence investigation.18 As to the defendant’s other claims, we held 

that his counsel violated his Sixth Amendment rights by refusing to withdraw his 

 

12 Id. at 565. 

13 Id. 

14 Id. at 566. 

15 Id. at 563. 

16 Id. 17 Id. at 567. 

18 Id. 
7

plea before the Superior Court accepted it.19 We also found that the Superior Court 

should have permitted defendant to withdraw his plea at the second hearing because 

the Superior Court had not yet accepted the plea.20 

(11) Unlike the defendant in Taylor, Kane did not file an appeal. He did not 

challenge the Superior Court’s compliance with § 408(a) until more than four years 

after his guilty but mentally plea and sentencing. There was no presentence report 

at the time the Superior Court accepted Kane’s plea and sentenced him,21 but the 

parties had requested immediate sentencing and did not object to the lack of 

presentence report. Nor did they object to how the Superior Court held the plea and 

sentencing hearing. Kane has not shown that any lack of compliance with § 408(a) 

resulted in the Superior Court losing jurisdiction. 

(12) He also has not shown that Taylor established a new rule of 

constitutional law that applies retroactively to his conviction and renders it invalid. 

Unlike the Taylor defendant who sought to withdraw his plea almost immediately, 

Kane did not ask his counsel to withdraw the plea or seek to withdraw the plea until 

years after he was sentenced. Kane argues that the Superior Court was required to 

explore his conflicts with counsel before accepting his plea, but the only sign of a 

possible conflict at that time was Kane’s negative reaction to someone (possibly his 

 

19 Id. at 568-69. 

20 Id. at 569-70. 

21 The Superior Court had the report of the Delaware Psychiatric Center. 
8

counsel) when he first entered the courtroom for his plea and sentencing hearing. 

When the Superior Court conducted the plea colloquy, Kane indicated that he was 

not forced to plead guilty and that he was satisfied with his counsel’s representation. 

As this Court previously recognized, Kane’s guilty but mentally ill plea was 

knowing, intelligent, and voluntary.22 Kane has not shown an exception to the Rule 

61 procedural bars and the Superior Court did not err in summarily dismissing his 

third motion for postconviction relief. 

NOW, THEREFORE, IT IS ORDERED that the motion to affirm is 

GRANTED and the judgment of the Superior Court is AFFIRMED. 

 BY THE COURT: 

 /s/ Collins J. Seitz, Jr. 

 Chief Justice 

 

22 Kane, 2016 WL 1165949, at *3 (affirming the Superior Court’s denial of Kane’s first and second 

postconviction motions and recognizing that “as the Commissioner properly noted, the record in 

this case reflects that Kane was competent to enter his guilty plea and that his guilty plea was 

entered, knowingly, intelligently, and voluntarily.”).