State v. Dillard

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
)
v. ) Case No. 1105015873
)
)
DANTE DILLARD, )
Defendant. )

Submitted: February 7, 2025
Decided: April 14, 2025

COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF BE SUMMARILY DISMISSED

This 14th day of April, 2025, upon consideration of Defendant Dante Dillard’s

(“Defendant”) January 27, 2025 Memorandum of Law in Support of Motion for

Postconviction Relief, his request for appointment of postconviction counsel,1 and

the record in this matter, the following is my Report and Recommendation.

I. PROCEDURAL HISTORY

On May 20, 2011, Defendant was arrested for two counts of Murder First

Degree, one count of Robbery First Degree, three counts of Possession of a Deadly

Weapon During the Commission of a Felony, two counts of Possession of a Deadly

1
See Docket Item (“D.I.”) 90. Defendant failed to file a Motion for Postconviction Relief with
the Memorandum of Law in Support of Motion for Postconviction Relief, but this Court will
consider Defendant’s Memorandum of Law as a Motion for Postconviction Relief.
1
Weapon by a Person Prohibited, one count of Conspiracy Second Degree and one

count of Carrying a Concealed Deadly Weapon.2

On June 28, 2012, Defendant pled guilty to all indicted offenses,3 and this

Court ordered presentence investigation. On September 7, 2012, this Court

sentenced Defendant to two life sentences and eighty-five years at Level V.4

Defendant did not appeal his convictions and sentence.

On January 7, 2022, Defendant filed his first Motion for Postconviction

Relief.5 On February 23, 2022, this Court denied Defendant’s motion.6 On March

17, 2022, Defendant appealed the denial of his postconviction motion to the

Delaware Supreme Court,7 but he failed to file an opening brief, and the Delaware

Supreme Court dismissed the appeal.8

On March 24, 2023, Defendant filed his second Motion for Postconviction

Relief.9 This Court summarily dismissed Defendant’s second postconviction motion

as: (1) untimely filed under Superior Court Criminal Rule (“Rule”) 61(i)(1), and (2)

2
D.I. 3, Indictment.
3
D.I. 47.
4
D.I. 60.
5
D.I. 71.
6
D.I. 75.
7
D.I. 78.
8
Dillard v. State, 2022 WL 2311517, at *1 (Del. June 27, 2022).
9
D.I. 81.
2
a successive postconviction motion which did not comply with Rule 61(i)(2) and

Rule 61(d)(2).10

II. DISCUSSION

1. MOTION FOR APPOINTMENT OF POSTCONVICTION COUNSEL

Defendant’s Memorandum of Law in Support of the Motion for

Postconviction Relief also requests the appointment of postconviction counsel.11

Rule 61 provides this Court the discretionary authority to appoint postconviction

counsel when a Defendant enters a guilty plea.12 In that regard, Rule 61(e)(5)

expressly provides:

(5) Second or subsequent motions. For an indigent movant's second or
subsequent postconviction motion, the judge may appoint counsel for
an indigent movant only if the judge determines that the second or
subsequent motion satisfies the pleading requirements of
subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this rule.13

Rule 61(d)(2), as referenced in Rule 61(e)(5), provides as follows:

(2) Second or subsequent postconviction motions. A second or
subsequent motion under this rule shall be summarily dismissed, unless
the movant was convicted after a trial and the motion either:
(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

10
State v. Dillard, 2023 WL 4363898, at *1 (Del. Super. June 30, 2023). As discussed infra,
Defendant’s present postconviction motion suffers from the identical procedural defects as his
second postconviction motion.
11
This Court denied Defendant’s request for the appointment of postconviction counsel in his first
Motion for Postconviction Relief. D.I. 75.
12
Super. Ct. Crim. R. 61(e)(3).
13
Id.
3
(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.

As Defendant was not convicted “after a trial,” he cannot meet the pleading standard

of Rule 61(d)(2). Therefore, I recommend Defendant’s Motion for Appointment of

Postconviction Counsel be denied.

2. MOTION FOR POSTCONVICTION RELIEF

When a defendant seeks to collaterally attack a guilty plea based on ineffective

assistance of counsel, he bears the burden of proving counsel provided ineffective

representation.14 To that end, where a defendant enters a guilty plea, they must

show that “counsel’s representation fell below an objective standard of

reasonableness, and counsel’s actions were so prejudicial that there is a reasonable

probability that, but for counsel’s errors, the defendant would not have pleaded

guilty and would have insisted on going to trial.”15

Before considering the merits of any postconviction motion, this Court must

first determine whether any of Rule 61’s procedural bars are applicable.16 As

recently discussed in State v. Johnson,

This Court’s Criminal Rule 61 provides one with an efficacious, but
honed, instrument for use in seeking postconviction relief. It “balances
14
MacDonald v. State, 778 A.2d 1064, 1075 (Del. 2001).
15
Id., also see Somerville v. State, 703 A.2d 629, 631 (Del. 1997), citing Albury v. State, 551 A.2d
53, 58 - 60 (quoting Strickland v. Washington, 466 U.S. 668, 689 - 694 (1984), Hill v. Lockhart,
474 U.S. 52, 58 (1985)).
16
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
4
the law’s interest in conviction finality against the important role of the
court in preventing injustice.” Consequently, when considering
applications for postconviction relief, this Court addresses any
procedural bars before turning to the merits. Turning to the merits of
any case that does not meet the pleading requirements effectively
renders our procedural rules meaningless.17

Under Rule 61, a postconviction motion can be procedurally barred for being

untimely filed, successive, procedurally defaulted, and/or subject to former

adjudication.18

Upon initial review, Defendant’s Motion for Postconviction Relief

(“Motion”) is procedurally barred for (at least) two reasons. First, Defendant’s

Motion is untimely filed, as it was filed well more than one year after this Court

sentenced him.19 Second, this is Defendant’s third postconviction motion.20 A

defendant may file a second or subsequent postconviction motion under limited

circumstances – specifically he must satisfy the pleading requirements of Rule

61(d)(2) before this Court will reach the merits of his claim(s).21

Defendant incorrectly asserts the procedural bars of Rule 61 are inapplicable

to his claim. He argues “an exception to these bars is contained [in] Rule 61(i)(3)(A)

and (B): the court may consider such a motion for postconviction relief ‘if it finds

17
State v. Johnson, 2025 WL 883031, at *2 (Del. Super. Mar. 20, 2025) (internal citations omitted).
18
Super. Ct. Crim. R. 61(i)(1)-(4).
19
Super. Ct. Crim. R. 61(i)(1). This Court sentenced Defendant on October 12, 2012. See D.I. 47.
20
Defendant concedes that this is not his first attempt to “obtain relief from his criminal conviction.
In fact, he expressly admits “the instant motion must be interpreted as Dillard’s third motion for
postconviction relief.” D.I. 90, p. 3.
21
See Super. Ct. Crim. R. 61(i)(2)(i).
5
cause for relief . . . and prejudice from a violation of defendant’s rights.”22

Defendant’s argument fails because the cause and prejudice requirements of Rule

61(i)(3) apply only to the procedural bar identified in Rule 61(i)(3) – that “any

ground for relief not asserted in the proceedings leading to the judgment of

conviction, as required by the rules of this court, is thereafter barred. . ..”23 This

procedural bar prohibits a defendant from raising a claim in postconviction which

he or she failed to raise “in the proceedings leading to the judgment of conviction,”

i.e., before or during trial, or on direct appeal. It has no impact on the bar imposing

a strict time limitation of one year to file a postconviction claim,24 or the bar

prohibiting successive postconviction motions.25

It is important to recognize that Rule 61 does provide a mechanism for a

defendant to potentially overcome the procedural bars noted above and present an

untimely or successive postconviction motion, but to do so, a defendant must satisfy

Rule 61(i)(5). Rule 61(i)(5) provides:

[T]he bars to relief in paragraphs (1), (2), (3), and (4) of this subdivision
shall not apply either to a claim that the court lacked jurisdiction or to
a claim that satisfies the pleading requirements of subparagraphs (2)(i)
or (2)(ii) of subdivision (d) of this Rule.26

22
Id. at p.4.
23
Super. Ct. Crim. R. 61(i)(3).
24
Super. Ct. Crim. R. 61(i)(1).
25
Super. Ct. Crim. R. 61(i)(2).
26
Super. Ct. Crim. R. 61(i)(5).
6
In this regard, Defendant’s motion fails – he neither alleges this Court lacks

jurisdiction nor does he claim that new evidence exists that creates a strong inference

that he is “actually innocent in fact of the acts underlying the charges of which he

was convicted,” or 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 his conviction or death sentence

invalid.”27 Defendant’s claim is not premised on a claim of “actual innocence” and

he does not contest his guilt – instead he argues counsel was ineffective for failing

to “enter a guilty but mentally ill plea” on his behalf.28

Additionally, Defendant cannot demonstrate prejudice, because a defendant

who has entered a plea to guilty but mentally ill “may have any sentence imposed

which may be lawfully imposed upon any defendant for the same offense.” 29

Therefore, Defendant’s mandatory life without parole sentences for two counts of

Murder First Degree, and any mandatory sentences for the remaining offenses to

which he pled guilty, must be imposed even if he entered a guilty but mentally ill

plea.30

27
See Super. Ct. Crim. R. 61(i)(5) and Super. Ct. Crim. R. 61(d)(2)(i) and (ii).
28
D.I. 90, p. 10.
29
See 11 Del. C. § 408(b).
30
See generally Sanders v. State, 585 A.2d 117, 124-25 (Del. 1990).
7
III. CONCLUSION

It is apparent from a review of Defendant’s motion that he cannot overcome

the timeliness and successive filing procedural bars, and he is not entitled to relief.

Therefore, I recommend Defendant’s Motion for the Appointment of Postconviction

Counsel be DENIED, and Defendant’s Motion for Postconviction Relief be

SUMMARILY DISMISSED.

IT IS SO RECOMMENDED.

/s/ Martin B. O’Connor
The Honorable Martin B. O’Connor

Cc: Prothonotary
John Downs, Deputy Attorney General
Barzi Axelrod, Deputy Attorney General
John S. Edinger, Assistant Public Defender
Dante Dillard (SBI # 00185791)

8