Dollard v. State

• Court: Supreme Court of Delaware
• Decided: May 11, 2020
• Docket: 34, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JERMAINE DOLLARD, § § Defendant Below, § No. 34, 2020 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1710006721 (N) § Plaintiff Below, § Appellee. §

Submitted: March 18, 2020 Decided: May 11, 2020

Before SEITZ, Chief Justice; VALIHURA and MONTGOMERY-REEVES, Justices.

ORDER

After consideration of the opening brief, the motion to affirm, and the record

on appeal, it appears to the Court that:

(1) The appellant, Jermaine Dollard, filed this appeal from the Superior

Court’s denial of his first motion for postconviction relief under Superior Court

Criminal Rule 61. The State of Delaware has filed a motion to affirm the judgment

below on the ground that it is manifest on the face of Dollard’s opening brief that

his appeal is without merit. We agree and affirm.

(2) In October 2017, Dollard and others were indicted on multiple charges

arising from a drug dealing enterprise. This indictment was followed by several superseding indictments. The Superior Court denied Dollard’s motions for

reduction of bail and to suppress evidence. On September 4, 2018, Dollard pled

guilty to conspiracy to commit racketeering, drug dealing cocaine, money

laundering, and drug dealing oxycodone. During his guilty plea colloquy with the

Superior Court, Dollard affirmed that no one threatened or forced him to plead

guilty, he understood that he was waiving certain rights, including the right to a trial,

and that he was guilty of conspiracy to commit racketeering, drug dealing cocaine,

money laundering, and drug dealing oxycodone.

(3) The Superior Court followed the parties’ sentencing recommendation

and sentenced Dollard to three years of non-suspended Level V incarceration.

Dollard did not appeal, but did file a motion to modify his sentence, a petition for a

writ of habeas corpus, and a motion for correction of illegal sentence. The Superior

Court denied the motions and petition.

(4) In June 2019, Dollard filed a timely motion for postconviction relief

under Superior Court Criminal Rule 61. Dollard argued that: (i) there was no

probable cause for the search warrant; (ii) his counsel was ineffective because he

failed to notify him that the first indictment was dismissed and that there were

superseding indictments, provide him with discovery, attack the absence of the

police office witnesses at the suppression hearing, and move for reduction of bail

after the indictments were dismissed; (iii) the Superior Court erred in denying the

2 motion to suppress; (iv) the telephones and telephone records were not

authenticated; (v) his guilty plea was coerced; and (vi) Double Jeopardy. Dollard

also filed a motion for appointment of counsel. Dollard subsequently sought to add

claims that his counsel should have negotiated a different plea agreement, a

probation officer should not have conducted surveillance of him, and malicious

prosecution.

(5) After receiving an affidavit from Dollard’s counsel and the State’s

response, the Superior Court denied Dollard’s motions. The Superior Court

concluded that the ineffective assistance of counsel claims were without merit,

Dollard could have raised the new claims in his original motion for postconviction

relief, and there was no basis for appointment of counsel. This appeal followed.

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

for abuse of discretion and questions of law de novo.1 The Court must consider the

procedural requirements of Rule 61 before addressing any substantive issues.2 On

appeal, Dollard refers to the claims he raised below, primarily focusing on his claims

concerning the lack of probable cause for the search warrant and the denial of the

motion to suppress.

1 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996). 2 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

3 (7) Rule 61(i)(3) provides that any ground for relief that was not asserted

in the proceedings leading to the judgment of conviction is thereafter barred unless

the defendant can establish cause for relief from the procedural default and prejudice

from a violation of the defendant's rights. To establish cause, the movant must

demonstrate that an external impediment prevented him from raising the claim

earlier.3 To establish prejudice, the movant must show actual prejudice resulting

from the alleged error.4 Rule 61(i)(4) bars any ground for relief that was previously

adjudicated. As the Superior Court recognized, Dollard’s ineffective assistance of

counsel claims were not procedurally barred.

(8) To support a claim of ineffective assistance of counsel, Dollard had to

show that: (i) his counsel’s conduct fell below an objective standard of

reasonableness; and (ii) there was a reasonable probability that, but for his counsel’s

errors, he would not have pled guilty but would have insisted on going to trial.5 A

defendant asserting a claim of ineffective assistance must make concrete allegations

of cause and actual prejudice to substantiate a claim of ineffective assistance of

counsel.6 Although not insurmountable, there is a strong presumption that counsel’s

representation was professionally reasonable.7

3 Id. at 556. 4 Id. 5 Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Albury v. State, 551 A.2d 53, 59 (Del. 1988). 6 Younger, 580 A.2d at 556. 7 Albury, 551 A.2d at 59.

4 (9) Having carefully considered the parties’ submissions on appeal and the

Superior Court record—including the affidavit filed by Dollard’s former counsel in

response to the allegations of ineffectiveness—we conclude that the Superior Court

did not err in finding Dollard’s ineffective assistance claims were without merit. As

to Dollard’s claims that the search warrant was not supported by probable cause and

that the Superior Court erred in denying his motion to suppress, those claims are

procedurally barred by Rule 61(i)(4). The record also reflects that Dollard’s guilty

plea was knowing, intelligent, and voluntary. A defendant who enters a knowing,

intelligent, and voluntary guilty plea waives his right to challenge errors occurring

before the entry of the plea.8

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

8 Miller v. State, 840 A.2d 1229, 1232 (Del. 2003).