IN THE SUPREME COURT OF THE STATE OF DELAWARE
WALTER LOLLEY, § § Defendant Below, § No. 456, 2024 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1812005541 (N) § Appellee. §
Submitted: April 11, 2025 Decided: June 17, 2025
Before SEITZ, Chief Justice; LEGROW and GRIFFITHS, Justices.
ORDER
Upon consideration of the parties’ briefs and the record on appeal, it appears
to the Court that:
(1) In May 2018, police found the bodies of Thessalonians Berry and Isabel
Cooper in the front seat of a car near the intersection of Kiamensi Road and Rothwell
Drive in New Castle County, Delaware. Both had been shot from behind at close-
range. Witness statements, video surveillance footage, and a blood-stained shirt with
gunshot residue implicated Walter Lolley as the shooter. Lolley fled from Delaware
to Georgia, which is where law enforcement eventually apprehended him.
(2) In April 2019, a grand jury indicted Lolley for two counts of first-
degree murder, two counts of possession of a firearm during the commission of a felony, and two counts of possession of a firearm by a person prohibited. In February
2020, Lolley entered a Robinson plea to two counts of second-degree murder as
lesser-included offenses of first-degree murder.1 The State agreed that it would not
seek to declare Lolley a habitual offender and to cap its sentencing recommendation
to thirty years of Level V incarceration. After Lolley entered his plea, the Superior
Court ordered a presentencing investigation.
(3) Prior to Lolley’s sentencing hearing, Lolley filed pro se motions to
withdraw his plea in October 2020 and January 2021. Lolley alleged that his counsel
had failed to file a motion to suppress, ignored his requests to provide him with
discovery, and failed to file a motion to withdraw his plea. Lolley further claimed
that he faced a sentence capped at thirty years—not thirty years to life
imprisonment—as set forth in the Truth-in-Sentencing Plea Form. The Superior
Court denied the motions, finding that Lolley had knowingly, intelligently, and
voluntarily entered the plea.
(4) On July 23, 2021, the Superior Court sentenced Lolley to 100 years of
Level V incarceration, suspended after thirty years for decreasing levels of
supervision. Lolley did not file a direct appeal.
1 Robinson v. State, 291 A.2d 279, 281 (Del. 1972) (permitting the acceptance of a guilty plea in the absence of an admission of guilt).
2 (5) On August 11, 2022, Lolley filed a motion for ineffective assistance of
counsel. According to the Superior Court docket, the motion was sent back to Lolley
as non-conforming on September 23, 2022. On November 22, 2022, Lolley moved
for appointment of counsel and postconviction relief under Superior Court Criminal
Rule 61.
(6) The Superior Court appointed counsel to represent Lolley
(“Postconviction Counsel”) and issued a briefing schedule. Lolley’s trial counsel
filed an affidavit responding to the pro se claims of ineffective assistance. On
December 22, 2023, Postconviction Counsel moved to withdraw, stating that
Lolley’s postconviction claims were untimely and that the record revealed no other
possible claims. Lolley and the State submitted responses.
(7) On October 1, 2024, the Superior Court denied Lolley’s motion for
postconviction relief.2 The court found that the postconviction motion was timely,
but that Lolley’s claims were non-meritorious.3 The court subsequently granted
Postconviction Counsel’s motion to withdraw. This appeal followed.
(8) The Court reviews the Superior Court’s denial of postconviction relief
for abuse of discretion and questions of law de novo.4 The Court applies the
2 State v. Lolley, 2022 WL 22882067 (Del. Super. Ct. Oct. 1, 2024). 3 Id. at *2-*5. 4 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
3 procedural requirements of Rule 61 before addressing any substantive issues,5 but
the procedural bars of Rule 61 do not apply to timely claims of ineffective assistance
of counsel.6 Any claims raised below, but not raised on appeal are deemed waived.7
(9) On appeal, Lolley argues that his trial counsel was ineffective for (i)
not providing him with all of the discovery and lying about the evidence; (ii) failing
to move to suppress the evidence; (iii) and failing to assist him with the motion to
withdraw his plea, which he claims was coerced. Lolley further argues that (iv) the
State breached the plea agreement; and (v) he is innocent.
(10) As a threshold issue, the procedural requirements of Rule 61 do not bar
Lolley’s claims of ineffective assistance. As the Superior Court found, Lolley’s first
motion for postconviction relief was timely because it was filed within one year of
his conviction becoming final.8
(11) To prevail on a claim of ineffective assistance of counsel, a movant
must 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, the result of the proceeding would have been different.9 In the context of a
5 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 6 Green v. State, 238 A.3d 160, 175 (Del. 2020); Bradley v. State, 135 A.3d 748, 759 (Del. 2016). 7 Somerville v. State, 703 A.2d 629, 631 (Del. 1997). 8 Lolley, 2022 WL 22882067, at *3. Because Lolley did not file a direct appeal, his conviction became final thirty days after the imposition of his sentence on July 23, 2021. Del. Super. Ct. Crim. R. 61(m)(1)(i). 9 Strickland v. Washington, 466 U.S. 668, 688-94 (1984).
4 guilty plea, the movant must show that but for his counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.10
(12) Lolley argues that his trial counsel was ineffective because he did not
receive all of the discovery until after he was sentenced. But, as Lolley’s trial
counsel explained in his affidavit, he gave Lolley a copy of the discovery and only
withheld discovery that was subject to a protective order. Trial counsel further
averred that he reviewed the evidence with Lolley, with a focus on evidence that the
State was likely to rely upon at trial. Notably, that evidence included (a) expert
testimony that the victims were shot from the rear of the car where Lolley was seen
shortly before the shooting and (b) gunshot residue on a shirt belonging to Lolley.
Although Lolley further claims that his trial counsel gave him false information, the
record does not support these contentions. Without any evidentiary support, Lolley
accuses trial counsel of falsely informing him that his cell phone was found at the
scene of the crime. He also states that trial counsel initially misinformed him that
there were photographs showing him with a gun. But prior to entering the plea,
Lolley heard from the State. The State summarized the evidence that it intended to
use at trial, none of which included the allegedly false information he now raises.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE SUPREME COURT OF THE STATE OF DELAWARE
WALTER LOLLEY, § § Defendant Below, § No. 456, 2024 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1812005541 (N) § Appellee. §
Submitted: April 11, 2025 Decided: June 17, 2025
Before SEITZ, Chief Justice; LEGROW and GRIFFITHS, Justices.
ORDER
Upon consideration of the parties’ briefs and the record on appeal, it appears
to the Court that:
(1) In May 2018, police found the bodies of Thessalonians Berry and Isabel
Cooper in the front seat of a car near the intersection of Kiamensi Road and Rothwell
Drive in New Castle County, Delaware. Both had been shot from behind at close-
range. Witness statements, video surveillance footage, and a blood-stained shirt with
gunshot residue implicated Walter Lolley as the shooter. Lolley fled from Delaware
to Georgia, which is where law enforcement eventually apprehended him.
(2) In April 2019, a grand jury indicted Lolley for two counts of first-
degree murder, two counts of possession of a firearm during the commission of a felony, and two counts of possession of a firearm by a person prohibited. In February
2020, Lolley entered a Robinson plea to two counts of second-degree murder as
lesser-included offenses of first-degree murder.1 The State agreed that it would not
seek to declare Lolley a habitual offender and to cap its sentencing recommendation
to thirty years of Level V incarceration. After Lolley entered his plea, the Superior
Court ordered a presentencing investigation.
(3) Prior to Lolley’s sentencing hearing, Lolley filed pro se motions to
withdraw his plea in October 2020 and January 2021. Lolley alleged that his counsel
had failed to file a motion to suppress, ignored his requests to provide him with
discovery, and failed to file a motion to withdraw his plea. Lolley further claimed
that he faced a sentence capped at thirty years—not thirty years to life
imprisonment—as set forth in the Truth-in-Sentencing Plea Form. The Superior
Court denied the motions, finding that Lolley had knowingly, intelligently, and
voluntarily entered the plea.
(4) On July 23, 2021, the Superior Court sentenced Lolley to 100 years of
Level V incarceration, suspended after thirty years for decreasing levels of
supervision. Lolley did not file a direct appeal.
1 Robinson v. State, 291 A.2d 279, 281 (Del. 1972) (permitting the acceptance of a guilty plea in the absence of an admission of guilt).
2 (5) On August 11, 2022, Lolley filed a motion for ineffective assistance of
counsel. According to the Superior Court docket, the motion was sent back to Lolley
as non-conforming on September 23, 2022. On November 22, 2022, Lolley moved
for appointment of counsel and postconviction relief under Superior Court Criminal
Rule 61.
(6) The Superior Court appointed counsel to represent Lolley
(“Postconviction Counsel”) and issued a briefing schedule. Lolley’s trial counsel
filed an affidavit responding to the pro se claims of ineffective assistance. On
December 22, 2023, Postconviction Counsel moved to withdraw, stating that
Lolley’s postconviction claims were untimely and that the record revealed no other
possible claims. Lolley and the State submitted responses.
(7) On October 1, 2024, the Superior Court denied Lolley’s motion for
postconviction relief.2 The court found that the postconviction motion was timely,
but that Lolley’s claims were non-meritorious.3 The court subsequently granted
Postconviction Counsel’s motion to withdraw. This appeal followed.
(8) The Court reviews the Superior Court’s denial of postconviction relief
for abuse of discretion and questions of law de novo.4 The Court applies the
2 State v. Lolley, 2022 WL 22882067 (Del. Super. Ct. Oct. 1, 2024). 3 Id. at *2-*5. 4 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
3 procedural requirements of Rule 61 before addressing any substantive issues,5 but
the procedural bars of Rule 61 do not apply to timely claims of ineffective assistance
of counsel.6 Any claims raised below, but not raised on appeal are deemed waived.7
(9) On appeal, Lolley argues that his trial counsel was ineffective for (i)
not providing him with all of the discovery and lying about the evidence; (ii) failing
to move to suppress the evidence; (iii) and failing to assist him with the motion to
withdraw his plea, which he claims was coerced. Lolley further argues that (iv) the
State breached the plea agreement; and (v) he is innocent.
(10) As a threshold issue, the procedural requirements of Rule 61 do not bar
Lolley’s claims of ineffective assistance. As the Superior Court found, Lolley’s first
motion for postconviction relief was timely because it was filed within one year of
his conviction becoming final.8
(11) To prevail on a claim of ineffective assistance of counsel, a movant
must 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, the result of the proceeding would have been different.9 In the context of a
5 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 6 Green v. State, 238 A.3d 160, 175 (Del. 2020); Bradley v. State, 135 A.3d 748, 759 (Del. 2016). 7 Somerville v. State, 703 A.2d 629, 631 (Del. 1997). 8 Lolley, 2022 WL 22882067, at *3. Because Lolley did not file a direct appeal, his conviction became final thirty days after the imposition of his sentence on July 23, 2021. Del. Super. Ct. Crim. R. 61(m)(1)(i). 9 Strickland v. Washington, 466 U.S. 668, 688-94 (1984).
4 guilty plea, the movant must show that but for his counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.10
(12) Lolley argues that his trial counsel was ineffective because he did not
receive all of the discovery until after he was sentenced. But, as Lolley’s trial
counsel explained in his affidavit, he gave Lolley a copy of the discovery and only
withheld discovery that was subject to a protective order. Trial counsel further
averred that he reviewed the evidence with Lolley, with a focus on evidence that the
State was likely to rely upon at trial. Notably, that evidence included (a) expert
testimony that the victims were shot from the rear of the car where Lolley was seen
shortly before the shooting and (b) gunshot residue on a shirt belonging to Lolley.
Although Lolley further claims that his trial counsel gave him false information, the
record does not support these contentions. Without any evidentiary support, Lolley
accuses trial counsel of falsely informing him that his cell phone was found at the
scene of the crime. He also states that trial counsel initially misinformed him that
there were photographs showing him with a gun. But prior to entering the plea,
Lolley heard from the State. The State summarized the evidence that it intended to
use at trial, none of which included the allegedly false information he now raises.
Lolley therefore has not demonstrated that, but for these alleged errors, he would
have insisted on going to trial. The Superior Court did not err in concluding that
10 Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Albury v. State, 551 A.2d 53, 59 (Del. 1988).
5 Lolley failed to show that his trial counsel’s handling of discovery was objectively
unreasonable or that he was prejudiced.
(13) Lolley next contends that his trial counsel was ineffective for failing to
file a motion to suppress two shirts found near the crime scene. Lolley argues that
it was impossible for the shirts to belong to him as the State claimed. But Lolley
provides no explanation beyond this conclusory remark. Furthermore, a review of
the record supports the conclusion in trial counsel’s affidavit that there was no
meritorious basis for a suppression motion. At the plea colloquy, the prosecutor
referred to a shirt found at the crime scene with Lolley’s blood on it as well as
gunshot residue. The prosecutor also described Lolley and one of the victims as
wearing matching outfits that Lolley had purchased on the day of the shootings.
Thus, Lolley fails to identify any basis for a motion to suppress and fails to show
that his trial counsel’s decision not to file a motion to suppress was objectively
unreasonable.
(14) Next, Lolley asserts that his trial counsel was ineffective for failing to
assist him with the motion to withdraw his plea. Lolley filed his pro se motions to
withdraw his plea, alleging ineffective assistance of trial counsel in October 2020
and January 2021. In his affidavit responding to the motions, Lolley’s trial counsel
stated that he did not recall Lolley asking to withdraw his plea until sentencing. The
Superior Court denied the pro se motions in May 2021. Several months later, this
6 Court issued its decision in Reed v. State regarding defense counsel’s obligations
regarding a defendant’s request to withdraw a guilty plea.11 There, we held that:
a criminal defendant’s control of the objectives of the representation prior to sentencing requires that counsel either obey an instruction to file a motion to withdraw a guilty plea, or seek leave to withdraw so that the defendant can file the motion with other counsel or pro se. If the defendant’s reasons for filing the motion to withdraw include an assertion that his or her counsel has been ineffective or coerced the defendant into pleading, then defense counsel should ask the court to appoint new unconflicted counsel to handle the filing of the motion. Even if counsel believes the defendant’s motion is contrary to his interest or is without merit, a defendant’s decision to attempt to withdraw a plea prior to sentencing cannot be overruled by counsel.12
Even assuming Reed applies retroactively and Lolley’s trial counsel refused to file a
motion to withdraw the plea, Lolley cannot show a reasonable probability that but
for his trial counsel’s error, he would have insisted on going to trial and the Superior
Court would have granted his motion to withdraw the plea.13
(15) Under Rule 32(d), the defendant bears the burden of showing a fair and
just reason to permit withdrawal of his plea. Under Scarborough v. State, the
relevant factors to consider are whether: (i) there was a procedural defect in taking
11 258 A.3d 807 (Del. 2021). 12 Id. at 829. 13 Id. (holding that to satisfy the prejudice prong of Strickland in the plea withdrawal context the movant must show that there is some reasonable probability that but for counsel’s error, he would have insisted on going to trial and the trial court would have granted his motion to withdraw the plea). See also Morrison v. State, 2022 WL 790507, at *3-*5 (Del. Mar. 16, 2022) (concluding that the defendant had not shown prejudice in the plea withdrawal context where he failed to show a reasonable probability that he would have insisted on going to trial and the Superior Court would have granted a motion to withdraw the plea).
7 the plea; (ii) the defendant knowingly and voluntarily consented to the plea
agreement; (iii) the defendant had a basis to assert legal innocence; (iv) the defendant
had adequate legal counsel throughout the proceedings; and (v) granting the motion
would prejudice the State or unduly inconvenience the court.14
(16) Lolley has not identified any procedural defect in the taking of his
plea.15 He claims that his trial counsel coerced him into entering the Robinson plea,
but the record refutes this claim. In the Truth-in-Sentencing Guilty Plea Form,
Lolley indicated that he freely and voluntarily decided to enter the plea. No one
forced him to enter the plea, and he understood that he was waiving certain
constitutional rights. During the plea colloquy, Lolley affirmed that he had reviewed
the plea agreement with his counsel and that no one was forcing him to enter into
the plea agreement. Lolley claims that his trial counsel and the prosecutor added life
imprisonment as the maximum penalty for second-degree murder after he signed the
Truth-in-Sentencing Guilty Plea Form. But this contention contradicts his responses
to the trial judge during the plea colloquy. There, Lolley stated that he understood
the sentence for second-degree murder was fifteen years to life imprisonment and
14 938 A.3d 644, 649 (Del. 2007). 15 Although the plea transcript states that Lolley said he pleaded “guilty for robbery second” when the court asked how he pleaded to the charges of second-degree murder, this appears to be a transcription error of “guilty for Robinson.” Ans. Br. App. at B28-B29.
8 that the Superior Court could sentence him to life imprisonment. The record shows
that Lolley knowingly and voluntarily entered the Robinson plea.
(17) Lolley does not have a basis to assert legal innocence. A person is
guilty of second-degree murder when he “recklessly causes the death of another
person under circumstances which manifest a cruel, wicked and depraved
indifference to human life.”16 Following the prosecutor’s proffer of the evidence
that would be presented at trial—(i) surveillance video showing Lolley in the back
seat of the vehicle with the victims in the front seat minutes before the victims were
shot from behind, (ii) the presence of Lolley’s shirt with his blood and gunshot
residue near the car, and (iii) Lolley’s flight to Georgia—the State had sufficient
evidence to prove that he was guilty of second-degree murder. Lolley now claims
that one of the elements of second-degree murder was unsatisfied. But he fails to
identify which one. To the extent he is arguing that he can assert legal innocence
because he was under the influence of PCP when he committed the murders, he is
mistaken. Voluntary intoxication is not a defense.17
(18) Lolley has not shown that he lacked adequate legal counsel. Lolley’s
trial counsel communicated with him throughout the proceedings, reviewed the
16 11 Del. C. § 635(1). 17 11 Del. C. § 421 (“The fact that a criminal act was committed while the person committing such act was in a state of intoxication, or was committed because of such intoxication, is no defense to any criminal charge if the intoxication was voluntary.”).
9 evidence with him, and advised him on the merits of possible defenses. Finally, the
other Scarborough factors weigh heavily against withdrawal of the plea. Lolley has
not shown a reasonable probability that but for his counsel’s failure to assist him
with the filing of his motion to withdraw the plea, he would have insisted on going
to trial and that the trial court would have granted his motion to withdraw the plea.
(19) Lolley also claims that the State breached the plea agreement by asking
the Superior Court to sentence him to fifty years of Level V incarceration, suspended
after the fifteen-year minimum mandatory for each count of second-degree murder.
In the plea agreement, the State agreed to cap its sentencing recommendation to
thirty years. Rule 61(i)(3) bars this claim because Lolley did not raise it on direct
appeal and has failed to show “[c]ause for relief from the procedural default…and
[p]rejudice from violation of the movant’s rights.”18
(20) Last, Lolley asserts actual innocence based on his claim that an
unspecified element of second-degree murder was unsatisfied. As previously
discussed, we find that this claim lacks merit.19 The Superior Court did not err in
denying Lolley’s motion for postconviction relief.
18 Super. Ct. Crim. R. 61(i)(3). See also Medley v. State, 2024 WL 5074826, at *3 (Del. Dec. 10, 2024) (holding Rule 61(i)(3) barred claim where the defendant failed to raise the claim on direct appeal and failed to establish cause and prejudice; Wheeler v. State, 296 A.3d 363, 374-75 (Del. 2023) (same). 19 See supra ¶ 17.
10 NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ N. Christopher Griffiths Justice