State v. Harper

• Court: Superior Court of Delaware
• Decided: March 16, 2026
• Docket: 2307016193
• Status: Published

Opinion

IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) Crim. ID No. 2307016193 ) DOMINIQUE HARPER, )

Submitted: December 15, 2025 Decided: March 16, 2026

Upon Defendant Dominique Harper’s Motion for Postconviction Relief, DENIED.

MEMORANDUM OPINION AND ORDER

Brianna Mills, Esquire, Deputy Attorney General, DELAWARE DEPARTMENT OF JUSTICE, Attorney for the State of Delaware.

Dominique Harper, Self Represented

LUGG, J. Dominique Harper has filed a motion seeking postconviction relief. Despite

pleading guilty, he challenges the performance of his attorney’s representation at

various stages of his case. The Court has reviewed Harper’s motion,1 the affidavit

of counsel,2 the State’s response,3 and the record in this case.4 Harper’s motion for

postconviction relief is denied.

FACTUAL BACKGROUND5

On Thursday July 27, 2023, Officer Gliem of the Wilmington Police

Department responded to an after-the-fact report of a domestic violence event

alleged to have occurred on July 22, 2023. The victim of this event informed Officer

Gliem that, on July 20, 2023, she ended her relationship with her then-boyfriend,

Dominique Harper and asked Harper to cease communicating with her. Within days,

Harper ignored her request.

1 D.I 21 (Def. Mot.). 2 D.I 27 (Trial Counsel Aff.). 3 D.I 29 (State Resp.). 4 The Court’s June 26, 2025, scheduling order provided Harper the opportunity to file a memorandum of law in support of his postconviction motion by September 30, 2025, and to reply to the State’s response within 45 days of the docketing of the State’s response. D.I. 28. Harper filed neither. Because Harper’s reply was due within 45 days of the filing of the State’s response, or December 15, 2025, the Court considers this matter under submission as of that date. 5 D.I. 1. Because Harper pled guilty, the Court draws the facts from the affidavit of probable cause supporting the warrant for his arrest.

2 The victim told Officer Gliem that, on July 22, 2023, Harper keyed in the code

to unlock the front door of her residence, entered without her permission, and

confronted her in the living room. A verbal altercation quickly devolved to physical

violence. Harper spit on the victim then punched her with sufficient force to knock

her to the ground. Harper continued battering the victim while she was on the

ground, then began to choke her. After extricating herself from this attack, the victim

sought medical attention at the Saint Francis Hospital.

While speaking with the victim five days after the attack, Officer Gliem

observed red marks on her neck and noted that she had difficulty making a fist due

to injuries to her left hand. The victim also provided Officer Gliem photographs of

her injuries and video surveillance from within her residence “that captured the

entire incident.” Officers arrested Harper on August 5, 2023.

PROCEDURAL BACKGROUND

On November 20, 2023, a New Castle County grand jury returned an

indictment charging Harper with Burglary First Degree, Strangulation, Assault

Second Degree, and Offensive Touching.6 On June 13, 2024, Harper pled guilty to

Criminal Trespass First Degree (an included offense of Burglary First Degree),

Strangulation, and Assault Third Degree (an included offense of Assault Second

6 D.I. 4.

3 Degree).7 Under the plea, the State “agree[d] to cap its recommendation for

unsuspended level V time at 18 months,” and “agree[d] not to declare the Defendant

a habitual offender.”8 At the parties joint request, the Court ordered a presentence

investigation.

On September 6, 2024, the Court sentenced Harper to an aggregate term of 10

years at supervision level 5, suspended after 2 years for level 4 placement at the

discretion of the Department of Correction, suspended after successful completion

of the designated level 4 program for 2 years of community supervision at level 3.9

On November 12, 2024, Harper filed a “Motion for Modification of Sentence”10

which the Court denied on December 13, 2024.11

On March 20, 2025, acting pro se, Harper filed a “Motion for Postconviction

Relief”12 and a “Motion for Appointment of Counsel.”13 On April 11, 2025, the

Court denied Harper’s request for appointment of counsel and ordered an expansion

of the record under Superior Court Criminal Rule 61(g) to include an affidavit from

7 D.I. 13 (“Plea Agreement” and “Truth-in-Sentencing (“TIS”) Guilty Plea Form”). 8 Plea Agreement. 9 D.I. 17. 10 D.I. 19. 11 D.I. 20. 12 D.I. 21. 13 D.I. 22.

4 Trial Counsel addressing Harper’s claims.14 On June 6, 2024, Trial Counsel

provided her affidavit.15 The Court then entered a scheduling order permitting

Harper to file a “Memorandum of Law in support of his postconviction motion by

September 30, 2025,” directing the State to “file its response and supporting

materials on or before November 1, 2025,” and allowing Harper to “file any reply to

the State’s response within 45 days of the docketing of the State’s response.”16

Harper did not file a memorandum of law, and the State responded to his original

motion on October 31, 2025.17 Harper did not reply.

In his motion, Harper asserts three claims of ineffective assistance of counsel.

First, he contends Trial Counsel “failed to consider the facts of the case and

defendant’s version of what happened, resulting in counsel failing to develop an

appropriate defense strategy for trial.”18 Second, he argues Trial Counsel “advocated

for defendant’s entry into a plea agreement that was not in defendant’s best

14 D.I. 26. 15 D.I. 27. (“Affidavit of Trial Counsel”). 16 D.I. 28. 17 D.I. 29 (“State’s Resp”). 18 Def. Mot. at 4.

5 interest.”19 And, third, he posits Trial Counsel “failed to object” to a photograph

offered by the State at sentencing depicting the victim’s injuries.20

ANALYSIS

“Superior Court Criminal Rule 61 provides the exclusive remedy for setting

aside final judgment of conviction.”21 Rule 61 is “intended to correct errors in the

trial process, not to allow defendants unlimited opportunities to relitigate their

convictions.”22 Rule 61 provides incarcerated individuals a procedure to seek to

have a conviction set aside on the ground that the Court lacked jurisdiction or to

collaterally attack their conviction.23 When evaluating a Rule 61 Motion, the Court

“first must consider the procedural requirements of the rule before addressing any

substantive issues.”24 The rule prohibits the Court from considering a motion that

is: (1) untimely (filed more than one year after the judgment of conviction is final);25

19 Id. 20 Id. at 4-5. 21 Jackson v. State, 2007 WL 2231072, at *1 (Del. Aug. 2, 2007). 22 Ploof v. State, 75 A.3d 811, 820 (Del. 2013). 23 Super. Ct. Crim R. 61(a)(1). 24 Maxion v. State 686 A.2.d 148, 150 (Del. 1996) (citing Younger v. State, 580 A.2d 552, 554 (Del. 1990)). 25 Super Ct. Crim R. 61(i)(1).

6 (2) repetitive;26 (3) procedurally defaulted;27 or (4) formerly adjudicated.28 “Absent

extraordinary circumstances, an ineffective-assistance-of-counsel claim cannot be

asserted in the proceedings leading to a judgment of conviction.”29 Harper’s motion

is timely, and none of Rule 61’s procedural bars preclude consideration for his

ineffective assistance of counsel claims.

Ineffective Assistance of Counsel

To succeed on an ineffective assistance of counsel claim, Harper must meet

the two-prong test established by the United States Supreme Court in Strickland v.

Washington.30 Under Strickland, a defendant must show (1) “that counsel’s

representation fell below an objective standard of reasonableness;”31 and (2) “that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”32 A reasonable probability is a

probability sufficient to undermine the confidence in the outcome.”33

26 Super Ct. Crim R. 61(i)(2). 27 Super Ct. Crim R. 61(i)(3). 28 Super Ct. Crim R. 61(i)(4). 29 Kellam v. State, 341 A.3d 475, 489 (Del. 2025). 30 Strickland v. Washington 466 U.S. 668, 687 (1984). 31 Id. at 688. 32 Id. at 694. 33 Id.

7 The Court may dispose of an ineffective assistance of counsel claim if the

defendant fails to show a reasonable probability of a different result but for the

counsel’s alleged errors.34 “[A]ctual ineffectiveness claims alleging a deficiency in

attorney performance are subject to a general requirement that the defendant

affirmatively prove prejudice.”35 A defendant must allege prejudice and then

substantiate that allegation.36 Because a defendant must prove both parts of an

ineffective assistance of counsel claim, a failure to establish sufficient prejudice

alone is enough to defeat an ineffective assistance of counsel allegation. “It is not

enough ‘to show that the errors had some conceivable effect on the outcome of the

proceeding.”’37 The “court must consider the ‘totality of the evidence,’ and ‘must

ask if the [movant] has met the burden of showing that the decision reached would

reasonably likely have been different absent the errors.”’38

An ineffective assistance of counsel claim is a question of whether trial

counsel’s actions were adequate.39 A review of counsel’s representation is subject

34 Id. at 697. 35 Id. at 693. 36 Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996). 37 Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 693). 38 State v. Reyes, 155 A.3d 331, 343 (Del. 2017) (citing Swan v. State, 28 A.3d 362, 384 (Del. 2011) (quoting Strickland, 466 U.S. at 695-96)). 39 State v. Wright, 2023 WL 2128338, at *3 (Del. Super. Ct. Feb. 21, 2023).

8 to a strong presumption that counsel’s conduct was professionally reasonable.40 As

such, mere allegations will not suffice; instead, a defendant must make concrete

allegations of ineffective assistance, and then substantiate them, or risk summary

dismissal.41 And, “a defendant who enters a knowing, intelligent, and voluntary

guilty plea waives his right to challenge errors occurring before the entry of the

plea.”42

Harper’s Ineffective Assistance of Counsel Claims

1. Trial Counsel considered and investigated Harper’s version of the events.

Harper alleges his Trial Counsel was ineffective for failing “to consider the

facts of the case and defendant’s version of what happened, resulting in counsel

failing to develop an appropriate defense strategy for trial.”43 Further, Harper

argues, Trial Counsel “failed to obtain the available video footage of the alleged

incident, which would have corroborated defendant’s version of the facts”, causing

“defendant to plead guilty.”44

40 Id. 41 Younger v. State, 580 A.2d 553, 556 (Del. 1990). 42 Dollard v. State, 2020 WL 2393353, at *2 (Del. May 11, 2020) (citing Miller v. State, 840 A.2d 1229, 1232 (Del. 2003)). 43 Def. Mot. at 4. 44 Id.

9 Trial Counsel denies Harper’s allegations. The evidence against Harper was

clear and overwhelming. As Trial Counsel explains:

Surveillance [video] within the victim’s home captured the incident in two different clips. The video shows the victim backed against a television in her home as she argues with Mr. Harper. Mr. Harper strikes the victim about her head/upper torso area causing her to fall to the ground. The victim sits up, appearing to be slightly stunned, but does not get up off the floor. Mr. Harper shoves the victim down onto her back and the attack resumes. Mr. Harper is on video, grabbing her neck area and striking her head area while the victim rolls around and struggles on the floor. Mr. Harper sits on top of the victim, with his back towards the camera, and appears to be grabbing her head/neck area and appears to strike her repeatedly. He stands up, the victim rolls over holding her face.45

Trial Counsel discussed the evidence and received Harper’s version of events,

including his belief that the victim exaggerated her injuries and engaged in

unprofessional conduct with her clients.46 Trial Counsel then investigated Harper’s

allegations but found them to be unsupported and, to the extent the victim’s

credibility could be called into question, “[v]ideo evidence shows that the incident

occurred, and medical records document her injuries” leaving “no basis for defense

to argue that the victim fabricated the incident solely to retaliate against Mr.

Harper.”47 Trial Counsel presented the results of her investigation to the State, and

45 Trial Counsel Aff. at 2. 46 Id. 47 Id. at 3.

10 “the State offered a reduced plea.”48 The decision to accept or reject the plea was

made by Mr. Harper.”49

Trial Counsel’s performance was objectively reasonable; she thoroughly

investigated each of Harper’s claims in the context of Harper’s version of the facts.

But, of course, the video evidence was overwhelming. At the conclusion of Trial

Counsel’s investigation, Harper knowingly, voluntarily, and intelligently chose to

accept the State’s plea offer.50 “Strickland does not require counsel to pursue every

line of investigation or require counsel to leave no stone unturned and no witness

unpursued.”51 “The duty to investigate requires only that investigatory decisions be

reasonable.”52 The Delaware Supreme Court has reasoned that “defense lawyers

have ‘limited’ time and resources’, and they must choose among ‘countless’ strategic

options.”53 While, as a general matter, “defense counsel [is] under no obligation to

exhaust every line of investigation,”54 Trial Counsel investigated Harper’s claims

48 Trial Counsel Aff. at 4. 49 Id. 50 D.I. 13 51 Cooke v. State 338 A.3d 418, 469 (Del. Super. 2023). 52 Id. 53 Id. (citing Dunn v. Reeves, 594 U.S. 731, 739, 141 S. Ct. (2021)) (quoting Harrington v. Richter, 562 U.S. 86, 106-107, 131 S. Ct. (2011)). 54 Id.

11 and provided him information allowing him to understand the weight of the evidence

against him.

Harper pled guilty. During his colloquy, he informed the Court that he was

“satisfied with [his] lawyer’s representation of [him], and that [his] lawyer [had]

fully advised [him] of [his] rights.”55 By pleading guilty, Harper waived any alleged

errors occurring before the entry of his plea.56 And, in any event, he has failed to

demonstrate deficient performance or prejudice on the part of Trial Counsel.

2. Trial Counsel did not force Harper to plead guilty.

Harper alleges Trial Counsel “advocated for defendant’s entry into a plea

agreement that was not in defendant’s best interest,” and asserts that “[t]he evidence

would have been sufficient to create reasonable doubt at trial, exonerating defendant

of all charges.”57 Trial Counsel denies this claim.

Trial Counsel explained that she “did not advocate for Harper to accept or

reject the plea.”58 Rather, she “met with Mr. Harper, in person, after investigating

his version of the events, and explained to Mr. Harper the evidence in [the] case and

the impact of his version of events, specifically that he provided nothing that

55 TIS Guilty Plea Form. 56 Dollard, 2020 WL 2393353, at *2 (citing Miller v. State, 840 A.2d 1229, 1232 (Del. 2003)). 57 Def. Mot at 3. 58 Trial Counsel Aff. at 5.

12 overcame the video evidence or that presented a viable legal defense.”59 Trial

Counsel also explained that “Harper was a four-time convicted felon, making him

eligible for sentencing under the habitual offender statute.”60 Nonetheless, Trial

Counsel convinced the State to not pursue habitual offender sentencing of Harper,

and to reduce or drop several charges pending against Harper.61 Harper informed

the Court at his plea colloquy that he “freely and voluntarily decided to plead guilty

to the charges listed on [his] written plea agreement,” that he had not “been promised

anything that is not stated in [his] written plea agreement,” and that neither Trial

Counsel, “the State, or anyone threatened or forced [him] to enter this plea.”62

Harper fails to offer any evidence supporting his claim. “[I]n the absence of

clear and convincing evidence to the contrary, [a defendant] is bound by the

statements he made during his plea colloquy.”63 “[A] defendant’s decision to plead

guilty as a means to avoid additional prison time does not amount to ‘coercion.’”64

Trial Counsel and the prosecutor truthfully telling the defendant he could receive

59 Trial Counsel Aff. at 5. 60 Id. 61 Id. 62 TIS Guilty Plea Form. 63 State v. Edwards, 2007 WL 4374237, at *1 (Del. Dec. 17, 2007) (citing Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 64 Edwards, 2007 WL 4374237, at *1 (citing Brady v. United States, 397 U.S. 742, 751-52 (1970)).

13 more incarceration if convicted of the indicted charges does not amount to

coercion.65 Harper’s second claim fails.

3. Trial Counsel’s decision not to object to evidence was professionally reasonable.

Harper alleges Trial Counsel “provided IAC to [him] because counsel

permitted the prosecutor to give the Court a photo of [the] alleged victim that

depicted said victim with contusions around both of her eyes,” injuries Harper

contends he did not cause.66 Trial Counsel responds that she “did not have a legal

basis to object to the evidence offered by the prosecutor at the time of the

sentencing.”67

“Judicial scrutiny of counsel’s performance is highly deferential.”68 “Courts

must indulge a strong presumption that counsel’s conduct falls within the wide range

of professional assistance,” and the burden falls upon the defendant to rebut this

“strong presumption.”69 A sentencing court has broad discretion in considering

information to determine an appropriate sentence.70 “However, a sentencing court

abuses its discretion if it sentences on the basis of inaccurate or unreliable

65 State v Starr, 2014 WL 6673914, at *5 (Del. Super. Ct. Oct. 29, 2014). 66 Def. Mot. at 5. 67 Trial Counsel Aff. at 6. 68 Cooke v. State, 338 A.3d 418, 455 (Del. 2025). 69 Id. 70 Mayes v. State, 604 A.2d 839, 842 (Del. 1992).

14 information.”71 Material offered for the Court’s consideration must bear “some

minimal indicum of reliability beyond mere allegation.”72

Here, Harper pled guilty, and, at sentencing, the State offered a photograph

purporting to depict the victim’s injury.73 The photograph bore a minimal indicum

of reliability and directly touched on an issue pertinent to Harper’s sentence – the

injury he inflicted to his victim. Trial Counsel reasonably concluded that she lacked

a legal basis to object. Her assessment was professionally reasonable. And, in any

event, Harper suffered no prejudice because the facts and circumstances of Harper’s

assault, in the absence of photographic evidence, supported the sentence imposed.

CONCLUSION

Trial Counsel provided Harper effective assistance of counsel. Trial Counsel

investigated Harper’s claims and found them to lack merit. And, video evidence

captured Harper’s attack upon the victim. Trial Counsel informed Harper of the

results of her investigation. So informed, Harper knowingly, intentionally, and

voluntarily accepted the State’s reduced plea offer. In response to the Court’s

questioning, Harper expressed his satisfaction with Trial Counsel’s representation

and confirmed that he was neither forced nor threatened to enter the plea. Then, at

71 Id. at 843. 72 Id. 73 D.I. 21 at 3.

15 sentencing, Trial Counsel properly refrained from objecting to photographic

evidence proffered by the State depicting the results of Harper’s attack. For the

reasons set forth herein, Harper’s Motion for Postconviction Relief is DENIED.

Sean P. Lugg, Judge

Original to Prothonotary

cc: Dominique Harper, pro se Ashley M. Callaway, Esq., Office of Defense Services Brianna Mills, Esq., Deputy Attorney General