State v. Dillard

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) I.D. No. 1411003111
) Cr. A. Nos. IN14-11-0961, etc.
KRISHAN D. DILLARD, )
Defendant. )

Submitted: August 22, 2024
Decided: October 29, 2024
Written Decision Withdrawn, Corrected, and Reissued: November 8, 2024

Upon Defendant Krishan D. Dillard’s
Motions for Correction of Sentence and for Sentence Reduction,
DENIED.

ORDER

This 8th day of November, 2024, upon consideration of Defendant

Krishan D. Dillard’s Motion for Correction of an Illegal Sentence (D.I. 95),

Motion for Reduction of Sentence (D.I. 96), the State’s responses to those

motions (D.I. 97 and 99), and the record in this matter, it appears to the Court

that:

FACTUAL AND PROCEDURAL BACKGROUND1

(1) In January 2015, a grand jury indicted Defendant Krishan D.

1
The relevant factual and procedural background of Mr. Dillard’s crimes and
prosecution have been recounted in two of this Court’s prior decisions and is taken almost
verbatim therefrom without repetition of all of their internal citations. See D.I. 66 (order
denying Mr. Dillard’s first motion to reduce sentence); State v. Dillard, 2019 WL 118437,
at *1-2 (Del. Super. Ct. Jan. 4, 2019) (order denying postconviction relief).
Dillard for attempted murder first degree, first-degree assault, two counts of

home invasion, two counts of second-degree burglary, three counts of felony

reckless endangering, endangering the welfare of a child, nine related counts

of possession of a deadly weapon during the commission of a felony

(PDWDCF), and possession of a deadly weapon by a person prohibited.

(2) These multiple offenses arose from an attack that occurred on

November 6, 2014. Early that morning, Mr. Dillard illegally entered an “on-

again, off-again” girlfriend J.B-J.’s apartment. He carried with him a box of

blue latex medical gloves. He donned a pair and armed himself with a kitchen

knife. Mr. Dillard then went to J.B-J.’s bedroom and attacked her while she

slept. J.B-J. woke with Mr. Dillard on top of her. Mr. Dillard first stabbed

her in the stomach then sliced her throat. J.B-J.’s 17-year-old sister, M.S.,

was in an adjoining bedroom and was awoken by J.B-J.’s screams as J.B-J.

struggled and fought off Mr. Dillard. Mr. Dillard continued stabbing and

slashing. M.S. went to her sister’s aid and Mr. Dillard turned his attention to

her. After stabbing and slashing M.S., Mr. Dillard tucked the knife in his

pocket and fled the apartment. As a result of Mr. Dillard’s attack, J.B-J.

underwent emergency surgical repair of her liver, pancreas, neck and

shoulder; she lost her gall bladder; and she suffered numerous other less-

serious injuries. M.S. was stabbed and slashed in the leg; her wounds required

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suturing.

(3) Both J.B-J. and M.S. positively identified Mr. Dillard as their

attacker. He was arrested six days later in Maryland.

(4) At final case review, Mr. Dillard pleaded guilty to attempted

first-degree murder, second-degree assault, felony reckless endangering, and

PDWDCF. He did so in exchange for dismissal of the remaining charges in

this indictment, dismissal of the charges from a second unrelated indictment,

and the State’s favorable sentencing recommendation.

(5) Mr. Dillard’s sentencing occurred several months later on

July 22, 2016, after a pre-sentence investigative report was prepared. He was

sentenced: (a) for attempted murder—to 25 years at Level V, suspended after

he serves 20 years imprisonment, for decreasing levels of supervision with

certain treatment conditions; (b) for assault second degree—to eight years at

Level V (to which 11 Del. C. § 4214 was applied); (c) for PDWDCF—to five

years at Level V; and (d) for reckless endangering—to five years at Level V

suspended in its entirety for a concurrent probated term.2

(6) Mr. Dillard’s 33-year period of unsuspended imprisonment is

comprised, in part, of three separate minimum terms of incarceration that must

2
D.I. 62 (modified sentencing order issued to reflect the earlier effective date agreed
upon by the parties).

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be imposed under a combination of Delaware’s attempted first-degree murder,

second-degree assault (with a habitual-criminal enhancement), and PDWDCF

statutes; those three separate minimum terms as applied in the peculiar

circumstances of Mr. Dillard’s case, total 21 years.3 The remaining 12 years

the Court imposed as an exercise of its own sentencing judgment.

(7) Mr. Dillard filed no direct appeal from his conviction or

sentence.4 But he earlier docketed a pro se motion under Superior Court

Criminal Rule 35(b) requesting reduction of his prison term.5 That application

was considered on its merits and denied.6

MR. DILLARD’S RULE 35(a) MOTION (D.I. 95)

(8) In Mr. Dillard’s view, his sentence is “illegal” and in need of

3
See DEL. CODE ANN. tit. 11, §§ 636, 531, and 4205(b)(1) (2014) (attempted first-degree
murder is a class A felony carrying a statutory minimum of 15 years at Level V); id. at
§§ 1447 and 4205(b)(2) (PDWDCF is a class B felony carrying a statutory minimum of
2 years at Level V); id. at §§ 612(d), 4201(c) and 4205(b)(4) (assault second degree is a
class D violent felony with a statutory maximum of eight years imprisonment); see also
DEL. CODE ANN. tit. 11, § 4214(b) (2016) (providing under the then-recently-revised
habitual-criminal sentencing provisions that one who had been thrice previously convicted
of felonies and is thereafter convicted of a Title 11 violent felony must receive a minimum
sentence of not less than one-half of the statutory maximum penalty otherwise provided
for the triggering Title 11 violent felony that forms the basis of the State’s habitual criminal
petition). The State had sought, and the Court applied, a §4214 enhancement only to the
second-degree assault count.
4
Though he did later unsuccessfully seek postconviction relief through this Court’s
Criminal Rule 61. State v. Dillard, 2019 WL 118437 (Del. Super. Ct. Jan. 4, 2019)
(denying Mr. Dillard’s first timely Rule 61 motion on its merits).
5
D.I. 63.
6
D.I. 66.

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correction because the Court should have sentenced him to a minimum term

of four years of imprisonment for the second-degree assault conviction that

was enhanced by application of the then-very-recently amended version of the

Habitual Criminal Act that was in effect on the date of his sentencing rather

than the prior version in effect at the time of his crimes and plea.

(9) Criminal Rule 35(a) permits this Court to correct an illegal

sentence “at any time.”7 Relief under Rule 35(a) is available when, inter alia,

the sentence imposed: exceeds the statutorily-authorized limits; omits a term

required to be imposed by statute; is uncertain as to its substance, or is a

sentence that the judgment of conviction did not authorize.8 “Relief may be

warranted under Rule 35(a) to correct a court’s possible misimposition of non-

suspended imprisonment as a minimum-mandatory term in a sentence.”9

(10) Mr. Dillard is somewhat misguided on both the law and the facts

he argues in his Rule 35(a) motion. His complaint stems from his

misapprehension of which version of the Habitual Criminal Act—old or

7
Super. Ct. Crim. R. 35(a) (“Correction of sentence. -- The court may correct an illegal
sentence at any time . . .”).
8
Brittingham v. State, 705 A.2d 577, 578 (Del. 1998).
9
State v. Palmer, 2022 WL 16641898, at *7 (Del. Super. Ct. Sept. 27, 2022) (citing
Jones v. State, 2021 WL 4098967, at *2 (Del. Sept. 8, 2021) (noting that relief in the form
of resentencing may be warranted to correct a court’s mistaken imposition of non-
suspended imprisonment as a minimum-mandatory term to a sentence when such minimum
term did not in fact apply)).

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new—should be applied to his sentence and which version actually was

applied to his sentence.10

(11) Mr. Dillard committed his crimes in November of 2014.

He entered his plea in November of 2015. And he was sentenced on July 22,

2016.

(12) Three days prior to Mr. Dillard’s sentencing, substantive

revisions to Delaware’s Habitual Criminal Act were enacted.11 So, at

Mr. Dillard’s sentencing the parties and Court discussed the applicability of

the then-brand-new habitual-criminal sentencing provisions.12 The parties

and Court agreed to the application of the new provisions to the only

conviction for which the State sought habitual-criminal sentencing: the

second-degree assault count.13 This benefitted Mr. Dillard by allowing his

attorney to argue that the Court could sentence him to as little as 21 years

because the minimum sentence applicable to the felony assault conviction

would be four instead of eight years. Mr. Dillard is simply mistaken that

10
See, e.g. D.I. 63 (“I [am] asking if my sentence[] could be reduced to the 25 years
which is the minimum of this case.”); D.I. 95 (demonstrating that he believes the Court
imposed 25 of the 33-year term of imprisonment as a minimum mandatory).
11
80 DEL. LAWS Ch. 321 (eff. July 19, 2016).
12
Sentencing Hrg. Tr. 3-6. (D.I. 85).
13
Id.

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benefit was one due to him by law.

(13) The sentencing provisions in effect at the time that a criminal act

is committed are those applied when imposing a sentence for that act.

Delaware courts need apply intervening ameliorative changes of sentencing

statutes only when the General Assembly expressly provides for their

retroactive application.14 Our Supreme Court has now expressly applied this

principle when speaking to the 2016 changes to the Habitual Criminal Act.15

(14) So, while not required by (and perhaps even an error of) law, this

Court has since explained why such applications occurred at the nascent point

when the parties and Court were reckoning with the handful of cases effected

by what was, and remains, a truly unique statutory revision:16

[S]uch agreements were permitted for just that small universe of
habitual criminal cases pending disposition when the 2016
revisions to Delaware’s Habitual Criminal Act were first
enacted. They were permitted for two reasons: (1) for the
defendant, the potential resulting sentence was always either the
same or better than the law in effect when the then-pending case

14
See Fountain v. State, 139 A.3d 837, 842-43 (Del. 2016) (Statutory revisions allowing
for concurrent sentences in some circumstances do not apply to defendants whose crimes
occurred before those changes because General Assembly did not expressly provide for
their retroactive application.); State v. Thomas, 220 A.3d 257, 263-64 (Del. Super. Ct.
2019) (same).
15
Garrett v. State, 2022 WL 1639226, at *2 (Del. May 23, 2022) (citing Wright v. State,
2022 WL 499979, at *3 & n.14 (Del. Feb. 17, 2022) (the version of the habitual-offender
statute that applies is the one in effect at the time that the defendant committed the offense
for which he is being sentenced).
16
See State v. Heath, 2022 WL 16557804, at *2 (Del. Super. Ct. Oct. 31, 2022) (explaining
the singular nature of the sentence review provisions of the revised Habitual Criminal Act).

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started; and (2) application of the old law might foster needless
review under new § 4214(f)—relief under which was application
of the new habitual criminal provisions.17

(15) The Court made it clear that it was sentencing Mr. Dillard with

the lesser habitual enhancement in mind as the potential minimum in his

case.18 Unfortunately for Mr. Dillard, the Court didn’t find his felony assault

to be one for which a minimum term should be imposed.19 Rather, the Court

found that even if Mr. Dillard’s status as a statutory habitual criminal wasn’t

factored in at all, the imposition of eight years of imprisonment for his knife

attack on M.S.—a “young woman who was doing nothing more [than] trying

to save her sister’s life”—was appropriate.20

(16) Mr. Dillard is not serving an illegal sentence. So, he is due no

relief under this Court’s Criminal Rule 35(a) and that motion is DENIED.21

17
State v. Daniels, 2022 WL 2733509, at *1 n.9 (Del. Super. Ct. July 13, 2022), aff’d,
2023 WL 176964 (Del. Jan. 12, 2023) (citing Mr. Dillard’s case as an example).
18
Sentencing Hrg. Tr. 6, 34-35.
19
Id. at 34-35.
20
Id.
21
All that said, the Court recognizes that clarification in Mr. Dillard’s sentencing order
to denote the specific version and provision of the Habitual Criminal Act that was applied
to his second-degree assault conviction is appropriate. The Court will issue a modified
sentencing order herewith.

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MR. DILLARD’S RULE 35(b) MOTION (D.I. 96)22

(17) Mr. Dillard also docketed a simultaneous motion under Superior

Court Criminal Rule 35(b)23 requesting reduction of his prison term either

now or once he demonstrates rehabilitation.24

(18) When considering motions for sentence reduction, “this Court

addresses any applicable procedural bars before turning to the merits.”25

Mr. Dillard previously filed a Rule 35(b) motion requesting reduction of the

33-year unsuspended portion of his Level V term or that “[i]f [his] sentence[]

can’t be modified or reduced can [he] be put under review after a sum of [his]

time.”26 That first and timely motion was considered on its merits and

denied.27

(19) He has now docketed another application asking for the same

relief. Again, when considering a Rule 35(b) motion the Court must first

22
Mr. Dillard used the same cover page and title for his two distinct motions that were
filed in a single package. See D.I. 98 (explaining Mr. Dillard’s filings).
23
Super. Ct. Crim. R. 35(b) (providing that, under certain conditions, the Court may
reduce a sentence of imprisonment on an inmate’s motion); Jones v. State, 2003 WL
21210348, at *1 (Del. May 22, 2003) (“There is no separate procedure, other than that
which is provided under Superior Court Criminal Rule 35, to reduce or modify a
sentence.”).
24
Rule 35(b) Motion 1-2.
25
State v. Redden, 111 A.3d 602, 606 (Del. Super. Ct. 2015).
26
D.I. 63.
27
D.I. 66.

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address any applicable procedural bars.28 Only if the movant clears those

hurdles, may the Court consider the merits of his reduction or modification

request.29

(20) Mr. Dillard attempts to address Rule 35(b)’s time bar. But he

says nothing of the fact that this is his second request for the same sentence-

reduction relief. The Court must.30

(21) As our Supreme Court and this Court have consistently held,

Rule 35(b) prohibits consideration of repetitive requests for sentence

reduction or modification.31 There is no exception to the repetitive-motion

bar.32 “And a motion is repetitive under Rule 35(b) whenever it is preceded

by an earlier Rule 35(b) motion, even if the subsequent motion raises new

arguments or suggests somewhat different relief.”33

28
See State v. Brown, 2022 WL 14781911, at *1 (Del. Super. Ct. Oct. 26, 2022), aff’d,
2023 WL 1808446 (Del. Feb. 7, 2023) (““When addressing any species of sentencing
reduction or modification request, the Court first identifies the specific
procedural mechanism the inmate attempts to invoke; it must then determine whether
that mechanism is available under the circumstances.”) (cleaned up).
29
Redden, 111 A.3d at 606.
30
State v. Reed, 2014 WL 7148921, at *2 (Del. Super. Ct. Dec. 16, 2014); State v. Culp,
152 A.3d 141, 145-47 (Del. 2016) (instructing that this Court cannot ignore the Rule 35’s
plain language, its procedural bars and requirements, or established precedent interpreting
the rule).
31
Culp, 152 A.3d at 145; Redden, 111 A.3d at 608–09.
32
Culp, 152 A.3d at 144; Redden, 111 A.3d 608–09.
33
State v. Wenzke, 2023 WL 3676894, at *4 (Del Super. Ct. May 25, 2023) (cleaned up)
(citing Culp, 152 A.3d at 144).

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(22) Accordingly, the Court must DENY Mr. Dillard’s second

Rule 35(b) application for sentence reduction because it is repetitive and again

seeks a form of relief not available under that rule or applicable Delaware

law.34

SO ORDERED this 8th day of November, 2024.

/s/ Paul R. Wallace

Paul R. Wallace, Judge

Original to Prothonotary

cc: Mr. Krishan D. Dillard, pro se
Anna M. Hadlock, Deputy Attorney General
Renee L. Hrivnak, Deputy Attorney General
Cari A. Chapman, Deputy Attorney General
Investigative Services Office

34
See id. (a sentence-reduction movant can’t “‘ask[] the Court to monitor his sentence
and release him upon some future potential happening’—or put another way, ‘to engage in
a form of judicial parole’ . . . [t]hat exercise is not sanctioned by Rule 35(b) . . . nor any
other of this Court’s rules of criminal procedure”). As the Court explained recently in a
similar case, the only avenue for the relief Mr. Dillard seeks—reduction of his prison
term—on the grounds he raises— rehabilitative efforts—is an application brought at the
proper time and with the proper support by the Department of Correction under 11 Del. C.
§ 4217 or via some form of executive clemency. See State v. Chambers, 2024 WL
3792416, at *3 n.22 (Del. Super. Ct. Aug. 13, 2024).

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