Lolley v. State

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

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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

11