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State v. Kennedy

Superior Court of Delaware

January 25, 2019

STATE OF DELAWARE
v.
DAMIRE L. KENNEDY Defendant.

          SUBMITTED: OCTOBER 9, 2018

          JOHN TAYLOR, DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, WILMINGTON, DELAWARE, ATTORNEY FOR THE STATE.

          DAMIRE L. KENNEDY, WILMINGTON, DELAWARE, PRO SE.

          COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POST CONVICTION RELIEF SHOULD BE DENIED

          THE HONORABLE KATHARINE L. MAYER JUDGE

         This 25th day of January, 2019, upon consideration of Defendant's Motion for Postconviction Relief and the record in this matter, the following is my Report and Recommendation.

         BACKGROUND. FACTS AND PROCEDURAL HISTORY

         On September 23, 2016, Wilmington Police began an investigation of a shooting that occurred that day at 27th Street and Church Street in Wilmington, Delaware. The State obtained video footage showing Damire Kennedy ("Defendant"), firing a gun both through his windshield and then again after having exited the car. The video shows Defendant shooting at three unidentified minors who were fleeing the area. Defendant had left his car at the scene and law enforcement found numerous personal items belonging to Defendant in the car. Defendant was indicted on the charges of Possession of a Firearm by a Person Prohibited ("PFBPP"), Possession of Ammunition by a Person Prohibited, six counts of Reckless Endangering First Degree, and six counts of Possession of a Firearm During the Commission of a Felony.

         On February 28, 2017, Defendant executed a Plea Agreement[1] and Truth-in-Sentencing Guilty Plea Form. Through these documents, Defendant agreed to plead guilty to one (1) count of PFBPP and two (2) counts of Reckless Endangering First Degree. The Plea Agreement specifically noted that the PFBPP charge related to "Two Prior Violent Felonies, 10 y m/m". In exchange, all other charges would be dismissed. Defendant represented he was freely and voluntarily choosing to plead guilty to the charges, he was not threatened or forced to enter the plea, and he was waiving certain constitutional rights including the right to a trial, to contest the State's evidence and offer his own witnesses, and to appeal if convicted. On May 11, 2017, after a pre-sentence investigation, Defendant was sentenced, collectively, to eleven (11) years of unsuspended Level V time, followed by decreasing levels of supervision.[2]

         On May 4, 2018, Defendant filed his first Motion for Postconviction relief.[3]Defendant's Motion argues three grounds for relief: (1) trial counsel was ineffective because he violated attorney-client privilege when he told the prosecutor that Defendant possessed a firearm; (2) trial counsel never argued that Defendant only had one prior felony, rather than two; and (3) trial counsel failed to investigate potential witnesses and evidence. The record was enlarged, trial counsel submitted an Affidavit in response, [4] the State filed a Response to Defendant's Amended Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61, [5] and Defendant filed a Final Response to State & Lawyers Response to Post Conviction Relief Criminal Rule 61.[6] The record is now complete and the following is my Report and Recommendation that Defendant's Motion should be DENIED.

         ANALYSIS OF DEFENDANT'S RULE 61 MOTION

         Before considering the merits of the claims, the Court must first determine whether there are any procedural bars to the motion.[7] This is Defendant's first motion for postconviction relief and it was timely filed pursuant to Superior Court Criminal Rule 61.[8] However pursuant to Super. Ct. Crim. R. 61(i)(3) any ground for relief that was not previously raised is deemed waived, unless the defendant establishes cause for relief and prejudice from a violation of his rights. Ineffective assistance of counsel claims cannot be raised at any earlier stage in the proceedings and are properly presented by way of a motion for postconviction relief.[9]

         Although titled differently, each of Defendant's claims appear to raise concerns of ineffective assistance of counsel. In order to prevail on an ineffective assistance of counsel claim, a defendant must show that his counsel's representation fell below an objective standard of reasonableness and the deficiencies in counsel's representation caused the defendant actual prejudice.[10] When a defendant has pleaded guilty, he must show that counsel's actions were so prejudicial that there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial.[11] Defendant must also overcome a strong presumption that counsel's conduct was reasonably professional under the circumstances.[12] Mere allegations of ineffectiveness will not suffice, rather, a defendant must make and substantiate concrete allegations of actual prejudice.[13] Great weight and deference are given to tactical decisions by the trial attorney and counsel cannot be deemed ineffective for failing to pursue motions that lack merit.[14]

          Defendant's first claim alleges trial counsel was ineffective because he violated attorney-client privilege when, prior to entry of the plea, he told the prosecutor that Defendant possessed a firearm. Both trial counsel and the State prosecutor deny this occurred. In support of his claim, Defendant references the Sentencing Hearing.[15] However, all of these statements took place after Defendant plead guilty to the charge of PFBPP and were said by trial counsel by way of mitigation evidence. To the extent Defendant implies trial counsel may have entered into plea negotiations with the State, any such discussions would not have been admissible against Defendant nor prejudicial to his case. Defendant cannot ignore the video footage that would have placed him in the car possessing and firing a firearm. In fact, at the Sentencing Hearing, Defendant accepted full responsibility for his actions and admitted he was "guilty for having a firearm."[16] In light of the above, Defendant has not met his burden of demonstrating an error by trial counsel or prejudice as a result of counsel's actions.

         Next, Defendant believes trial counsel should have argued that Defendant only had one prior felony, rather than two. One of Defendant's prior felony convictions was a non-violent felony under Federal Law. However, the State took the position that it was the equivalent of a violent felony under Delaware law.[17] Pursuant to 11 Del. C. ยง4215A the Court would need to determine whether, had the conviction been in Delaware, would it have qualified as a violent felony. Defendant having previously been convicted of Possession with Intent to Deliver Heroin, he was a person prohibited from possessing a firearm. Therefore, his second conviction, possession of a firearm by a person convicted of a ...


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