IN' THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE

V. ID N0.1609020077

DAMIRE L. KENNEDY
Defendant.

Submitted: October 9, 2018
Decided: January 25, 2019

COMMISSIONER’S REPORT AND RECOMMENDATION

THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE DENIED

John Taylor, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State.

Damire L. Kennedy, Wilmington, Delaware, pro se.

MAYER, Comrnissioner

This 25th day of J anuary, 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' and Truth-in-
Sentencing Guilty Plea Form. Through these documents, Defendant agreed to plead
guilty to one (l) count of PFBPP and two (2) counts of Reckless Endangering First

Degree. The Plea Agreement specifically noted that the PFBPP charge related to

 

l D.I. # 15.

“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
ll, 2017, after a pre-sentence investigation, Defendant was sentenced, collectively,
to eleven (l l) 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: (l) trial counsel was ineffective
because he violated attorney-client privilege when he told the prosecutor that
Defendant possessed a firearrn; (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

 

2 D.I. # l7.
3 D.I. # 20.
4 D.I. # 24.

5 D.I. # 26.

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

 

6 D.I. # 28.
7 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

8 The procedural bar of Super. Ct. Crim. R. 61(i)(4) barring claims that were
formerly adjudicated is also not applicable.

9 Whl`ttle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan-
Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016).

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.ll Defendant must also
overcome a strong presumption that counsel’s conduct was reasonably professional
under the circumstances12 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

 

10 Strickland v. Washz`ngton, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State,
757 A.2d 1278 (Del. 2000).

" State v. Hess, 2014 WL 6677714, at * 6 (Del. Super., Nov. 20, 2014) (citations
omitted).

12 sze v. Wrighr, 653 A.2d 288, 293-94 (Dei. 1994) (citarions omitted).
'3 YOunger v. S¢are, 580 A.2d 552, 556 (Del. 1990).

14 State v. ]\/Iz`ller, 2013 WL 871320, at *4 (Del. Super., Feb. 26, 2013).

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

 

15 Defendant refers to the Sentencing Transcript dated May 11, 2017, page 9 at
lines 15-25; page 10 at line 1; and page 11 at lines 20-23.

16 Sentencing Transcript at p. 14.

the position that it was the equivalent of a Violent felony under Delaware law.17
Pursuant to 11 D_el. § §4215A 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 crime, would have
been classified as violent under 11 D_el. Q. §4201(0).18 Defendant cites State v.
Capers,19 which actually supports the State’s position. In Capers, the Court held:

in the context of a person prohibited sentencing, the

provision of 11 D. Q. §4201(0) defining “violent

felonies” was intended to include offenses in other

jurisdictions that prohibited the same behavior as “violent

felonies” in Delaware regardless whether the foreign
jurisdiction designated the behavior “violent” or not.Z°

 

17 Section 4215(A) provides that a defendant may be liable for the greater
punishment if the previous conviction was for “an offense specified in the laws of
this State or for an offense which is the same as, or equivalent to, such offense as the
same existed and was defined under the laws of this State existing at the time of such

conviction.”

18 Under 11 D_el. Q. §4201(0), Possession of a Deadly Weapon by Persons
Prohibited (Firearm or Destructive Weapon Purchased, Owned, Possessed or
Controlled by a Violent Felon), is a violent felony.

19 2015 WL 7301890 (Del. Super., Nov. 17, 2015).

20 Ia’. at *1, citing 11 Del. Q. §1448(€)(3).
7

Capers is factually inapposite as well. At the time Capers tendered his guilty
plea, it was to “either” 5 years or 10 years, dependent on the nature and timing of
second conviction. Defendant overlooks the fact that at the time he signed the Plea
Agreement, he acknowledged that the PFBPP charge was related to two prior violent
felonies and carried a minimum mandatory of ten (10) years. As part of the Plea
Agreement, the State was entitled to hold Defendant to his stipulations Trial
counsel cannot be deemed ineffective for failing to pursue strategies that held no
merit.2l Defendant has also not established prejudice as a result. Defendant agreed
that the State would recommend a total of eleven (1 1) years of Level V incarceration
and that the minimum mandatory for the PFBPP charge was ten (10) years.
Defendant was sentenced consistent with that agreement and cannot now claim he
was prejudiced as a result of the deal he made.

Finally, Defendant argues trial counsel failed to investigate potential

witnesses and evidence.22 According to the Affidavit, trial counsel went to the scene

 

21 Of note, the Exhibit 1 attached to Defendant’s Final Response demonstrates trial
counsel consulted with Defendant about the violent felony classification The letter
then states “After discussion [of] the potential impact [sic] the possibility of raising
this argument could have on the Plea Agreement and the limited likelihood of
success, you agreed that I would not address the matter during sentencing unless the
Court or the State brought it up.”

22 Defendant also argues that trial counsel was unaware that the State’s witness had
relocated and that the vehicle had been destroyed. At the Sentencing Hearing, the
State indicated a witness had relocated, but there was no representation that the
witness refused to testify. Other than the Defendant’s blanket statement about the

8

in search of witnesses and video footage and interviewed potential witnesses but
none would provide personal information or otherwise cooperate. Trial counsel
reviewed the State’s discovery including photographs of the area, the vehicle and
various videos from different locations. Trial counsel then attempted to develop a
strategy of self-defense but correctly surmised that to do so would require placing a
firearm with the Defendant. Therefore, rather than proceeding to trial and risk a
conviction on all charges, Defendant accepted a plea and used the self-defense angle
as mitigation evidence.

Even if Defendant feels trial counsel could have done more, he waived his
right to contest the evidence against him when he entered the plea. Defendant
acknowledged that he freely and voluntarily decided to plead guilty and that he
willingly waived certain constitutional rights including the right to a trial, to contest
the State’s evidence and offer his own witnesses. A defendant is bound by his
answers on the plea form and by his testimony at the plea colloquy in the absence of
clear and convincing evidence to the contrary.23 Based on the foregoing, Defendant

waived his right to challenge any alleged errors, deficiencies or defects occurring

 

car, there was nothing further in the record indicating the vehicle was destroyed or
how that prejudiced his case.

23 State v. Hara’en, 1998 WL 735879, *5 (Del. Super. Jan. 13, 1998) (internal
citations omitted); State v. Stucm‘, 2008 WL 4868658, at *3 (Del. Super. Oct. 7,
2008) (internal citations omitted).

prior to the entry of his plea, even those of constitutional proportions and he cannot

do so now.24

For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief

should be DENIED.

IT IS SO RECOMMENDED.

__ ._ ..__`
_r q

/"

The onorable Katharine L. Mayer 1 `
Original to Prothonotary

cc: John Taylor, Esquire, Deputy Attorney General
A. Dale Bowers, II, Esquire
Damire L. Kennedy

 

 

24 Somer'vl'lle v. State, 703 A.2d 629, 632 (Del. 1997); Moaj'ica v. State, 2009 WL
2426675 (Del. 2009); Mz`ller v. State, 840 A.2d 1229, 1232 (Del. 2004).

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