IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

ID No. 1609020077
Cr. A. Nos. IN16-11-0384, etc.

V.

DAMIRE L. KENNEDY,
Defendant.

Submitted: January 28, 2019
Decided: March l, 2019

M
Upon Defendant, Damire L. Kennedy ’s, Motionfor Postconviction Relief
DENIED.

This lSt day of March, 2019, upon consideration of the Defendant
Damire L. Kennedy’s Pro Se Motion for Postconviction Relief (l).l. 20), the
Commissioner’s Report and Recommendation that Mr. Kennedy’s Pro Se Motion
for Postconviction Relief should be DENIED (D.I. 31),] and the record in this case,
it appears to the Court that:

(l) Damire L. Kennedy was indicted on November 7, 2016, for Possession
of a Firearm By a Person Prohibited (“PFABPP”), Reckless Endangering in the First

Degree (siX counts), Possession of a Firearm During the Commission of a Felony

 

' The Commissioner, finding that Mr. Kennedy’s request failed to meet the criteria of this
Court’s Criminal Rule 61(e), also denied his motion for appointment of postconviction counsel.
D.I. 30.

_1_

(six counts), and Criminal Mischief-Misdemeanor (four counts).2 Mr. Kennedy
pleaded guilty to the PFBPP charge and two of the reckless endangering counts.3 He
did so in exchange for dismissal of the remaining charges and the State’s agreement
that it Would cap its recommendation for unsuspended Level V time at ll years (the
first ten of Which are mandatory).4 On May ll, 2017, Mr. Kenney Was sentenced as
follows: PFBPP - l2 years and six months at Level V, suspended after ten years for
two years and six months at Level IV (DOC Discretion), suspended after six months
for two years at Level lll; Reckless Endangering First Degree (INl6-l l-0387) ~
three years at Level V, suspended after one year for two years at Level lll; and,
Reckless Endangering First Degree (lNlé-l l-0388) - three years at Level V,
suspended after one year for two years at Level III.5 Mr. Kennedy did not appeal his

convictions or sentence, but he did file a motion for sentence modification that Was

denied on September 27, 2017.6

 

2 Indictment, State v. Damire L. Kennedy, ID No. 1609020077 (Del. Super. Ct. Nov. 7, 2016)
(D.I. 1).

3 Plea Agreement and TIS Guilty Plea Form, State v. Damire L. Kennedy, ID No.
1609020077 (Del. Super. Ct. Feb. 28, 2017) (D.l. 15).

4 Id.

5 Sentence Order, State v. Damire L. Kennedy, ID No. 1609020077 (Del. Super. Ct. May ll,

2017) (D.l. l7).

6 D.I. 19

(2) In May 2018, Mr. Kennedy filed a timely pro se Motion for
Postconviction Relief pursuant to Superior Court Criminal Rule 61.7

(3) That motion Was referred to a Superior Court Commissioner in
accordance With 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for
proposed findings of fact, conclusions of law, and recommendations for its
disposition

(4) After affording Mr. Kennedy expansion of the record and supplemental
briefing, it became necessary to refer the matter to a successor commissioner.
Commissioner Katharine L. Mayer, Without delay, filed her Report and
Recommendation on January 25, 2019. The Commissioner recommended that
Mr. Kennedy’s Motion for Postconviction Relief be denied.8

(5) “Within ten days after filing of a Commissioner’s proposed findings of
fact and recommendations . . . any party may serve and file Written objections.”9
Neither Mr. Kennedy nor the State filed an “objection” to the Commissioner’s

Report pursuant to Criminal Rule 62(a)(5)(ii).

 

7 D.I. 20.

8 State v. Kennedy, 2019 WL 355718 (Del. Super. Ct. Jan. 25, 2019).

9 Super. Ct. Crim. R. 62(a)(5)(ii).

(6) The Court accepts, in whole, the findings of fact and recommendations
made by the Commissioner.'O There is no doubt, after a thorough review of the
record in this case, that Mr. Kennedy’s guilty plea was knowing, voluntary, and
intelligent. Nor is there any doubt that his counsel was wholly effective in
investigating Mr. Kennedy’s case, negotiating its resolution, assisting him while
entering his guilty plea, litigating the issues counsel had a good faith basis to believe
had merit, and advocating for Mr. Kennedy at his sentencing hearing.

(7) NOW THEREFORE, after careful and de novo review of the record
in this action, and for the reasons stated in the Commissioner’s Report and
Recommendation of January 25, 2019, Mr. Kennedy’s Motion for Postconviction
Relief is DENIE-I).

SO ORDERED this " of Marc , 019.

/QM/J

Paul R. Wallace, Judge
Original to Prothonotary

cc: Hon. Katharine L. Mayer
John S. Taylor, Deputy Attorney General
A. Dale Bowers, Esquire
Mr. Damire L. Kennedy, pro se

 

‘° Id. at 62(3)(5)(iv).

