State v. Terry

• Court: Superior Court of Delaware
• Decided: July 12, 2017
• Docket: 1507014451
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) ) V. ) ) KENNARD TERRY, ) Cr. A. NO. 1507014451 ) Defendant. ) ) )

Date Decided: July lZ, 2017 On Defendant Kennard Terry’s Motion for Post Conviction Relief. DENIED.

M

l. Defendant Kennard Terry had a jury trial in this Court from July 26, 2016 to July 27, 2016.

2. Defendant was convicted guilty of Assault Z"d , Possession Of a Deadly Weapon During the Commission of a Felony, and Possession of a Deadly Weapon by a Person Prohibited.

3. Defendant Was Sentenced on October l4, 2016, and filed this Motion for

Post Conviction Relief on April 18, 2017.

4. The Court must address Defendant’s motion in regard to Rule 6l(i) procedural requirements before assessing the merits of his motion.l

5. Rule 61(i)(l) bars motions for postconviction relief if the motion is filed more than one year from final judgment Defendant’s Motion is not time barred by Rule 6l(i)(l).

6. Rule 6l(i)(2)2 bars successive postconviction motions, Which is also not applicable as this is Defendant’s first postconviction motion.

7. Rule 6l(i)(3) bars relief if the motion includes claims not asserted in the proceedings leading to the final judgment3

8. Finally, Rule 6l(i)(4) bars relief if the motion is based on a formally adjudicated ground.4

9. Defendant’s Motion for Post Conviction Relief is barred by Rule 6l(i)(4). Ground two of Defendant’s Motion asserts “inconsistent statements” as a ground for relief. Defendant states: “During my trial on 7-26-16 to 7-27- 16 the victim Pete Freemon Was caught in lies on the stand. He lied about not being under the influence and his reason Why l allege[d]ly attack[ed]

him.

‘ super. Ct. Crim. R. ei(i)(i). 2 super Ct. Crim. R. 61(1)(2). 3 super. Ct. Crim. R. 6i(i)(3). 4 super. Ct. Crim. R. 6i(i)(4).

lO. The fact finder determines the credibility of witnesses at tiial. A jury found Defendant guilty on July 27, 2016, and the jury had the opportunity to assess the credibility of the witnesses before them. Thus, Defendant is not entitled to relief under Rule 61 under this theory.

ll. Additionally, Ground One of Defendant’s Motion is “Mental Health History,” stating that he has been “mentally impaired since 1996 and been receiving treatment from the Veterans Affair Medical Center.” This is not a proper ground for relief under Rule 61.

12. Accordingly, for the reasons stated above, Defendant’s Motion for

Postconviction Relief is summarily dismissed.

IT IS SO ORDERED. '%//2

The Honorable Calvin L. Scott, Jr.