            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                      IN AND FOR NEW CASTLE COUNTY




STATE OF DELAWARE,                             )
                                               )
                      Plaintiff,               )
                                               )
                                               )
       v.                                      )       Cr. ID. No. 89000046DI
                                               )
                                               )
MICHAEL A. FELICIANO,                          )
                                               )
                      Defendant.               )


                                   Decided: January 15, 2015
                                   (Corrected April 30, 2015)

        COMMISSIONER’S REPORT AND RECOMMENDATION THAT

        DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
                      SHOULD BE DENIED.
                            AND
  RULE 61 COUNSEL’S MOTION TO WITHDRAW SHOULD BE GRANTED


Delaware Department of Justice, 820 N. French St. 7th Floor, Department of Justice,
Wilmington, Delaware, 19801.

Andrew J. Witherell, Esquire, 100 E. 14th Street, Wilmington , Delaware 19801, Attorney
for Defendant.




MANNING, Commissioner
       This 15th day of January, 2015, upon consideration of Defendant’s Motion for

Postconviction Relief, the Court finds the following:

                                        FACTS

       According to the Affidavit of Probable Cause, Michael A. Feliciano

(“Defendant”) and his brother, Mark, lived with their parents at 6 Farnsworth Drive in

Newark, Delaware. At the time of the offense in December of 1988, their mother ran an

unlicensed in-home daycare at that address. On December 23, 1988, the first victim, a

three year old girl, spent the day at the daycare and was picked-up by her mother at

approximately 5:20 p.m. and taken home. Once home, the girl complained of pain when

she went to the bathroom and her mother noticed that her vagina was bleeding. The girl

was taken to a hospital were a doctor examined her and advised that there had been some

type of intrusion into the girl’s vagina and that there was evidence of tearing and

contusions as well. Upon interview by the police, the girl recounted how “Mike” told her

that they were going to play a game. She advised that Mike told her if she took her pants

off he would give her a lollipop. After she took her pants off, Mike got on top of her and

“hurt her.” When asked where Mike “hurt her” the girl pointed to her vagina. Police

subsequently located a shirt that Defendant indicated belonged to him that had two small

blood stains on the front shirt tail. Police showed the girl pictures of Defendant and his

brother Mark. The girl identified “Mike” as the one who hurt her and pointed to the

picture of Defendant.

       On December 31, 1988, a mother who had been using the same daycare for over a

year took her seven year old daughter to the hospital because she suspected that she had

been sexually assaulted. Police responded to the hospital and interviewed this second




                                            1
victim. This second girl recounted to police, in detail, how Mark Feliciano had sexually

assaulted her on the night of December 22, 1988, when she had spent the night. She

detailed how Mark had put his penis into her vagina and moved up and down and that it

was very painful. She stated that this had happened to her several times while she stayed

at the house and that Defendant had also done this to her on several occasions. The

second victim was unsure of the exact dates; however, her mother advised police that she

had been taking her daughter to the daycare since November of 1987.

                                  PROCEDURAL HISTORY

        Defendant was indicted on February 4, 1989, for three counts of Unlawful Sexual

Intercourse First Degree. On September 5, 1989, Defendant pled guilty to one amended

count of Unlawful Sexual Intercourse Second Degree. The remaining counts of the

indictment against Defendant were dropped in exchange. Defendant was represented by

counsel and was sentenced immediately to the statutorily mandated sentence of Life in

prison 1. Defendant did not appeal his conviction to the Delaware Supreme Court. In

June of 2001, and again in 2007, Defendant sought relief with the Board or Parole,

however, his requests were denied.

        Defendant filed a pro se Motion for Postconviction Relief (“Motion”) on July 11,

2013, pursuant to Superior Court Rule 61. 2 The Court subsequently appointed Defendant

counsel (“Rule 61 Counsel”) for his pro se Rule 61 Motion. On August 4, 2014, Rule 61

Counsel filed a Non-Merit Brief and Motion to Withdraw as Counsel under Rule




1
  In 1989 a Life sentence included the possibility of parole after serving 45 years at Level Five.
2
  It appears that Defendant may have filed a Rule 61 Motion on October 16, 1989, but it was rejected as
Non-Compliant by the Court the next day. There is no evidence in the docket that Defendant subsequently
re-filed his Motion until 2013.


                                                   2
61(e)(2). The State filed a Response on December 18, 2014. 3 As of this date, Defendant

has not filed a Reply to the State’s Reply Brief.

                              DEFENDANT’S RULE 61 MOTION

         Defendant’s claims for relief, in his own words, can be summarized as follows:

    (1) Trial Counsel was ineffective for failing to suppress pre-trial statements made to
        police,

    (2) Trial Counsel failed to properly investigate Defendant’s story,

    (3) Trial Counsel failed to adequately communicate with Defendant prior to the guilty
        plea,

    (4) Trial Counsel failed to make any effort to investigate or produce mitigating
        information about Defendant’s background,

    (5) Trial Counsel failed to locate and interview any of Defendant’s witnesses,

         All of Defendant’s arguments are procedurally barred and without merit. 4 Each

will be address below.


                                        LEGAL STANDARD

         To prevail on an ineffective assistance of counsel claim, a defendant must meet

the two-pronged Strickland test by showing that: (1) counsel performed at a level “below

an objective standard of reasonableness” and that, (2) the deficient performance

prejudiced the defense. 5 The first prong requires the defendant to show by a

preponderance of the evidence that defense counsel was not reasonably competent, while

the second prong requires the defendant to show that there is a reasonable probability




3
  Trial Counsel, Edmund M. Hillis, unfortunately, passed away on December 24, 2013.
4
  Defendant’s Motion is evaluated under Rule 61 as it existed on the date the Motion was originally filed.
5
  Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).


                                                     3
that, but for defense counsel’s unprofessional errors, the outcome of the proceedings

would have been different. 6

         When a court examines a claim of ineffective assistance of counsel, it may

address either prong first; where one prong is not met, the claim may be rejected without

contemplating the other prong. 7

         Mere allegations of ineffectiveness will not suffice; instead, a defendant must

make and substantiate concrete allegations of actual prejudice. 8 An error by defense

counsel, even if professionally unreasonable, does not warrant setting aside the judgment

of conviction if the error had no effect on the judgment. 9

         Although not insurmountable, the Strickland standard is highly demanding and

leads to a strong presumption that defense counsel’s conduct fell within a wide range of

reasonable professional assistance. 10           Moreover, there is a strong presumption that

defense counsel’s conduct constituted sound trial strategy. 11

         In considering post-trial attacks on counsel, Strickland cautions that trial

counsel’s performance should be reviewed from the defense counsel’s perspective at the

time decisions were being made. 12 It is all too easy for a court, examining counsel’s

defense after it has proved unsuccessful, to conclude that a particular act or omission of

counsel was unreasonable. 13 A fair assessment of attorney performance requires that




6
  Id.
7
  Id. at 697.
8
  Younger v. State, 580 A.2d 552, 556 (Del. 1990).
9
  Strickland, 466 U.S.at 691.
10
   Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. Oct. 31,
2008).
11
   Strickland at 466 U.S. 688-689.
12
   Id.
13
   Id


                                                     4
every effort be made to eliminate the distorting efforts of hindsight. Second guessing or

“Monday morning quarterbacking” should be avoided. 14

         The United States Supreme Court recognized that there are countless ways to

provide effective assistance in any given case. The United States Supreme Court

cautioned that reviewing courts must be mindful of the fact that unlike a later reviewing

court, trial counsel observed the relevant proceedings, knew of materials outside the

record, and interacted with his client, opposing counsel, and the judge. 15

         Even the best criminal defense attorneys would not defend a particular client in

the same way. Consequently, defense counsel must be given wide latitude in making

tactical decisions. 16 Counsel’s representation must be judged by the most deferential of

standards. There is a strong presumption that defense counsel’s conduct constituted

sound trial strategy. 17

                                         PROCEDURAL BARS

         Defendant’s claims are time-barred under Superior Court Rule 61(i)(1) because

his Motion was not filed within one year of the date the conviction became final. 18

Additionally, Defendant has not argued, nor established, that this Court lacked

jurisdiction or that there is a colorable claim that a miscarriage of justice occurred

because of constitutional violation, as required for relief under Rule 61(i)(5).

Notwithstanding these procedural bars, Defendant’s claims are without merit as discussed

below.

14
   Id.
15
   Harrington v. Richter, 131 S.Ct. 770, 787- 88 (2011).
16
   Id.
17
   Strickland, 466 U.S. at 689; Harrington v. Richter, 131 S.Ct. 770 (2011).
18
   Superior Court Rule 61(i)(1): Time Limitation. A motion for postconviction relief may not be filed more
than one year after the judgment of conviction is final or, if it asserts a retroactively applicable right that is
newly recognized after the judgment of conviction is final, more than one year after the right is first
recognized by the Supreme Court of Delaware or by the United States Supreme Court.


                                                        5
                                          GROUND ONE

        Defendant’s first claim is that Trial Counsel was ineffective for failing to move to

suppress statements made by him to police. 19

        A review of the Court’s docket and file reveals that indeed no suppression motion

was filed by Trial Counsel. It is unclear what specific statements Defendant made to

police that Trial Counsel could have moved to suppress; however, there appears to be two

possibilities.

        First, the Affidavit of Probable Cause, as previously noted, indicates that

Defendant, at some point in time, made a statement to police identifying a shirt that had

what appeared to be two drops of dried blood on it, as belonging to him. No DNA or

other forensic testing appears to have been conducted on the suspected blood drops.

Thus, the relevance, and in turn the admissibility at trial, of this shirt is unknown.

Assuming that the blood on the shirt could have been scientifically linked to one of the

victims, it would have been damning evidence for the State. However, as Defendant

entered into a guilty plea prior to trial, the record on this point was never fully developed

and the shirt’s admissibility never litigated.

        Second, in Defendant’s Motion he admits to making statements to police during a

lengthy interview, exactly what he said, however, is unknown at this time. During his

interrogation, Defendant claims that he invoked his right to counsel, yet the police

ignored his request and continued to press him until he confessed. Defendant states that



19
  At the outset, it is worth noting that Defendant waited over 24 years to file this Motion. While the
Court’s file and record is complete and intact, a full and complete picture of the litigation cannot be
established as Trial Counsel passed away during the extended delay. Thus, information known only to
Trial Counsel, such as strategy or conversations with opposing counsel that may not have been reduced to
writing, is unknown to the Court and lost forever.



                                                    6
“[he] never denied being the one at the house partying and drinking, but denied raping

any one.” Defendant argues that any statement he did make is “tainted” and presumably,

subject to suppression. In his Motion, Defendant never elaborates on what the police

claim he said, but from the gist of his argument the Court can fairly assume that

Defendant ultimately made incriminating statements during the interrogation. For the

sake of completeness and fairness to Defendant, the Court will assume that these are the

two statements Trial Counsel failed to suppress.

        Not only are Defendant’s claims time barred as previously noted, but this claim is

also procedurally barred under Rule 61(i)(3) because it was not asserted in the

proceedings leading to the judgment of conviction. Defendant does not present or argue

any cause for relief from the procedural default under Rule 61(i)(3)(A). Nevertheless, the

Court will examine the issue of prejudice under Rule 61(i)(3)(B).

        First, is it almost impossible for the Court to know, today, if such a suppression

motion stood any reasonable chance of success. Defendant’s Motion is little more that a

bare assertion of uncorroborated statements and conclusions. For this Court to hold that

Trial Counsel was ineffective, Defendant would have to prove a reasonable probability of

success on the merits of each suppression motion, and in turn, a reasonable probability

that the outcome of the case would have been different. 20 Even if Defendant’s statements

were suppressed, the State would still be in a position to present other testimonial and

physical evidence. Such other evidence would undoubtedly include the fact that one of

the victims was bleeding, and the shirt itself, possibly with the alleged victim’s blood on


20
  See Williams v. State, 12 A.3d 1155 (Table) (Del. 2011), 2011 WL 252948,*2, (Requiring a defendant in
the context of a Rule 61 motion to prove a reasonable probability of success on a motion to suppress to
prove prejudice from counsel’s deficient performance).



                                                   7
it. Moreover, the blood evidence was located in what could, at best, be characterized as

an unusual location, but also one at least consistent with where blood might be found

following the physical acts as described by one of the victims.

         As such, Defendant cannot meet his burden based on these facts, and therefore,

cannot establish the requisite prejudice under Rule 61(i)(3)(B) to overcome the issue of

procedural default. Even if this claim had been raised in a timely fashion, the Court is

not persuaded, based on the facts presented, that Trial Counsel was ineffective for failing

to move to suppress the statements at issue.



                                            GROUND TWO

         Defendant argues that Trial Counsel was ineffective because he failed to

“properly investigate [Defendant’s] (story).”

         It is unclear what “story” Defendant is referring to. In his Motion, Defendant

suggests the following factual scenario regarding the incident in question: “I was at a

part[y] when we were all drinking and doing a lot of drugs. Everyone was having a good

time and a girl came up to me and one thing led to another.” Defendant also states that

“God brought him” to prison and this has allowed him to “think and focus about where I

went wrong in my life by going down the wrong path.”

         Setting aside the fact that Defendant’s “story” is, to a certain extent, a tacit

admission of guilt, it is impossible for the Court to reconcile this statement with the facts

as set forth in the Affidavit of Probable Cause. Defendant’s claim appears to be nothing

more than a conclusory allegation unsupported by facts or argument. 21 Even if Trial


21
   Conclusory allegations are insufficient to establish a claim of ineffective assistance of counsel. Younger
v. State, 580 A.2d 552, 555 (Del.1990).


                                                      8
Counsel had followed-up on this information, it is unclear how Trial Counsel could have

used it to change the outcome of the case. As such, Defendant’s claim is both time

barred and meritless.



                                        GROUND THREE


         Defendant’s third claim is that Trial Counsel “failed to effectively communicate

with [him] prior to pre-trial, failed to keep him apprised, of the status of the case, and

never, visited [him] at J.T.V.C.C. and did not answer [his] letters of inquiring and the

like.”

         Due to the passing of Trial Counsel it is unknown what he would have to say in

response to these allegations. However, the transcript of the guilty plea and sentencing

colloquy paints a different picture.

         Trial Counsel advised the Court that he discussed the plea with the defendant on

the morning of the plea, and “consulting [Defendant] on three separate occasions.” Trial

Counsel also stated that he “did meet at [his] office with both [the defendant’s] wife and

mother on occasions too numerous for me to count now.” 22 Finally, Trial Counsel

represented to the Court the following:

         My discussions in the past with Mr. Feliciano included the discussion of the
         evidence the State would present, as I was aware pursuant to the Discovery rules,
         including statements made and provided to the State of Delaware. I discussed the
         evidence that would be brought if the matter proceeded to trial. I shared with him
         my opinion based on my experience as to what I thought about our defense if he
         went to trial, as I am aware based on discussion with him, and what I thought
         about the State’s case. It’s based on this background, based on discussion with
         Mr. Feliciano, that he is prepares to offer the Court the guilty plea as indicated in


22
  Undoubtedly hyperbole; but the point is made that Trial Counsel had discussed the case with Defendant’s
family a number of times, apparently in person.


                                                   9
           the guilty plea agreement. 23

           The transcript reveals that Defendant voiced no objection to anything Trial

Counsel said to the Court at that time, and then proceeded to enter his guilty plea. In the

absence of evidence otherwise, Defendant is bound by his answers on the guilty plea

form and his answers to the Court during the colloquy. 24

           Again, Defendant’s claim is nothing more than a conclusory allegation

unsupported by facts or argument as to how Trial Counsel’s alleged deficient

performance prejudiced him and changed the outcome of the case. As such, Defendant’s

claim is both time barred and meritless.



                                             GROUND FOUR

           Defendant next claims that Trial Counsel “failed to make any effort to produce /

investigate mitigating information about [his] background.”

           Due to the passing of Trial Counsel and the retirement of the prosecutor who

handled the case, the record is silent as to what, if any, mitigating evidence was discussed

prior to entry of the plea. However, once Defendant accepted the State’s plea offer, the

issue of mitigation became moot. The Court sentenced Defendant to the only possible

sentence—life in prison with the possibility of parole. No amount of mitigation

presented to the Court could have reduced the sentence; the judge simply had no

discretion. Defendant’s claim is conclusory, time-barred and meritless due to the

mandatory sentence he received.




23
     Guilty plea Transcript at 3–5.
24
     See Somerville v. State, 703 A.2d 629, 632 (Del. 1997) (citations omitted).


                                                       10
                                           GROUND FIVE

        Finally, Defendant claims that Trial Counsel “failed to investigate locate and

speak with any of the witnesses, particularly these two (2) witnesses that could have /

who were present during the 12-31-88 situation.” 25

        Presumably, Defendant is claiming that he wanted Trial Counsel to interview two

witnesses who would exculpate him of the crimes charged and that Trial Counsel failed

to do this, prejudicing his case. The first problem with Defendant’s argument is that he

fails to actually identify who these witnesses were, or elaborate on what they would have

testified to. The second, and perhaps bigger problem, is that Defendant concedes that

“pre-trial counsel may not have realized, prior to pre-trial that two witness [sic] could

have helped [him] encounter of the events. I assuming counsel was aware that there were

two witnesses that back-up [my] story. . . .”

                 Lacking concrete evidence of the existence of two witnesses who actually

could have exculpated Defendant, the Court finds Defendant’s claim specious at best.

Trial Counsel can hardly be found deficient for failing to interview, much less call as

witnesses at trial, people there is no clear evidence he even knew existed. As such,

Defendant’s claim is both time barred and meritless.




25
  On page 4 of Defendant’s Motion he states that he “had two (2) witnesses that could have testified about
his testimony of the event on 9/5/1989 which [he] requested counsel to have them testify.” The Court will
assume that Defendant is referencing one or both of the indicted incidents.


                                                    11
      For all of the foregoing reasons, Defendant’s Motion should be DENIED and

Rule 61 Counsel’s Motion to Withdraw should be GRANTED.

      IT IS SO RECOMMENDED.



                                                 /s/ Bradley V. Manning
                                                 BRADLEY V. MANNING,
                                                 Commissioner

oc:   Prothonotary
cc:   Defendant




                                        12
