          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE                                  :        ID No. 1706010844
                                                   :        In and for Kent County
          v.                                       :
                                                   :        RK17-07-0360-01
DEREK S. KUNITZ,                                   :        Rape 2nd WO Con (F)
                                                   :
                  Defendant.                       :

                                               ORDER

                                   Submitted: October 25, 2019
                                   Decided: November 21, 2019

          On this 21st day of November 2019, after considering Derek Kunitz’s motion for
postconviction relief, the Commissioner’s Report and Recommendation, the State’s
response, and the record in this case, it appears that:
          1. On December 13, 2017, Mr. Kunitz pled guilty to one count of Rape in the
Second Degree Without Consent, in violation of 11 Del. C. § 772.
          2. As part of the plea agreement, the State and the defense agreed to recommend
a sentence of twenty-five years incarceration suspended after fifteen years, followed
by probation. The Court followed the sentence recommendation and sentenced Mr.
Kunitz accordingly.
          3. Mr. Kunitz did not appeal his conviction or sentence to the Delaware
Supreme Court. Instead, he filed this motion for postconviction relief pursuant to
Superior Court Criminal Rule 61. He alleges, in part, ineffective assistance of counsel.
He also alleges that his plea was not knowing and voluntary. Finally, he alleges that
the count in the indictment alleging the charge to which he pled was “faulty” because
it did not properly allege the elements of the offense. He also alleges that the
indictment was void because the grand jury foreperson did not sign the indictment.1

1
    In fact, the foreperson and secretary of the grand jury both signed the indictment.
       4. In her September 11, 2019 Report and Recommendation, the Commissioner
fully and correctly addressed Mr. Kunitz’s arguments. She found them to be without
merit and recommended that the Court deny his motion. Mr. Kunitz did not file
exceptions to her Report.
      NOW, THEREFORE, after a de novo review of the record in this matter, for
the reasons stated in the Commissioner’s Report and Recommendation dated September
11, 2019;
      IT IS HEREBY ORDERED that the Commissioner’s Report and
Recommendation attached as Exhibit “A”, is adopted by the Court in its entirety. Mr.
Kunitz’s motion for postconviction relief pursuant to Superior Court Criminal Rule 61
is therefore DENIED.


                                                         /s/Jeffrey J Clark
                                                                 Judge




                                         2
Exhibit A




    3
       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE                       )       ID No. 1706010844
                                        )       In and for Kent County
      v.                                )
                                        )       RK17-07-0360-01
DEREK S. KUNITZ,                        )       Rape 2nd WO Con (F)
                                        )
             Defendant.                 )


           COMMISSIONER'S REPORT AND RECOMMENDATION

                Upon Defendant's Motion for Postconviction Relief
                  Pursuant to Superior Court Criminal Rule 61



Kathleen A. Dickerson, Esq., Deputy Attorney General, Department of Justice, for the
State of Delaware.

Derek S. Kunitz, pro se.


FREUD, Commissioner
September 11, 2019

      The defendant, Derek S. Kunitz (“Kunitz”), pled guilty on December 13, 2017,
as charged, to one count of Rape in the Second Degree Without Consent, 11 Del. C. §
772. As part of the plea deal the State and the defense agreed upon a recommended
sentence of twenty-five years incarceration suspended after serving fifteen years, ten of
which were minimum mandatory followed by probation. The Court agreed with the
sentence recommendation and sentenced Kunitz accordingly. Had Kunitz gone to trial
and been found guilty as charged he faced twenty-five years in prison. Kunitz did not

                                            4
appeal his conviction or sentence to the State Supreme Court. Instead, Kunitz filed the
pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61
on December 3, 2018 in which he alleges, in part, ineffective assistance of counsel.
                                       FACTS
      The following are the facts as outlined by the State in their reply to Kunitz’s
motion and documented by accompanying exhibits including the police report and a
psychiatric evaluation of the victim attached to the State’s Reply.
             The defendant was arrested on June 30, 2017, and
             subsequently charged by indictment with Rape Second
             Degree, a violation of 11 Del. C. § 772. The crime occurred
             while the defendant was staying with his ex-girlfriend and
             [name redacted] (the “victim”), his ex-girlfriend’s profoundly
             disabled 28-year old daughter, at their house in [Kent
             County], Delaware (Exhibit “A”). The defendant’s ex-
             girlfriend reported to the police that on the morning of March
             4, 2017, she rushed into her living room after she thought she
             heard her daughter choking. When she entered the room, she
             witnessed the victim sitting on the ground performing fellatio
             on the defendant, who was seated in a chair. The defendant
             quickly pulled up his pajama pants and told his ex-girlfriend
             that this was “the first time it happened.” When his ex-
             girlfriend demanded that the defendant leave her house, he
             stated, “I made one mistake and you’re going to throw me
             out?”

             Trooper Murphy of the Delaware State Police was the first
             responding officer. He noted that the victim could not be
             interviewed due to her disability. While the trooper was at
             the residence, the victim made “delusional” and
             “nonsensical” statements. Her mother reported that the
             victim had difficulty discerning truth from reality. Later
             Detective Dan Blomquist of Delaware State Police’s Criminal
             Investigations Unit was assigned to investigate the case. He
             met the victim and determined that her disability precluded an

                                           5
               interview.

               Det. Blomquist interviewed the defendant at Delaware State
               Police Troop 3. He admitted that he received fellatio from
               the victim. He repeatedly stated that he did not force her to
               engage in the sex act. He also indicated that he needed help
               “sexual wise” on knowing “who to do it with and who not to
               do it with.” He admitted that having sex with the victim was
               wrong.

               Dr. Stephen Mechanick, a psychiatrist, evaluated the victim’s
               ability to consent to sexual activity (Exhibit “B”). Dr.
               Mechanick reviewed the victim’s school and medical records,
               the police report and associated interviews, and Division of
               Family Services records and he personally evaluated the
               victim in her home. Dr. Mechanick concluded that the victim
               had 22q11.2 deletion syndrome, a genetic disorder that
               causes developmental delays. Dr. Meckanick determined that
               the victim’s “intellectual disability seriously compromises her
               ability to understand and consent to engaging in sexual
               activity.” The doctor found that the victim “is not capable of
               consenting to engaging in sexual activity” and that her
               “psychiatric impairments are quickly . . . obvious to even a
               casual observer.”2

                               KUNITZ’S CONTENTIONS
       In his motion, Kunitz raises the following grounds for relief:
               Ground one:           Ineffective Assistance.
                                     That my counsel failed to investase (sic) my case and
                                     gave me erronouse (sic) information in which she
                                     informed me that it was best for me to plea out. As
                                     well as not giving me a copy of the arrest warrant or
                                     any thing else in my case.


2
    State v. Kunitz, Del. Super, ID No. 1706010844, D.I. 28.

                                                6
                Ground two:           Faulty indictment.
                                      The indictment doesn’t met (sic) the eliments (sic) of
                                      the charge for. I was indicted on charge, however that
                                      charge to meet the eliments (sic) I would need to be
                                      indicted on other charges. Plus there is no signature of
                                      the chairperson of the Grand Jury.

                Ground three:         I wish to claim actual innocents (sic) to my charge.
                                      I did not force myself upon the person in this case.
                                      Thus my arrest and conviction are of malicious act

                                         DISCUSSION

        Under Delaware law, this Court must first determine whether Kunitz has met the
procedural requirements of Superior Court Criminal Rule 61(i) before it may consider
the merits of his postconviction relief claim.3          This is Kunitz’s first motion for
postconviction relief, and it was filed within one year of his conviction becoming final.
Therefore, the requirements of Rule 61(i)(1) - requiring filing within one year and (2) -
requiring that all grounds for relief be presented in initial Rule 61 motion, are met. None
of Kunitz’s claims were raised at the plea, sentencing, or on direct appeal. Therefore,
they are barred by Rule 61(i)(3), absent a demonstration of cause for the default and
prejudice. Only Kunitz’s first ground for relief is based on ineffective assistance of
counsel; therefore, he has alleged cause for his failure to have raised the claim earlier.
He makes no argument for his failure to have raised his remaining two claims earlier.
They are therefore clearly procedurally by Rule 61(i)(3).
        At this point, Rule 61(i)(3) does not bar relief as to Kunitz’s first ground for
relief, provided he demonstrates that his counsel was ineffective and that he was
prejudiced by counsel’s actions. To prevail on his claim of ineffective assistance of

 3
     Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

                                                 7
counsel, Kunitz must meet the two-prong test of Strickland v. Washington.4 In the
context of a guilty plea challenge, Strickland requires a defendant show: (1) that
counsel's representation fell below an objective standard of reasonableness; and (2) that
counsel's actions were prejudicial to him in that there is a reasonable probability that, but
for counsel's error, he would not have pled guilty and would have insisted on going to
trial and that the result of a trial would have been his acquittal.5 The failure to establish
that a defendant would not have pled guilty and would have proceeded to trial is
sufficient cause for denial of relief.6 In addition, Delaware courts have consistently held
that in setting forth a claim of ineffective assistance of counsel, a defendant must make
concrete allegations of actual prejudice and substantiate them or risk summary
dismissal.7 When examining the representation of counsel pursuant to the first prong of
the Strickland test, there is a strong presumption that counsel's conduct was
professionally reasonable.8 This standard is highly demanding.9 Strickland mandates
that, when viewing counsel's representation, this Court must endeavor to “eliminate the
distorting effects of hindsight.”10
       Following a complete review of the record in this matter, it is abundantly clear that
Kunitz has failed to allege any facts sufficient to substantiate his claim that his attorney
was ineffective. I find trial counsel’s affidavit, in conjunction with the record, more
credible that Kunitz’s self-serving claims that his counsel’s representation was
 4
    466 U.S. 668 (1984).
 5
    Id. at 687.
 6
    Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53, 60 (Del.
 1988))(citations omitted).
 7
    See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995 WL
 466465 at *1 (Del. Supr.)).
 8
    Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).
 9
    Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477 U.S. 365,
 383 (1986)).
 10
     Strickland, 466 U.S. at 689.

                                                 8
ineffective. Kunitz’s counsel clearly denies the allegations.
       Kunitz was facing the possibility of twenty-five years in prison had he been
convicted. The sentence and plea were very reasonable under all the circumstances,
especially in light of the overwhelming evidence against him. Prior to the entry of the
plea, Kunitz and his attorney discussed the case. The plea bargain was clearly
advantageous to Kunitz. Counsel was successful in negotiating a beneficial plea bargain
with the State. Counsel’s representation was certainly well within the range required by
Strickland. Additionally, when Kunitz entered his guilty plea, he stated he was satisfied
with defense counsel’s performance. He is bound by his statement unless he presents
clear and convincing evidence to the contrary.11 Consequently, Kunitz has failed to
establish that his counsel’s representation was ineffective under the Strickland test.
       Even assuming, arguendo, that counsel’s representation of Kunitz was somehow
deficient, Kunitz must satisfy the second prong of the Strickland test, prejudice. In
setting forth a claim of ineffective assistance of counsel, a defendant must make concrete
allegations of actual prejudice and substantiate them or risk dismissal.12 In an attempt
to show prejudice, Kunitz simply asserts that his counsel was ineffective. His statements
are insufficient to establish prejudice, particularly in light of the evidence against him.
Therefore, I find Kunitz’s grounds for relief are meritless.
       To the extent that Kunitz alleges his plea was involuntary, the record contradicts
such an allegation. When addressing the question of whether a plea was constitutionally
knowing and voluntary, the Court looks to a plea colloquy to determine if the waiver of
constitutional rights was knowing and voluntary.13 At the guilty-plea hearing, the Court
 11
    Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d 931, 937-938
 (Del. 1994)).
 12
    Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552, 556 (Del.
 1990)).
 13
    Godinez v. Moran, 509 U.S. 389, 400 (1993).

                                                9
asked Kunitz whether he understood the nature of the charges, the consequences of his
pleading guilty, and whether he was voluntarily pleading guilty. The Court asked Kunitz
if he understood he would waive his constitutional rights if he pled guilty including the
right to suppress evidence; if he understood each of the constitutional rights listed on the
Truth-in-Sentencing Guilty Plea Form (“Guilty Plea Form”); and whether he gave
truthful answers to all the questions on the form. The Court asked Kunitz if he had
discussed the guilty plea and its consequences fully with his attorney. The Court asked
Kunitz if he was entering into the plea as he was guilty of the charges. The Court also
asked Kunitz if he was satisfied with this counsel’s representation. Kunitz answered
each of these questions affirmatively.14 Additionally when asked by the Court if he had
any additional comments he stated: “I would like to apologize. I just – I did something
I wasn’t supposed to do and I know I’m guilty for it and I apologize for doing it. I know
I shouldn’t have.”15 I find counsel’s representations far more credible than Kunitz’s self-
serving, vague allegations.
         Furthermore, prior to entering his guilty plea, Kunitz signed a Guilty Plea Form
and Plea Agreement in his own handwriting. Kunitz’s signatures on the forms indicate
that he understood the constitutional rights he was relinquishing by pleading guilty and
that he freely and voluntarily decided to plead guilty to the charges listed in the Plea
Agreement. Kunitz is bound by the statements he made on the signed Guilty Plea Form,
unless he proves otherwise by clear and convincing evidence.16 I confidently find that
Kunitz entered his guilty plea knowingly and voluntarily and that Kunitz’s grounds for
relief are completely meritless.
         Turning briefly to Kunitz’s remaining grounds for relief he claims “faulty
 14
      State v. Kunitz, Del. Super., ID No. 1706010844 (Dec. 13, 2017) Tr. at 3-9.
 15
      Id. at 9.
 16
      Sommerville, 703 A.2d at 632.

                                                 10
indictment” in his Second ground. Specifically, he claims that the indictment does not
meet the elements and that the “chairperson of the grand jury” failed to sign the
document. Defense Counsel disagrees with this assertion as she found no problems with
the indictment. Contrary to Kunitz’s assertion, the indictment was properly signed by
the foreperson and secretary of the grand jury (Exhibit “D”).17 Kunitz’s claim is patently
untrue.
         Kunitz’s argument that the indictment fails to meet the elements is conclusory.
The language of the charge cited in the indictment, Rape Second Degree, mirrors the
language of 11 Del. C. § 772(a)(1). According to § 772(a)(1), a person is guilty of Rape
Second Degree when he or she “[i]ntentionally engages in sexual intercourse with
another person and the intercourse occurs without the victim’s consent.”18           The
indictment alleges that the defendant “did intentionally engage in sexual intercourse with
[name redacted] and the intercourse occurred without said victim’s consent.” The
indictment includes language that includes both elements of the offense – sexual
intercourse and lack of consent. This allegation fails to cite any credible supporting
evidence and is utterly conclusory.
         Furthermore, assuming arguendo that a defect in the indictment existed, Kunitz
waived any defect or error upon entry of his guilty plea.19 Kunitz’s sentence was the
result of a plea that he explicitly agreed to accept. As with Ground one, Kunitz fails to
state a ground for relief and his claim should be summarily denied.20
         In Ground three Kunitz claims actual innocence. According to Kunitz, he is not
guilty of the offense because he did not force himself upon the victim. However the

 17
      State v. Kunitz, Del. Super, ID No. 1706010844, D.I. 28.
 18
      11 Del. C. § 772(a)(1).
 19
      Cooper v. State , 2006 WL 1374676, at *2 (Del. Super. May 19, 2006),
 20
      See State v. Reeder, 2005 WL 1249041, at *8 (Del. Super. May 26, 2005).

                                               11
evidence against Kunitz was overwhelming not only was he caught in the act by the
victim’s mother, he admitted to the police that he committed the crime and knew it was
wrong. Furthermore, Kunitz acknowledged his guilt several times during his guilty plea
colloquy. Finally, it is absolutely clear from Dr. Mechanick’s report that the victim was
so mentally disabled that she was totally incapable of giving consent to any sexual act,
a fact that Kunitz clearly knew as evidenced by his acknowledgment that his actions
were “wrong.” There are simply no facts, other than Kunitz’s self-serving claims, that
support the notion that Kunitz is innocent of the charges. To the contrary, the facts
overwhelmingly support the conclusion that he is, in fact, guilty.
                                   CONCLUSION
      I find that Kunitz’s counsel represented him in a competent and effective manner
and that Kunitz has failed to demonstrate any prejudice stemming from the
representation. I also find that Kunitz’s guilty plea was entered knowingly and
voluntarily. I recommend that the Court deny Kunitz’s motion for postconviction relief
as procedurally barred and completely meritless pursuant to Superior Court Criminal
Rule 61(i)(3).

                                        /s/ Andrea M. Freud
                                          Commissioner




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