         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                            :    ID. No. 1411017324
                                             :    In and for Kent County
        v.                                   :
                                             :    RK14-12-0222-01
MELISSA TEGANO,                              :    Rape 2nd
                                             :
                     Defendant.              :

                                         ORDER

                              Submitted: November 8, 2017
                              Decided: November 15, 2017

        On this 15th day of November, 2017 upon consideration of Melissa Tegano’s
(“Tegano”) Motion for Postconviction Relief, the Commissioner’s Report and
Recommendation, and the record in this case, it appears that:
        1. Tegano pled guilty on February 24, 2015, to one count of Rape in the Second
Degree without Consent, 11 Del. C. §772. The parties recommended a sentence of
twenty-five years at Level V suspended after ten years minimum mandatory for varying
levels of probation. The Court agreed with the recommendation and sentenced Tegano
accordingly.
        2. Thereafter, Tegano filed a motion for Postconviction Relief. The procedural
history is set forth in the Commissioners Report and Recommendation of July 31, 2017,
attached hereafter as Exhibit “A”.
        3. After the issuance of the Commissioner’s Report, neither party filed exceptions.


        NOW, THEREFORE, after a de novo review of the record in this action, and for
the reasons stated in the Commissioner’s Report and Recommendation dated July 31st ,
2017,
      IT IS HEREBY ORDERED that the Commissioner’s Report and
Recommendation attached as Exhibit “A”, is hereby adopted by the Court in its entirety.
Accordingly Tegano’s Motion for Postconviction Relief pursuant to Superior Court
Criminal Rule 61 is hereby DENIED.


                                                   /s/Jeffrey J Clark
                                                   Judge




                                          2
Exhibit A



    3
        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                      )       ID. No. 1411017324
                                       )       In and for Kent County
 v.                                    )
                                       )       RK14-12-0222-01
MELISSA TEGANO                         )       Rape 2nd W/O Con (F)
                                       )
      Defendant.                       )




          COMMISSIONER'S REPORT AND RECOMMENDATION

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




Julie L. Johnson, Esq., Deputy Attorney General, Department of Justice, for the State of
Delaware.

Melissa Tegano, Pro se.


FREUD, Commissioner
July 31, 2017

      The defendant, Melissa Tegano (“Tegano”), pled guilty on February 24, 2015, to
one count of Rape in the Second Degree without Consent, 11 Del. C. §772. She was also
facing the following charges: two additional counts of Rape in the Second Degree without
Consent, one count of Sexual Solicitation of a Child Under 18 to Engage in Prohibited
Sexual Act, one count of Rape in the Fourth Degree Sexual Penetration of Another Person

                                           4
Without Consent, and one count of Unlawful Sexual Contact Second Degree Have
Contact with person less than 18 Years. Nolle prosequis were entered by the State on the
additional charges in exchange for Tegano's plea. Had she gone to trial and been found
guilty as charged she faced a minimum mandatory sentence of thirty years incarceration.
The parties recommended a sentence of twenty-five years at Level V suspended after ten
years minimum mandatory for varying levels of probation. The Court agreed with the
recommendation and sentenced Tegano accordingly. On April 29, 2015, Tegano filed a
pro se Motion for Modification of Sentence which was denied. Tegano next filed a pro
se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 alleging
ineffective assistance of counsel.
                                         FACTS
      The charges stemmed from information received by the Delaware State Police that
a fourteen year-old runaway from Virginia, Alex Winslow (“Winslow”), was with Tegano
at a house in Hartly, Delaware. On November 28, 2014, Detective Csapo responded to
the home and found Winslow with Tegano. Winslow told police that he ran away, and
Tegano and her twelve year-old sister picked him up near his home in Virginia and drove
him to the house in Hartly. Winslow said that he had met Tegano about a year before
while playing online video games. He told police that when they arrived at the house, he
slept in the living room with Tegano and her sister. He also told police that he and Tegano
engaged in oral and vaginal sex on two occasions since he had arrived in Delaware. While
Det. Csapo interviewed Tegano, she confirmed they had sex on two occasions, but she
believed he was nineteen years -old. Tegano was arrested on November 29, 2014.
                            TEGANO’S CONTENTIONS
      In the motion, Tegano sets forth the following grounds for relief:
      Ground one:          Ineffective Counsel
                           Public Defender William T. Deely took advantage of the

                                            5
                              fact that this was my first conviction of any sort. And
                              instead of having me take the original plea of 3 counts
                              of 3rd degree rape which holds 6 years. I feel I was
                              wrongfully guided and was taken advantage of because
                              Deely knew it was my first time.

      Ground two:             Disparity/Disproportion in Sentence
                              Judge Witham did not look into all the stating (sic) facts
                              of my case also in the State of Delaware vs. Monica
                              Breeding she received 2 years as I was sentenced to 10
                              years. Also, the State of Delaware vs. Molly Shattuck
                              was sentenced to 48 weekends at work release.

      Ground three:           Convicted as a habitual when it was a first offense.
                              This was my first offense ever on my criminal
                              record. I was charged and convicted as a
                              habitual offender, when I should have got my first
                              plea of 6 years not 10.

                                         DISCUSSION
      Under Delaware law, this Court must first determine whether Tegano has met the
procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the
merits of her postconviction relief claim.1 This is Tegano’s first motion for postconviction
relief, and it was filed within one year of her 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 Tegano’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
Tegano’s first claim is based on ineffective assistance of counsel; therefore, she has
alleged cause for her failure to have raised it earlier. Tegano failed to raise her other


        1
            Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

                                                 6
claims earlier they are therefore barred for failure to allege cause. Additionally the record
reflects that her allegations are factually incorrect in that she received the minimum
mandatory sentence for the charge she pled guilty to and she was never found to be a
habitual offender. Consequently these claims are also meritless.
       At this point, Rule 61(i)(3) does not bar relief as to Tegano’s first ground for relief,
provided she demonstrates that her counsel was ineffective and that she was prejudiced
by counsel’s actions. To prevail on her claim of ineffective assistance of counsel, Tegano
must meet the two-prong test of Strickland v. Washington.2 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 her 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 her acquittal.3 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.4
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.5 When examining the
representation of counsel pursuant to the first prong of the Strickland test, there is a strong




        2
            466 U.S. 668 (1984).
        3
            Id. at 687.
        4
           Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53,
 60 (Del. 1988))(citations omitted).
        5
        See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995
 WL 466465 at *1 (Del. Supr.)).

                                                 7
presumption that counsel's conduct was professionally reasonable.6 This standard is
highly demanding.7 Strickland mandates that, when viewing counsel's representation, this
Court must endeavor to “eliminate the distorting effects of hindsight.”8
        Following a complete review of the record in this matter, it is abundantly clear that
Tegano has failed to allege any facts sufficient to substantiate her claim that her attorney
was ineffective. I find trial counsel’s in conjunction with the record, more credible than
Tegano’s self-serving claims that her counsel’s representation was ineffective. Tegano’s
counsel clearly denies the allegations.
        As noted, Tegano was facing the possibility of thirty years minimum in prison had
she been convicted, and the sentence and plea were reasonable under all the
circumstances, especially in light of the evidence against her. Prior to the entry of the
plea, Tegano and her attorney discussed the case. The plea bargain was clearly
advantageous to Tegano. Counsel’s representation was certainly well within the range
required by Strickland. Additionally, when Tegano entered her guilty plea, she stated she
was satisfied with defense counsel’s performance. She is bound by her statement unless
she presents clear and convincing evidence to the contrary.9 Consequently, Tegano has
failed to establish that her counsel’s representation was ineffective under the Strickland
test.
        Even assuming, arguendo, that counsel’s representation of Tegano was somehow



         6
             Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).
         7
          Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477
 U.S. 365, 383 (1986)).
         8
             Strickland, 466 U.S. at 689.
         9
          Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d
 931, 937-938 (Del. 1994)).

                                                   8
deficient, Tegano 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.10 In an attempt to
show prejudice, Tegano simply asserts that her counsel was ineffective. Her statements
are insufficient to establish prejudice, particularly in light of the evidence against her.
Therefore, I find Tegano’s first ground for relief is meritless.
      To the extent that Tegano alleges her 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.11 At the guilty-plea hearing, the Court
asked Tegano whether she understood the nature of the charges, the consequences of her
pleading guilty, and whether she was voluntarily pleading guilty. The Court asked Tegano
if she understood she would waive her constitutional rights if she pled guilty; if she
understood each of the constitutional rights listed on the Truth-in-Sentencing Guilty Plea
Form (“Guilty Plea Form”); and whether she gave truthful answers to all the questions on
the form.      The Court asked Tegano if she had discussed the guilty plea and its
consequences fully with her attorney. The Court asked Tegano if she was entering into
the plea as she was guilty of the charges. The Court also asked Tegano if she was
satisfied with this counsel’s representation. Tegano answered each of these questions
affirmatively. I find counsel’s representations far more credible than Tegano’s self-
serving, vague allegations.
      Furthermore, prior to entering her guilty plea, Tegano signed a Guilty Plea Form


        10
           Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552,
 556 (Del. 1990)).
        11
             Godinez v. Moran, 509 U.S. 389, 400 (1993).

                                                9
and Plea Agreement in her own handwriting. Tegano’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. Tegano is bound by the statements she made on the signed Guilty Plea Form,
unless he proves otherwise by clear and convincing evidence.12 I confidently find that
Tegano entered her guilty plea knowingly and voluntarily and that Tegano’s grounds for
relief are completely meritless.
                                       CONCLUSION
      I find that Tegano’s counsel represented her in a competent and effective manner
and that Tegano has failed to demonstrate any prejudice stemming from the
representation.     I also find that Tegano’s guilty plea was entered knowingly and
voluntarily. I recommend that the Court deny Tegano’s motion for postconviction relief
as procedurally barred and completely meritless.



                                                 /s/ Andrea M. Freud
                                                     Commissioner




        12
             Sommerville 703 A.2d at 632.

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