IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
Respondent/Plaintiff, )
)
)
V ) Cr. ID. No. 89000046DI
)
)
)
MICI-LAEL A. FELICIANO, )
)
Petitioner/Defendant. )

Submitted: March 9, 2018
Decided: June 8, 2018

COMMISSIONER’S REPORT AND RECOMMENDATION ON
DEFENDANT’S SECOND MOTION FOR POSTCONVICTION RELIEF

Michael A. Feliciano, JTV, 1181 Paddock Road, Smyrna, DE 19977. Petitioner,
pro se.

MANNING, Commissioner:

This 8“‘ day of June 2018, upon consideration of petitioner Michael A.
Feliciano’s Motion for Postconviction Relief (hereinafter the “Motion”), I find and
recommend the following:

EA_C_I_S_

According to the Affidavit of Probable Cause, Feliciano and his brother,
Mark, lived With their parents at 6 FarnsWorth Drive in NeWark, DelaWare. At the
time of the offense in December 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 Where 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 Michael 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, 198 8, 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 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 Michael 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

Feliciano was indicted on February 4, 1989, for three counts of Unlawful
Sexual Intercourse First Degree. On September 5, 1989, Feliciano pled guilty to one
amended count of Unlawful Sexual Intercourse Second Degree. The remaining
counts of the indictment were dropped in exchange. Feliciano was represented by

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

in prisonl. Feliciano did not appeal his conviction to the Delaware Supreme Court.
In June of 2001, and again in 2007, Feliciano sought relief with the Board of Parole,
however, his requests were denied.

Feliciano filed his first motion for postconviction relief pursuant to Superior
Court Criminal Rule 61, pro se, on July 11, 2013.2 The Court subsequently
appointed Defendant counsel (“Rule 61 Counsel”) for his pro se Rule 61 Motion.
Gn August 4, 2014, Rule 61 Counsel filed a Non-Merit Brief and Motion to
Withdraw as Counsel under Rule 61(e)(2). The State filed a Response on December
18, 2014.3

I issued a Report and Recommendation that Feliciano’s first motion for
postconviction relief should be denied. Receiving no objections, my Report was

adopted by President Judge Jurden on July 29, 2015.4 In the interim, Feliciano filed

 

1 In 1989, parole eligible life sentences, for the purpose of determining parole
eligibility only, the Parole Board is required to treat a life sentence as a fixed term
of forty-five years. 11 Del. C. § 4346(0); Evans v. State, 872 A.Zd 539, 554 (Del.
2005)

2 lt 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.

3 Trial Counsel, Edmund M. Hillis, passed away on December 24, 2013.

4 D.I. # 30.

a motion for reduction of sentence that was also denied on April 14, 2016.5 Feliciano
subsequently filed the instant, and now second Motion, on March 5 , 2018.6 Based
on my review of Feliciano’s Motion, the Court’s file, and the guilty plea and
sentencing transcript, I did not order additional briefing or hold an evidentiary

hearing.
In his Motion, Feliciano raises two grounds for postconviction relief, which I

have summarized, as follows:

Ground One: Ineffective Assistance of Counsel. Defense
counsel was aware that his client had a diminished mental capacity as
defined by the lawyer’s rules of professional conduct section 1.14; that
his mother was present to speak on his behalf as his guardian at
sentencing; that counsel allowed defendant to sign a plea to life in
prison without first obtaining a pre-sentence evaluation; that defendant
had no prior criminal convictions prior to entering his guilty plea; and
that counsel knowingly allowed defendant to falsely answer that he has
never been a patient in a mental hospital.

Ground Two: Due Process [violation]. Defendant believes that
he was denied his due process due to his counsel not requesting a mental
health evaluation or a pre-sentence evaluation and that counsel was
informed by defendant’s mother several times about his diminished
mental capacity and that he has no criminal record.

Feliciano argues that “but for the errors presented [], were the attorney

acting in his client’s best interest or being loyal to him and his case he would

 

5 D.I. # 33.

6 The Motion was assigned to the undersigned commissioner on March 9, 2018.

not have let him sign a plea to life and that the facts and subsequent outcome
of having a trial would have been different.”7
Legal Standard and Analvsis

Feliciano’s Motion is controlled by Rule 61. Before addressing the merits of
a motion for postconviction relief under Rule 61, a reviewing court must first apply
the procedural bars of Rule 61 .8

Rule 61(i)(1) requires a motion for postconviction to be filed not more than
one year from the date the judgment of conviction becomes final. In this case,
Feliciano’s Motion is untimely because it was not filed within one year of the date
his conviction became final_October 5 , 1989.9

Rule 61(i)(2) prohibits second or subsequent postconviction motions unless
the motion satisfies subparagraphs (2)(i) or (2)(ii) of subdivision (d) of the Rule (i.e.
the motion pleads with particularity that new evidence exists or that a new rule of

constitutional law made retroactive applies to movant’s case). The instant Motion

is Feliciano’s second motion for postconviction relief and neither of the exceptions

 

7 D.I. #34, Motion at p. 4.

8 See Younger v. State, 580 552, 553 (Del. 1990) (holding that the court will apply
the rules governing procedural default before giving consideration to the merits of
the underlying Rule 61 claims).

9 Feliciano was sentenced on September 5, 1989, thus his conviction became final
after the 30-day window for an appeal to the Delaware Supreme Court had passed.

under this subdivision has been presented or argued. The arguments that Feliciano
does present are ones that could have been raised on direct appeal as legal error or

in a previous timely filed Rule 61 motion. Anv further postconviction motions

 

should be summarily denied pursuant to Rule 61(d)(5) unless the specific pleading
requirements of Ru|e 61(1)(2) are met.
Conclusion
F or the foregoing reasons, Feliciano’s Motion should be DENIED.

IT IS SO RECOMMENDED.

 

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Bradley \-/.CM/anni"ng
Commissioner

oc: Prothonotary
cc: Petitioner via first class mail

