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 2

nd WO Con (F)

 :

Defendant. :

ORDER

Submitted: October 25, 2019

Decided: November 21, 2019

On this 21stday 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 ofthe 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

SuperiorCourt 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 reasonsstated 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

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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 2

nd 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 exgirlfriend 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 exgirlfriend 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 DanBlomquist ofDelaware State Police’s Criminal

Investigations Unit was assigned to investigate the case. He

met the victimand determined that her disability precluded an

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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. StephenMechanick, a psychiatrist, evaluated the victim’s

ability to consent to sexual activity (Exhibit “B”). Dr.

Mechanick reviewed the victim’sschool andmedicalrecords,

the police report and associated interviews, and Division of

Family Services records and he personally evaluated the

victimin 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 groundsfor relief be presented in initialRule 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 himin 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 ofrelief.

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 ofthe 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

advantageousto Kunitz. Counsel wassuccessful 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’srepresentation of Kunitz was somehow

deficient, Kunitz must satisfy the second prong of the Strickland test, prejudice. In

setting forth a claimofineffective 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 assertsthat his counsel wasineffective. Hisstatements

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 ofthe constitutional rightslisted 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

Ishouldn’t have.”

15

Ifind counsel’srepresentations far more credible than Kunitz’sselfserving, 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.16I 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.

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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 asshe found no problems with

the indictment. Contrary to Kunitz’s assertion, the indictment was properly signed by

the foreperson and secretary ofthe grand jury (Exhibit “D”).

17 Kunitz’s claimis 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 allegesthat 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 victimwas

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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