Martin O'Connor, Esquire, Deputy Attorney General Attorney for the State.
Andrew J. Witherell, Esquire, Attorney for Defendant.
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
BRADLEY V. MANNING, Commissioner
This 15th day of January, 2015, upon consideration of Defendant's Motion for Postconviction Relief, the Court finds the following:
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 to 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 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.
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 count of Unlawful Sexual Intercourse First Degree and one amended count of Unlawful Sexual Intercourse Second Degree. Defendant was represented by counsel and was sentenced immediately to the statutorily mandated sentence of Life in prison. 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. 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 61(e)(2). The State filed a Response on December 18, 2014. 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 ...