Rape 2nd WO Con (F)
Kathleen A. Dickerson, Esq., Deputy Attorney General,
Department of Justice, for the State of Delaware.
S. Kunitz, pro se.
COMMISSIONER'S REPORT AND RECOMMENDATION UPON
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF PURSUANT TO
SUPERIOR COURT CRIMINAL RULE 61
M. FREUD, COMMISSIONER
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 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.
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 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 22ql 1.2 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."
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