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State v. Kunitz

Superior Court of Delaware, Kent

September 11, 2019

STATE OF DELAWARE
v.
DEREK S. KUNITZ, Defendant.

         RK17-07-0360-01 Rape 2nd WO Con (F)

          Kathleen A. Dickerson, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.

          Derek S. Kunitz, pro se.

          COMMISSIONER'S REPORT AND RECOMMENDATION UPON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF PURSUANT TO SUPERIOR COURT CRIMINAL RULE 61

          ANDREA M. FREUD, COMMISSIONER

         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 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 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."[1]

         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 ...

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