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State v. Kunitz

Superior Court of Delaware, Kent

November 21, 2019

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

          Submitted: October 25, 2019

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

          ORDER

          Jeffrey J Clark Judge.

         On this 21st day 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 of the 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 Superior Court 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]

         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 reasons stated 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.

         Exhibit A

         FREUD, Commissioner September 11, 2019

         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

         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 ...


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