State of Delaware v. Quentin A. Wilkerson, Sr.

SUPERIOR COURT
OF THE
STATE OF DELAWARE

E. SCOTT BRADLEY 1 The Circle, Suite 2
JUDGE GEORG ETOW N, DE 19947

February 26, 2016

STATE MAIL – S980C
Quentin A. Wilkerson, Sr.
SBI # 00515409
Sussex Correctional Institution
Route 3, Box 500
Georgetown, DE 19947

RE: State of Delaware v. Quentin A. Wilkerson, Sr.
ID. No. 1306023969

Date Submitted: November 10, 2015

Dear Mr. Wilkerson:

This is my decision on your Motion for Postconviction Relief. The State of

Delaware charged you with 25 counts of Dealing in Child Pornography. The charges

arose out of the Attorney General’s Child Predator Task Force’s undercover

investigation into the distribution of child pornography through a peer-to-peer file

sharing network known as the “Ares Network.” This type of network is often used

by people to share images of child pornography. The “Ares Network” operates by

allowing users who have installed the software on their computer to share files with

other users on the network. Through the course of the investigation, Delaware State

Police Detective John Messick of the Child Predator Task Force was able to
determine that child pornography was being made available from an internet protocol

address returning to you. Detective Messick determined that your internet protocol

address had at least 12 files available for sharing which appeared to be child

pornography as defined by Delaware law. One video showed a completely naked pre-

pubescent female child lying on her back with her legs pulled upward, exposing her

vaginal area. In between the female child’s legs was an adult male with his erect

penis exposed. The adult male started masturbating his erect penis above the female

child’s vaginal area. The adult male then ejaculated onto the female child’s vaginal

area. The first scene of a second video showed two pre-pubescent naked females

approximately 10 to12 years of age on a bed. The camera person zoomed in on the

vaginal area of one of the females and touched her vagina with his hand. One of the

females then performed cunnilingus on the other female. One of the females was then

digitally penetrated in her anus by what appeared to be the camera person. An erect

adult male penis was then seen penetrating the anus of one of the young females. The

female then masturbated the erect penis of the adult male until he ejaculated in her

mouth. The child then spit out the semen and wiped her mouth and tongue with the

sheets and a pillow. Based on these videos and other information, Detective Messick

obtained a warrant to search your computers.

Members of the Delaware State Police and Child Predator Task Force executed

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a search warrant at your home located at 321 E. Sixth Street, Laurel, Delaware, at

approximately 7:09 a.m. on June 27, 2013. The search warrant authorized the police

to search all of your computers, digital media and vehicles. You and your wife were

not at home when the police arrived. Only your three children were at home. Your

son called your wife. The police got your wife’s phone number from your son and

called her at 7:25 a.m. to tell her what was going on. The police told your wife that

they had a search warrant and that it was “computer related.” Your wife then called

you. Your wife told the police that you would be home soon. You arrived home at

approximately 8:30 a.m. in a 2006 Chevrolet van. The police told you that they had

a search warrant for all of your computers. You told the police that your laptop was

in the house. The police searched your van and found a black nylon case with an HP

Pavilion laptop computer. During a post-Miranda interview, you told the police that

the laptop that the they found in your van was yours and that you were the primary

user of it. Your daughter told the police that she never saw anyone else use your

laptop. Your daughter also told the police that your son never used any laptop other

than his own. You denied using your laptop to download any music or videos. You

also told the police that you had not looked at any pornography on your laptop for

two years. A preliminary forensic examination of the your laptop’s hard drive found

four images of children involved in prohibited sexual acts as defined by Delaware

3
law. During the full forensic examination of your laptop, the police found additional

images of children engaging in prohibited sexual acts. The police also determined

that you had deleted over 1,000 files related to peer-to-peer networks, including the

“Ares Network,” during the period of time between 7:41 a.m. and 7:52 a.m. on June

27, 2013. This was in the time period after your wife called you but before you

arrived at home. The police prepared a Computer Forensic Summary of the child

pornography that they found on your computer. The following are verbatim excepts

from that report:

Examination Results

CSE Images Recovered? Yes. CSE Images Found as ACTIVE (Non-Deleted) Files?
Yes
CSE Images Found as In-Active (Deleted) Files? YES CSE Images Carved from
UA/Free Space? Yes.
NUMBER OF CSE Images (Still) Identified? 45 X Minimum Approximate
NUMBER OF CSE Video Identified 18 X Minimum Approximate
CSE Includes:
X Boy(s) X Girls (s) X Both Genders (Intentional inclusion of both in collection)
Infants X Toddlers Pre-School Pre-Pubescent Known/Local Victim
Sadism Bondage X Bestiality Degradation X Urination/Defecation
X Incest (Mother/Son) Incest (Mother/Daughter Incest (Other Adult Female
Child)

Based on review of images, it appears the collector preference(s) is/are: Pre
to early pubescent females masturbating (based on actual children) Based on Erotic
Cartoons, it appears the interest is much younger (preschool or younger) and
incestuous sexual relations.

Observed Act(s) Include(s):
X Anal Penetration of Child by Adult Penis
X Vaginal Penetration of Child by Adult Penis
X Oral Intercourse on Child by Adult Penis X Oral Intercourse on Child by Child
X Oral Intercourse by Child on Adult X Oral Intercourse by Child on Child

4
 X Masturbation of Child by Adult (Manual) X Masturbation of Adult by CHILD
(Manual)
X Masturbation of Child by Child (Manual) X Masturbation of Child by Self
(Manual)
X Nudity – Sexual Posing
X Child Erotica Still Images
X Child Erotica Common Internet Sources
X Deleted MFT Entries
X Recovered P2P Search Terms
X File Deletions/Concealment X File Trades

Evidence of Child Sexual Exploitation Video Files

Examination of the logical file structure of the hard drive from the HP Netbook computer
revealed that a number of items relating to peer to peer file sharing had been deleted during the
morning of 6/27/2013 between 7:41 a.m. and 7:52 a.m. I found that in excess of 1,000 files relating
to Ares, Azureus and FrostWire had been deleted during that time period. Additionally, I found that
among 8 video files consisting of Child Sexual Exploitation (CSE) found in the directory structure
of the HP Netbook Computer, 7 had been deleted during the morning of 6/27/2013 and were found
in the Microsoft Windows Recycle Bin. Four of those CSE Video files have been deleted. Those
files are listed and described below:

1. *This video depicts a pre-pubescent Caucasian girl in a bathroom setting
wearing only underwear and posing suggestively. The video is titled “Newstar
Diana” in the opening credits. At times the girl is seated on the bathroom counter
with her legs spread apart and pulls her shirt up and panties down. The video is 8
minutes and 31 seconds long.

2. *This video depicts an adult Caucasian male engaged in anal intercourse
with a pre-pubescent Caucasian girl. The girl and man speak with British accent.
The male eventually ejaculates on the girls vagina. The video is 2 minutes and 40
seconds long.

3. *This video depicts the same two subjects and the video above. The adult
male is masturbating and eventually ejaculates on the face and into the mouth of the
pre-pubescent girl. The girl and man speak with a British accent and the man
instructs the girl to swallow his semen. The video is 1 minute and 51 seconds long.

4. *This video depicts a pre-pubescent Caucasian boy masturbating and
subsequently performing fellatio on a Caucasian adult male. The male then
masturbates and ejaculates on the boy’s face. The video is 14 minutes and 18
seconds long.

5
 Three additional video files were deleted earlier in the morning of 6/27/13 between
approximately 12:28 and 12:29 a.m. Those videos are listed and described below:

1. *This video depicts a pre-pubescent dark skinned, possibly Latino girl
posing for a camera which is placed on the floor of what appears to be a child’s
bedroom. The girl removes her pants and pulls up her panties so that her vagina is
visible. The video is 1 minute and 10 seconds long.

2. *This video depicts a pre-pubescent Caucasian girl with a British accent
who is wearing a G-String which is pulled up tightly into her vagina. The girl pulls
the waistband of the [G-String] over each arm and over her shoulders. The setting
appears to be a bedroom. The video is 53 seconds long.

3. *This video depicts a pre-pubescent Caucasian girl in a child’s bedroom
setting. The girl removes her pants and panties while posing for the camera. The
video is 1 minutes and 10 seconds long.

The remaining video file was deleted on 6/23/2013 and is listed and described
below:

1. *This video depicts a Caucasian girl who appears to be approximately 15
to 16 years of age apparently in a bathroom seated on the floor. A male subject
standing near her urinates into the girls’ mouth and she eventually vomits. The video
is 4 minutes and 50 seconds long.

The recycle bin typically contains additional information for contained
deleted files which reveal the original path and file names and attributes for those
files. However, I was not able to locate the corresponding information for these
deleted files. This is possibly due to the fact that the files had not been deleted in a
typical Windows deletion action. 3rd party deleting or wiping software can delete
files in such a manner. I conducted a search for any 3 rd party wiping software which
would have accounted for the missing information. I found evidence that a program
“ccleaner” had been run as a text search revealed 166 references to the program on
the HP Netbook computer. Ccleaner is advertised as a freely available program
which deletes unwanted files and their traces in the Windows entries and registry
while protecting the user’s privacy.

In an attempt to find additional CSE video files I conducted a text search for
terms commonly associated with CSE video and image files. Those searches resulted
in finding numerous file listings with names clearly indicative of CSE in multiple
locations. Although the files contained in these listings are not present on the
computer in its current state, this shows the files did exist in previous iterations. See
file listings below:

6
 4 adolescente sexo en hotel.
bitch thai porn – malay girl anal sex in hotel
bibcam
pthc – hotel silvepe sl idemovie
desi indian girl hotel sex porn scandal
fuck in hotel riding
love hotel
malay girl anal sex in hotel
bibcam 2 sexy blonde soccer boys
2010 boys suck
kids.avi
!!new 2007 two pre-pu [bb]
14 yo boy in shower sex with 15 yo boy cum1

Summary

Examination of the HP Netbook computer revealed that on 6/27/13 between
7:41 and 7:52 am, steps had been taken to delete and remove traces of peer to peer
file sharing programs and child sexual exploitation video files. I was able to locate
8 Child Sexual Exploitation (CSE) video files in the current directory structure which
had been downloaded through use of the Ares Peer to Peer file sharing program.
Another 10 (CSE) video files were located in a volume shadow copy (a Windows
Backup) from 6/13/2013. Additionally, I found 45 CSE image files in the directory
structure of the computer, many of which had been viewed and downloaded via
internet web browsing.

Approximately 650 child erotic image files were located in the Window
Temporary Internet Files, a directory in which files are cached to the local hard drive
during web browsing with Microsoft Internet Explorer. These files had been written
to the hard drive late in the morning on 6/26/2013. I also found indications that
email for Quentin Wilkerson (Ariez 24 @hotmail.com) had been checked just prior
to that time period on the morning of 6/26/2013.

Evidence exists as well, that Frostwire, another peer to peer file sharing
program, had been earlier used to download CSE video files.

Your Defense Counsel reviewed this report and then met the State’s forensic

computer examiner and reviewed the videos at the Child Predator Task Force’s

1
This is only a partial list. The complete list is three single-spaced pages long.

7
Computer Lab. Your Defense Counsel concluded that the evidence against you was

strong and recommended that you try to get the best possible plea that you could.

Your Defense Counsel believed that, while you enjoyed watching child pornography,

you were not a threat to sexually abuse a child. Your Defense Counsel believed that

a psychosexual evaluation would support his belief and advised you to undergo a

psychosexual evaluation. You accepted his advice and were examined by Steven

K.D. Eichel, Ph.D., ABPP, a licensed and board certified psychologist.

The Prosecutor agreed to drop the charges against you in exchange for your

agreement to plead guilty to one count of Dealing in Child Pornography and two

counts of Possession of Child Pornography. The Prosecutor and your Defense

Counsel requested that a presentence investigation be prepared. The Prosecutor

agreed to recommend at sentencing no more than 10 years at Supervision Level 5.

You accepted the State’s plea offer. You pled guilty to one count of Dealing in

Child Pornography and two counts of Possession of Child Pornography on April 29,

2014. I ordered a presentence investigation, but I did not sentence you. Judge T.

Henley Graves sentenced you on June 13, 2014. Judge Graves sentenced you to 31

years at Supervision Level 5 with credit for 53 days previously served, suspended

after serving three years and six months at Supervision Level 5, followed by one year

at Supervision Level 4 Home Confinement, followed by eight years at Supervision

8
Level 3.

You filed your Motion for Postconviction Relief on February 23, 2015. Your

Motion for Postconviction Relief was filed in a timely manner and went to Judge

Graves for consideration. The Prosecutor and your Defense Counsel filed multiple

affidavits, at the request of Judge Graves, responding to your allegations. You filed

multiple responses. Judge Graves did not appoint counsel for you and he did not

conduct an evidentiary hearing. Once Judge Graves realized that I had taken your

plea, he returned the matter to me on November 10, 2015. I asked your Defense

Counsel to clarify his responses to several of your allegations. Your Defense Counsel

did so on February 16, 2016.

Discussion

You have set forth a large number of allegations, many of which are repeated

numerous times with varying degrees of additional information. I have divided your

allegations into two groups. The first group of allegations relates to the period of

time before you decided to take the plea. The second group of allegations relates to

the period of time when you decided to take the plea and actually pled guilty in the

court. Since you pled guilty, I must first determine if your attorney’s representation

of you left you with no choice but to plead guilty. If it did not, then I must determine

if you made a knowing, intelligent and voluntary waiver of your rights when you pled

9
guilty.

Ineffective Assistance of Counsel

The United States Supreme Court has established the proper inquiry to be made

by courts when deciding a motion for postconviction relief.2 In order to prevail on

a claim for ineffective assistance of counsel pursuant to Superior Court Criminal Rule

61, the defendant must show: “(1) counsel’s representation fell below an objective

standard of reasonableness; and (2) counsel’s actions were so prejudicial that, but for

counsel’s errors, the defendant would not have pled guilty and would have insisted

on going to trial.”3 Further, a defendant “must make and substantiate concrete

allegations of actual prejudice or risk summary dismissal.”4 It is also necessary that

the defendant “rebut a ‘strong presumption’ that trial counsel’s representation fell

within the ‘wide range of reasonable professional assistance,’ and this Court must

eliminate from its consideration the ‘distorting effects of hindsight when viewing that

representation.’”5

2
Strickland v. Washington, 466 U.S. 668 (1984).
3
State v. Thompson, 2003 WL 21244679 (Del. Super. April 15, 2003), citing Strickland,
466 U.S. 668 (1984).
4
State v. Coleman, 2003 WL 22092724 (Del. Super. Feb. 19, 2003).
5
Coleman, 2003 WL 22092724, at *2, quoting Strickland, 466 U.S. at 689.

10
 The Pre-Plea Allegations

1. The Grand Jury process is flawed because it allows the Attorney General’s

Office to present the evidence to the Grand Jury instead of an independent and

unbiased panel selected from the public.

This is how our Grand Jury works. It is governed by the Delaware

Constitution, a statute, and a rule.6 Your allegation is without merit.

2. The indictment had multiple counts based upon the same conduct

(multiplicity). You allege that your Defense Counsel did not review the indictment

and evidence to rule this out.

Your allegation is conclusory. You have not identified which counts are based

on the same set of operative facts, leaving me with no way to evaluate your

allegation.7 I note that your Defense Counsel reviewed the evidence against you and

concluded that the State would have an easy time convicting you of all 25 charges of

Dealing in Child Pornography. I note further that the State’s forensic examination

mentions 18 files found on your laptop and seven files that you had deleted, but were

recovered by the State. The seven files are discussed in great detail in the forensic

6
10 Del. C. §4505. Del. Super. Ct. Crim. R.6. Del. C. Ann. Const. Art. 1 §4.
7
Sisson v. State, 903 A.2d 288, 309 (Del. 2006). Seward v. State, 723 A.2d 365, 375
(Del. 1999).

11
report. The other 18 files were available for your Defense Counsel to watch, which

he did. I am sure that he did based on his detailed letter to you. Your allegation is

without merit.

3. Your Defense Counsel should have filed a motion to dismiss or quash the

indictment for a lack of evidence.

Your allegation is conclusory. There was a substantial amount of evidence

against you. I have discussed in considerable detail the evidence against you in this

decision. You have not told me why this evidence was insufficient to indict you.

Your allegation is without merit.

4. Your Defense Counsel never filed any fruitful defensive motions.

Your allegation is conclusory. You have not identified the motions that your

Defense Counsel should have filed and stated why he should have filed them. In

cases like this one the most obvious pre-trial motion would have been a Motion to

Suppress. Your Defense Counsel did not file a Motion to Suppress the evidence the

police found after they conducted a forensic examination of your laptop because he

could not find any flaws in the Search Warrant. I agree with your Defense Counsel’s

assessment. I reviewed the Application for Search Warrant, Affidavit of Probable

Cause, and Search Warrant. The Affidavit of Probable Cause certainly establishes

probable cause to search your computers and van. It describes in great detail the child

12
pornography that had been tracked to your internet address. The Search Warrant

specifically covered your van, which is where the police found your laptop after you

lied to the police and told them that your laptop was in your house.

Your Defense Counsel did file a Motion to Exclude Evidence or Compel

Discovery. Your Defense Counsel withdrew this motion when the State provided the

requested discovery. I find that there was nothing wrong in doing that. Your

allegation is without merit.

5. Your Defense Counsel withdrew the one and only motion he filed. You

allege that the Court would have thrown out all of the State’s evidence if Defense

Counsel had pursued this one motion.

Your allegation is conclusory. Your Defense Counsel filed a Motion to

Exclude Evidence or Compel Discovery. He withdrew it when the State provided the

requested discovery. This is often what happens during the pre-trial phase of a case.

You have not stated why I would have granted the motion even though the State did

provide the requested discovery. Without knowing how the State’s alleged delay in

providing discovery to you somehow prejudiced your case, there is nothing

meaningful for me to consider. Moreover, I note that forensic examinations of

computers do take time. Your allegation is without merit.

6. Your Defense Counsel never filed a Motion for Judgment of Acquittal.

13
 This is a motion that is made at the conclusion of the State’s presentation of its

evidence against you to the jury at trial. You never went to trial, making it impossible

for your Defense Counsel to make this motion. Your allegation is without merit.

7. Your Defense Counsel should not have filed a continuance request to give

the State more time to conduct the forensic analysis.

Your Defense Counsel, on October 2, 2013, asked the Court for a continuance

of the case review scheduled for October 7, 2013, because the State’s forensic report

was not done and would not be done for another 45 to 60 days. It appears to me that

your Defense Counsel did this to move your case review to a point in time where he

would have the forensic report so that he could have a meaningful discussion with the

Prosecutor about your case. You have not told me how this prejudiced your case. I

see nothing wrong with Defense Counsel’s actions in this regard. Your allegation is

without merit.

8. Your Defense Counsel should have opposed the State’s continuance request

for more time to complete the forensic analysis.

The Prosecutor, on February 26, 2014, asked the Court for a continuance of the

case review scheduled for March 11, 2014, because the forensic report would not be

done for another 30 days. Your Defense Counsel did not object. Without knowing

how this caused you any prejudice, I can find nothing wrong with it. I note that the

14
Prosecutor delivered the forensic report to your Defense Counsel on March 13, 2014,

which was within the time period requested. The Prosecutor’s letter says it was done

on March 13, 2013, but since her letter was clocked in at the Prothonotary’s Office

on March 20, 2014, the date in the Prosecutor’s letter must have been a typographical

error. Your allegation is without merit.

9. Your Defense Counsel never challenged the unlawful and unconstitutional

use of 11 Del. C. §§1109 and 1111.

You were charged with 25 violations of 11 Del. C. §1109(4). You allege that

there is a clear and decisive difference between “dealing” and “possession.” Your

Defense Counsel did not raise this argument because there was no basis in the law or

the facts of your case to support it. This same argument was rejected by the Delaware

Supreme Court in Fink v. State of Delaware.8 The police found more than 190 visual

depictions of child pornography on a compact disc at Fink’s house. Fink was charged

with and convicted of multiple counts of 11 Del. C. §§1109(4) and 1111(1). Fink

made the same argument you are making to his trial court judge. The trial court judge

rejected it. Fink made the same argument on appeal to the Supreme Court. The

Supreme Court rejected it. The Supreme Court, when analyzing 11 Del. C. §§1109(4)

and 1111(1), stated the following:

8
817 A.3d 781 (2003).

15
 Fink’s first argument, upon which the trial judge did rule, claims
that fifteen counts of dealing each based upon a separate, distinct
depiction or image merge into one collective offense. Both 11 Del. C.
§ 1109(4) and §1111(1) use the term “visual depiction” in the singular.
The clearest reading of the statute is that each “individual depiction” of
child pornography that is knowingly “dealt” or possessed by a defendant
constitutes the basis for a separate offense under the statutes.
Accordingly, in this case, Fink’s possession of multiple photographs
depicting child pornography constituted multiple violations of both the
dealing and the possession statute. Each picture is a crime against the
child depicted as well as an offense to society. Given the express intent
of the General Assembly to prohibit dealing in individual items of
material depicting child pornography, Fink’s argument that he could
only be charged with one download (or similarly with only one photo
album where multiple pictures appear within) and therefore only one
count under 11 Del. C. §1109(4) or §1111(1) fails to persuade us that
the trial judge erred by denying his motion.

Put another way, the State could have charged you under either statute based

upon the facts of your case. You had numerous images of child pornography on your

computer as well as a network that made the sharing of this child pornography

available to you and others. Your conduct is clearly covered by §1109(4). The State

chose to charge you under 11 Del. C §1109(4). I know that everyone charged with

Dealing in Child Pornography, a serious felony, would much rather be charged with

Possession of Child Pornography, a misdemeanor. Unfortunately for you, given the

amount of child pornography on your laptop and the manner in which you obtained

it and made it available to others, that was just not going to happen. Your argument

is similar to one I have had before in another context. Take the case of a father

16
charged with having sexual intercourse with his minor daughter. The State charges

rape and the father says it was only incest. You get the picture. Your allegation is

without merit.

10. You allege that the Delaware Legislature never intended for the Dealing

in Child Pornography statute to be applied the way it has been and is being applied.

The Delaware Supreme Court in Fink had no trouble understanding how the

legislature intended the Dealing in Child Pornography statute to be applied and in fact

said that the legislative history supported the manner in which it had been applied.

Your allegation is without merit.

11. Your Defense Counsel did not familiarize himself with 11 Del. C. §1109

and its relationship to your charges and the possible defenses.

Your allegation is conclusory. You have not told me about anything that your

Defense Counsel should have raised, but did not. Your Defense Counsel has been a

lawyer for a long time and has been practicing felony-level criminal law for a long

time. I have no doubt whatsoever that he is familiar with 11 Del. C. §1109(4) and the

possible legal and factual defenses available to a person such as yourself facing such

a charge. You certainly have not identified any plausible legal and factual challenges

to §1109(4). Your allegation is without merit.

12. Your Defense Counsel failed to raise the issue that there was insufficient

17
evidence to support a conviction for “Dealing in Child Pornography.”

You argue that there was no evidence of your dealing, transmitting,

distributing, or selling child pornography. Instead, you argue that your pornography

watching was voyeuristic in nature and that any unwanted material that you

inadvertently received was deleted, not to hide it but to get rid of it.

You were charged with violating 11 Del. C. §1109(4). The following is that

statutory section. A person is guilty of child pornography when:

(4) The person intentionally compiles, enters, accesses, transmits,
receives, exchanges, disseminates, stores, makes, prints, reproduces or
otherwise possesses any photograph, image, file, data or other visual
depiction of a child engaging in a prohibited sexual act or in the
simulation of such an act.

This is very broad. The State found numerous visual depictions of children

engaging in a prohibited sexual act or simulations of a sexual act on your laptop. You

downloaded that child pornography onto your computer using multiple peer-to-peer

file sharing networks. These types of networks allow users of child pornography to

view it themselves and share it with others. This is what the State charged under 11

Del. C.§1109(4). As the Supreme Court said in Fink, this is enough to support a

conviction under 11 Del. C. §1109(4). Your allegation is without merit.

13. Your Defense Counsel should have challenged your “possession” instead

of “dealing” argument, but refused to do so.

18
 I have dealt with this allegation before in my responses to your allegations

numbered 9, 10, 11 and 12 and concluded each time that it had no merit.

14. Your Defense Counsel refused to make a counter-offer to the State’s plea

offer, instead threatening to call off the plea, go to trial (unprepared), and subject you

to a possible sentence of life in jail. You allege that your Defense Counsel’s

secretary, when you asked her about the counter-offer, told you that your Defense

Counsel “did not want to poke a sleeping bear.” You allege that this is evidence of

an improper relationship between your Defense Counsel and the Prosecutor.

The Prosecutor made it clear to your Defense Counsel that there was only

going to be one plea offer. I do not blame your Defense Counsel for not pursuing it

any further. I have seen that backfire. I have seen a prosecutor get upset and “pull

a plea offer off the table.” Your Defense Counsel chose not to risk that. That is what

the “sleeping bear” reference is about. It has nothing to do with the fact that your

Defense Counsel and the Prosecutor are friends. I took it to mean that your Defense

Counsel did not want to make the Prosecutor mad and risk having her withdraw the

plea offer when she had made it clear to him that this was the only plea offer you

were going to get.

If you had decided not to take the plea on the day of your trial, you were not

going to have to go to trial that day. I told your Defense Counsel at your final case

19
review that if you did not take the plea on the day of your trial that your trial would

be pushed out 30 to 45 days. Your Defense Counsel was already familiar with the

evidence against you and certainly would have been ready for trial. As to the fact that

you faced a life sentence, that is true. That is what you faced and it was not going to

go away. I note that you have not once made a persuasive argument as to why you

should have gotten a better plea offer. Your allegation is without merit.

15. Your Defense Counsel never did any pre-trial research or his own

investigation. You alleged that instead your Defense Counsel relied solely on the

State’s version of the facts. You argue that a forensic evaluation of your laptop

would have showed that (1) you received the child pornography inadvertently, (2) you

were addicted to adult pornography, movies and music, and (3) your behavior did not

fit the pattern of someone who collects and trades child pornography.

Your allegations are not supported by the facts. Your Defense Counsel did not

rely on just the State’s version of the facts. The State prepared a Computer Forensic

Summary of its forensic examination of your laptop and forwarded it to your Defense

Counsel. Your Defense Counsel reviewed this report. I have no doubt that your

Defense Counsel did so because, after doing so, he sent an e-mail to the Prosecutor

asking for more information. Your Defense Counsel wanted the Prosecutor to send

his e-mail to the State’s forensic computer examiner so that their meeting at the

20
State’s Child Predator Computer Lab would go better. Your Defense Counsel went

to the State’s Child Predator Computer Lab and met with the State’s forensic

computer examiner. The State’s forensic computer examiner showed your Defense

Counsel the evidence that the State had against you. I know that your Defense

Counsel did this because after he met with the State’s forensic computer examiner he

wrote you a four-page letter, a substantial portion of which discusses in detail the

evidence against you. Your allegations about what a forensic examination of your

laptop would show are conclusory. You did not get a forensic examination of your

laptop done either before you pled guilty or filed your Motion for Postconviction

Relief. Thus, there is nothing to support your allegation that a forensic examination

would be helpful to you. Moreover, the State conducted a forensic examination of

your laptop and found it loaded with child pornography. Your allegation that you

received child pornography inadvertently is not supported by what your Defense

Counsel learned when he went to the State’s Child Predator Computer Lab. Your

Defense Counsel told you that when he went to the State’s Child Predator Computer

Lab that he “personally saw 10 additional videos that had been accessed, and then

deleted on June 13, 2013.” Your Defense Counsel told you that those files were not

deleted without being opened. Moreover, your Defense Counsel told you that the

titles of those files were sufficiently lurid that no one would open them by mistake

21
or just to see what they were. The State also found a number of titles for videos that

were once on your laptop that were suggestive of child pornography, such as “pthc,”

which means “pre-teen hard core.”

You may well be addicted to adult pornography. However, that does not mean

that you are not also addicted to child pornography. I certainly understand that you

do not believe that your behavior fits the patten of someone who collects and trades

child pornography. However, the Dealing in Child Pornography statute is very broad

and without doubt covers your activities. Lastly, your consciousness of guilt is

overwhelming. You deleted 1,000 files on your laptop after your wife told you that

the police were at your house. When you arrived at your house, you lied to the police

and told them that your laptop was in the house when it was actually in your van.

Innocent people do not behave that way. Your allegation is without merit.

16. Your Defense Counsel never pressed the State for any exculpatory

evidence. You allege that after your wife received the evidence against you, she

found a “deletion/cleaner program created on 2-18-11 and last run on 6-26-13.” You

add that this “is a program that has been associated with being a malicious form of

spyware/adware.” You allege that you have no idea what this program is or how it

got on your laptop. You also allege that you were accused of making deletions on 6-

27-13, even though the program you mentioned was last run on 6-26-13. You also

22
allege that some of the real player deletions are contradictory because they mention

deleted songs, but not deleted videos or images. You also allege that most of the

1,000 files you were accused of deleting the day you were arrested were not child

exploitive files. You sum it up by saying that since you were accused of deleting

files, it would be helpful to know which ones you deleted and which ones were

deleted by the “malicious spyware/adware program.”

You allege that the forensic report shows a “deletion/cleaner program created

on 2-18-11 and last run on 6-26-13.” I have reviewed the report and it does not say

what you allege it says. The report says that the operating system for your computer

was installed on February 18, 2011. It does not state that the “deletion/cleaner”

software was installed on February 18, 2011. As far as the date “6-26-13" is

concerned, the report states that numerous files were written to your computer on that

date. It makes no mention of files being deleted on June 26, 2013. I am not sure

where you are getting your information from and you do not provide any information

to support your allegations. The forensic scan showed that over 1,000 files were

deleted on June 27, 2013, between 7:41 am and 7:52 a.m. Furthermore, the report

states a third-party wiping software exists on your computer but it does not state its

installation date or that it was responsible for the deletions, just that it was possible

because corresponding information to the files was not present. This information is

23
typically missing when third-party wiping software is used. You could have just as

easily deleted some of the files yourself by moving the files to the trash/recycle bin.

I note that the forensic scan found items consisting of child pornography which had

been deleted on the morning of 6/27/13 in the Microsoft Windows Recycle Bin.

The State’s forensic computer examiner did find third-party deleting and/or

wiping software on your laptop. This is, according to the State’s forensic computer

examiner, a freely available program which deletes unwanted files and their tracks.

The State’s forensic examiner concluded that this program had been run on your

laptop. Since this program was on your laptop, I have no reason to believe that

anyone other than you installed and used it. You have certainly not explained why

I should believe that anyone other than you installed and used this cleaning program.

Your allegations are based, in large part, on advice you got from your fellow

inmates, who supposedly are very knowledgeable about computers, and a newspaper

article. Your allegations would be much more credible if they were made by an

identified computer expert. I read the newspaper article. It has nothing to do with

your allegations. Instead, it largely discusses “tracking software” which computer

hackers use to track the keystrokes a person makes on their computer so that the

hacker can get information like passwords and financial data.

Your allegations about the State withholding exculpatory evidence are

24
unfounded. The State has an affirmative obligation to turn over exculpatory evidence

in its possession to you. Exculpatory evidence is defined as evidence that is favorable

to the defendant and material to guilt or punishment.9 You have not identified

anything that the State withheld from you that you have now found. You have not

identified the exculpatory evidence upon which your allegation is based. The

information about the cleaner program was given by the State to your Defense

Counsel. Thus, nothing was withheld from you. You have mentioned two pieces of

exculpatory evidence. One, you allege that your wife found a “deletion/cleaner

program” in the information that your Defense Counsel sent to her when you asked

for your file. Two, you allege that the legislative history shows that 11 Del. C. §1109

was not enacted to address the type of behavior you were engaged in, which

according to you was watching adult pornography, movies and music, and

inadvertently accessing child pornography. None of this information was withheld

from you. Of course, the “deletion/cleaner program” that your wife “found” was in

the information that the State sent to your Defense Counsel, who in turn sent it to

your wife. The legislative history is a public record. Moreover, the information is

not exculpatory. Your allegation that your wife found a “deletion/cleaner program”

on your laptop is nothing more than a conclusory allegation that you are using to

9
Brady v. Maryland, 373 U.S. 83, 87 (1963).

25
explain your deletion of 1,000 files on your laptop after you found out that the police

were at your house. There is no evidence that such a program was installed on your

laptop and used by anyone other than you. As to the legislative history, the Delaware

Supreme Court in Fink concluded that the Delaware Legislature intended 11 Del. C.

§1109(4) to address exactly the type of behavior you engaged in. Moreover, I note

that you were charged with what was still on your laptop and what was deleted but

recovered during the State’s forensic analysis of your laptop. Your argument, at best,

still leaves you with child pornography on your laptop that you can not explain away.

Your allegation is without merit.

17. Your Defense Counsel never sought an independent forensic examination.

You allege that you wanted one done.

Your Defense Counsel did not have a computer expert perform a forensic

examination of your laptop because you decided not to have it done. Your Defense

Counsel told me that you decided not to get a forensic examination of your laptop

done based on his recommendation that, given the amount of evidence against you,

it was better for you to spend your money on getting a psychosexual expert to

examine you and prepare a report that could be used to make the case that you were

not a threat to actually harm children and because of that you should receive a short

sentence. I have no reason to doubt your Defense Counsel’s statement. Your

26
Defense Counsel believed that the evidence against you was very strong. I have, to

some extent, summarized the evidence against you. It is indeed strong. The fact that

you deleted 1,000 files after your wife told you the police were at your house is

powerful evidence of your consciousness of guilt. The fact that you lied to the police

about the whereabouts of your laptop is further evidence of your consciousness of

guilt. When the police asked you where your laptop was you told them it was in the

house when it was actually in your van. The police only found your laptop after they

searched your van. Your argument that the child pornography got on your laptop

inadvertently while you were downloading adult pornography, movies and music is

an argument that is often made, but I have never seen it proved. You have not given

me any information to establish how such a thing could occur. Your Defense Counsel

thought that you had an addiction to child pornography, but that you were not a threat

to actually sexually abuse children. Your Defense Counsel believed that a

psychosexual evaluation would confirm this and that it could be used to make the

case for a short sentence. That is exactly what happened. The psychosexual

evaluation was very favorable to you. The report says that you do not present as a

risk for the commission of a contact sexual offense in the future and your risk of re-

offending with child pornography is also very low. The State capped its sentencing

recommendation at 10 years of Level 5 time in the plea agreement. The Prosecutor

27
at sentencing only asked for six years of Level 5 time. Judge Graves, despite the

State’s argument at sentencing for six years of Level 5 time, only gave you three and

one-half years of Level 5 time. It turned out just as your Defense Counsel expected.

I have no doubt, given the evidence against you and the fact that you were not a threat

to physically harm children, that you decided to spend your money on a psychosexual

expert instead of a computer expert. It was a good decision and your money was well

spent. Your allegation is without merit.

18. Your Defense Counsel had no strategy to defend you.

Your allegation is not supported by the facts. Your Defense Counsel reviewed

the evidence against you and advised you that, given the strength of the State’s

evidence, your best option was to negotiate the best plea you could get under the

circumstances. Your Defense Counsel hoped to get you a favorable plea and sentence

by getting a favorable psychosexual examination of you. That was your Defense

Counsel’s strategy and, according to him, you agreed with it. In addition to all of the

child pornography on your computer, your Defense Counsel, and you, had to consider

the fact that, after learning that the police were at your house, you deleted 1,000 files

from you laptop, some of which were sexually explicit in nature. That was powerful

evidence of your consciousness of guilt. I also note that when the police asked you

where your laptop was that you told them it was in the house when it was actually in

28
your van. You certainly knew where it was because you had just used it to delete

1,000 files. Your lie was more evidence of your consciousness of guilt. I also note

that you lied about watching pornography. You told the police that you had not

watched pornography in several years. However, your laptop was loaded with child

pornography. Given all of this, your Defense Counsel’s goal was to focus on the fact

that you were not a threat to physically harm children and use it to get a good plea

and sentence.

You were facing 25 counts of Dealing in Child Pornography. That offense

carries a minimum sentence of two years in jail and a maximum sentence of 25 years

in jail. Thus, if you went to trial and were convicted of all 25 counts, you faced a

minimum sentence of 50 years in jail and a maximum sentence of 625 years in jail.

As a result of your Defense Counsel’s efforts you were sentenced to three and one-

half years in jail, which is all you will have to serve if you do not violate your

probation. That is a great deal and sentence. This was an excellent strategy as

evidenced by the good plea and sentence that you got. Your allegation is without

merit.

19. Your Defense Counsel should have focused first and more on defending

you instead of just trying to get you the best plea deal.

I have dealt with this allegation before and concluded that it had no merit.

29
 20. Your Defense Counsel never prepared for trial.

Your allegation is not supported by the facts. Your Defense Counsel told me

that he was prepared for trial. Based upon his letter to you, I can tell that he was

intimately familiar with the evidence against you and prepared to make the State

prove its case against you. There was no trial for the simple reason that you had

decided to take a plea, making your Defense Counsel’s final preparation for trial

unnecessary. Moreover, you were not facing the choice of taking a plea the day you

did take the plea or going to trial on that day. You had a final case review on

Wednesday, April 23, 2014. Your trial was scheduled for Tuesday, April 29, 2014.

Your Defense Counsel told me at your final case review that you were going to take

a plea and that the only thing holding up the plea was the finalization of the

psychosexual report that your Defense Counsel wanted the Prosecutor to review so

that she would agree to a cap on the State’s sentence recommendation. Instead of

going to trial on Tuesday, April 29, 2014, I scheduled the day for you take a plea.

You did take the plea on Tuesday, April 29, 2014. Had you not done so, I would

have given you another trial date. I was not going to force the Prosecutor, your

Defense Counsel and you to go to trial on that day if you changed your mind and did

not take the plea and that is what I told them and you at your final case review. The

following is that exchange:

30
 THE COURT: I just don’t want to get to next Tuesday, everything’s fallen

apart and - -

DEFENSE COUNSEL: No, I agree.

THE COURT: - - then we’re out another 30 days or 45 days or - -

I have no doubt your Defense Counsel would have been ready for trial had you

decided not to take the plea on April 29, 2014, and instead have gone to trial in 30 to

45 days later. Quite simply, you were not forced to take a plea because your Defense

Counsel was not ready for trial. That was not the case. Your allegation is without

merit.

21. Your Defense Counsel was not responsive to your comments and

suggestions, making you feel like you were stepping on his toes and insulting his

expertise and professionalism. Instead, your Defense Counsel advised you that “they

got you” and its time to “minimize the damage.”

Your Defense Counsel gave you an honest assessment of the evidence against

you and the most likely outcome should you go to trial. Your Defense Counsel told

you that the State’s evidence against you was strong and that it would have a

relatively easy time convicting you of 25 counts of Dealing in Child Pornography.

I agree with his assessment of the evidence. The evidence against you was indeed

strong. That is exactly what a lawyer should do. Lawyers are not cheerleaders. Your

31
Defense Counsel would not have done you a bit of good by agreeing with your

arguments that had no reasonable likelihood of succeeding. Your allegation is

without merit.

22. Your Defense Counsel did not consult with you enough and he did not

understand the distinction between “dealing” and “possessing” child pornography.

Your allegation is conclusory. I can tell by your Defense Counsel’s letter to

you that he had a good understanding of the evidence against you and that he had

conveyed that understanding to you together with a recommendation about how to

proceed, which you agreed with and followed. I can also tell from his responses to

your allegations that he was well aware of your argument about the distinction

between “dealing” child pornography and “possessing” child pornography.

Unfortunately, your conduct allowed the State to charge you with multiple counts of

Dealing in Child Pornography. Every defendant charged with Dealing in Child

Pornography would much rather be charged with Possession of Child Pornography,

but that was just not a realistic expectation for you given the large amount of child

pornography on your laptop and the manner in which you obtained it and made it

available to others. Having said that, you have not identified anything that you

wanted to discuss with your Defense Counsel that you did not get a chance to discuss

with him and how it would have made a difference in the outcome of your case if you

32
had done so, making your allegation conclusory. Your allegation is without merit.

23. Your Defense Counsel should have gotten the psychosexual risk

assessment sooner so that you could have used it as a defense strategy and in plea

negotiations.

Your Defense Counsel ordered the psychosexual report as soon as you

authorized him to do so. Your Defense Counsel told me, at your final case review on

April 23, 2014, that he wanted a little more time to get the psychosexual report so that

he could show it to the prosecutor to get as low a cap on the State’s Level 5 time

recommendation to the judge as possible. Dr. Steven K.D. Eichel, the psychosexual

expert, sent his report to your Defense Counsel on April 25, 2014. Your Defense

Counsel sent the report to the Prosecutor on Sunday, April 27, 2014, two days before

you took the plea. You pled guilty on April 29, 2014. The State, by that time, had

capped its sentencing recommendation to 10 years at Level 5. Before you took your

plea, your Defense Counsel contacted Dr. Eichel and told him the following:

“Quentin has a plea to one count of dealing which will [sic] is a
minimum sentence of two years. I thought for sure he would get at least
three counts of dealing, min of 6. So your findings were helpful in
getting the plea to its optimal point. He will take the plea on Tuesday
and be sentenced in a couple of months.”

At sentencing, the Prosecutor reduced her sentence recommendation to six

years at Level 5. Judge Graves reviewed the psychosexual report and sentenced you

33
to three and one-half years at Level 5 even though the Prosecutor had asked for a six

years at Level 5. The report was very helpful in both the plea negotiations and your

getting a very favorable sentence. Getting it earlier would not have changed

anything.

The psychosexual report would not have helped you at trial. The report could

not change the evidence against you. The Prosecutor was adamant that you would

have to plead guilty to one count of Dealing in Child Pornography and two counts of

Possession of Child Pornography or go to trial. The report could only address the

issue of whether you were likely to take the step from viewing child pornography to

actually sexually abusing children. That is a sentencing issue. Your allegation is

without merit.

24. Your Defense Counsel had a conflict of interest and this affected his

performance.

You allege that your Defense Counsel and the Prosecutor are friends. You

allege that this prevented your Defense Counsel from aggressively defending you,

including not trying to get you a better plea. You also allege that your Defense

Counsel helped the Prosecutor. You allege further that your Defense Counsel

repeatedly told you to relax and trust him because he was good friends with the

Prosecutor. Your Defense Counsel denies telling you this. Your Defense Counsel

34
told me that all that he told you was that he had cases with the Prosecutor in the past

and that she would take into consideration the psychosexual evaluation and that

getting one done would result in a better resolution of your case.

Your allegation is conclusory. You have not given me anything that leads me

to believe there is anything to it. I have already concluded that your allegations

regarding pre-trial motions, continuance requests, the lack of an effort to get a better

plea offer, and the “poke the bear” comment were of no consequence. While I believe

that there is nothing to your allegation that your Defense Counsel and the Prosecutor

were too friendly, I note that friendship is an issue that cuts both ways. You assume

that your Defense Counsel did not aggressively defend you because he did not want

to jeopardize his friendship with the Prosecutor. That is just one way of looking at

it. It is just as likely that the Prosecutor did not want to jeopardize her friendship with

your Defense Counsel by prosecuting you too aggressively. Put another way, you

may have gotten a better plea offer than you were otherwise entitled to get. In any

event, I find that there is nothing to your allegation. The reality is that the Delaware

Bar is fairly small. The criminal defense bar is even smaller. The number of lawyers

regularly prosecuting and defending child pornography cases is even smaller. The

fact that the lawyers deal with each other regularly and are on friendly terms is not

unusual. I see it all the time. As your Defense Counsel noted, as to cases the

35
relationship is strictly business. That is exactly what I see too. The Prosecutor and

your Defense Counsel deal with each other frequently and, based on what I have seen

of them, they do so in a highly professional manner. Your allegation is without

merit.

25. You allege that the Prosecutor was vindictive and out to get you.

Your allegation is based on three things. One, when the police previously

investigated you for possessing child pornography on your computers you had blamed

it all on your son, stating that you had caught him once looking at pornography. Two,

at sentencing the Prosecutor told Judge Graves that you had not accepted

responsibility for what you had done. Three, when the detective was at your house

this time he allegedly threatened you, stating, “I’m going to arrest you or your son so

you tell me who I’m going arrest.”

Your allegations are not supported by the facts of how this investigation of you

got started. This case arose when an investigator with the Child Predator Task Force

was conducting an online, undercover investigation into the distribution and

downloading of material of child sexual exploitation through peer-to-peer file sharing

networks. On April 9, 2013, the investigator identified a computer with an internet

protocol (“IP”) address of 71.204.200.160 as a potential download source of at least

12 images of child sexual exploitation. The investigator viewed one of those videos

36
and concluded that it appeared to be child pornography under Delaware law.

The investigator then determined that the IP address was assigned to Comcast

Cable Communications. On April 22, 2013, the State sent a subpoena to Comcast to

determine the subscriber information for that IP address at the relevant dates and

times. Importantly, at the time of the download of the child sexual exploitation

material, the investigator had no idea who the individual subscriber was (nor is there

any way that he would be able to know that at that point in the investigation). The

investigator only learned of the name of the subscriber once Comcast responded to

the subpoena. On April 23, 2013, Comcast provided the information that you were

the subscriber assigned to that IP address at the time it was engaged in sharing child

sexual exploitation material. Ultimately, the State obtained a search warrant for your

computers based on this information.

These undercover investigations are essentially a blind investigation in that the

investigators have no idea when they initially receive the download who is on the

other end of that download. Further, an IP address changes constantly so there was

no possible way that the investigator could have known that the you were the person

sharing the images of child sexual exploitation until much later in the investigation.

The Prosecutor stated that these charges were brought against you because you were

using a file sharing program to download and share child sexual exploitation material.

37
I have no reason to doubt her. Thus, this investigation had nothing to do with the

State’s prior investigation of you for child pornography or the fact that you blamed

it all on your son at the time.

As to what the detective allegedly told you at your house before he arrested

you, there is nothing to it. When multiple people have access to multiple computers,

the police have to figure out who is the primary user. You ultimately told the police

that you were the primary user of the laptop the police found in your van, allowing

the detective to conclude that your son was not a suspect. Moreover, this makes sense

because you were the only one who had a reason to delete 1,000 files before you met

the police at your house.

The Prosecutor at your sentencing told Judge Graves that you had not accepted

responsibility for what you had done because that is what you told the pre-sentence

officer. There is nothing vindictive about this. It is an important fact. There is no

doubt that many judges view a defendant’s acceptance or rejection of responsibility

as an important consideration when sentencing a defendant. Your allegation is

without merit.

26. Your Defense Counsel refused to make a counter-offer to the State’s plea

offer, instead threatening to call off the plea, go to trial (unprepared), and subject you

to a possible sentence of life in jail. You allege that your Defense Counsel’s

38
secretary, when you asked her about the counter-offer, told you that Defense Counsel

“did not want to poke a sleeping bear.” You allege that this is evidence of an

improper relationship between your Defense Counsel and the Prosecutor.

The Prosecutor made it clear to your Defense Counsel that there was only

going to be one plea offer. I do not blame your Defense Counsel for not pursuing it

any further. I have seen that backfire. I have seen a prosecutor get upset and “pull

a plea offer off the table.” Your Defense Counsel chose not to risk that. That is what

the “sleeping bear” reference is about. It has nothing to do with the fact that your

Defense Counsel and the Prosecutor are friends. I took it to mean that your Defense

Counsel did not want to anger the Prosecutor and risk having her withdraw the plea

when she had made it clear to him that this was the only offer you were going to get.

I note that you have not once made a persuasive argument as why you should have

gotten a better plea offer. Your allegation is without merit.

I conclude that your Defense Counsel’s representation of you did not leave you

with no choice but to plead guilty.

The Plea and Sentencing Allegations

The following are the applicable parts of your Plea Agreement, Truth-in-

Sentencing Guilty Plea Form, and Plea Colloquy.

39
 The Plea Agreement

The Plea Agreement provided, in part, the following:

(1) The Defendant will plead guilty to one count of Dealing in Child

Pornography and two counts of Possession of Child Pornography.

(2) The State and the Defendant will request a presentence investigation.

(3) The State will cap its recommendation at 10 years Level 5 time.

The State extended the plea offer on April 23, 2014. The Defendant accepted

it on April 29, 2014.

The Truth-In-Sentencing Guilty Plea Form

On the Truth-in-Sentencing Guilty Plea Form you were asked the following

questions regarding your decision to plead guilty:

Have you freely and voluntarily decided to plead guilty to the charge
listed in the written plea agreement?

You answered “yes.”

Have you been promised anything that is not stated in your written plea
agreement?

You answered “no.”

Has your lawyer, the State, or anyone threatened or forced you to enter
this plea?

You answered “no.”

40
 Do you understand that because you are pleading guilty you will not
have a trial, and therefore waive (give up) your constitutional rights:
(1) to have a lawyer represent you at trial;
(2) to be presumed innocent until the State can prove each and every
part of the charge(s) against you beyond a reasonable doubt;
(3) to a speedy and public trial by jury;
(4) to hear and question the witnesses against you;
(5) to present evidence in your defense;
(6) to testify or not testify yourself; and,
(7) to appeal, if convicted, to the Delaware Supreme Court with the
assistance of a lawyer?

You answered “yes.”

The Truth-in-Sentencing Guilty Plea Form provided the following

sentencing information:

Statutory Minimum Truth-in
Penalty Mandatory Sentencing
Offense Incarceration (if any) Guideline

Dealing in Child Porn 2-25 years 2 years 2-5 years

Poss. of Child Porn 0-3 years — 0-12 mos. LII

Poss. of Child Porn 0-3 years –– 0-12 mos. LII

Total Consecutive Maximum Penalty: Incarceration: 31 years

The Truth-in-Sentencing Guilty Plea Form ended with the following questions

regarding sentencing and your rights.

Is there a minimum mandatory penalty?

You answered “Yes.”

41
Has anyone promised you what your sentence will be?

You answered “No.”

Are you satisfied with your lawyer’s representation of you, and that
your lawyer has fully advised you of your rights?

You answered “Yes.”

Have you read and understood all the information in this form?

You answered “Yes.”

Are all you r answers truthful?

You answered “Yes.”

The Plea Colloquy

During the plea colloquy, the following exchange took place:

THE BAILIFF: Next, your Honor, we’re going to do No. 2 on the
calendar, Quentin Wilkerson, with Defense Counsel, Prosecutor.

DEFENSE COUNSEL: Good morning, Your Honor.

THE COURT: Good morning.

PROSECUTOR: Good morning, Your Honor.

THE COURT: Good morning.

DEFENSE COUNSEL: Your Honor, before you is Quentin Wilkerson.
This plea resolves two cases, 1306023969 and 1307009622, which is
combined for the indictment.

Mr. Wilkerson is taking a plea to three charges today; Count 1, dealing
in child pornography; Counts 2 and 3, lesser-included offenses of

42
possession of child pornography. All other charges on the case will be
nol-prossed upon entry of the plea.

Both the State and the defense do ask Your Honor to order a
presentence investigation. The State has agreed to cap its
recommendation at 10 years of Level 5 time.

Other conditions: No contact with minors, except for his own
children. In that case, it’s no unsupervised contact.

And then other conditions: Sexual disorder counseling; forfeit the
digital media seized on which contraband was found; and he will be
prohibited from accessing the Internet through any device. And there is
a Tier 2 registration.

Mr. Wilkerson has signed the Plea agreement and agrees to its
terms.

Your Honor, we’ve also gone through the Truth-in-Sentencing
Guilty Plea Form. Mr. Wilkerson understands and agrees to waive his
trial and appeal rights in favor of resolving his case by way of his plea.
I’ve advised him that the sentencing is up to the Court. He faces a
maximum statutory penalty of 31 years, if you add these three charge
together. He has no prior felonies, so I’ve advised him of his civil
penalties for felony convictions. I believe Mr. Wilkerson and I have had
ample opportunity to discuss the case, the evidence that would be
presented against him at trial, as well as his constitutional rights. His
plea is knowing, intelligent and voluntary, Your Honor.

THE COURT: All right. Thank you.

Would you swear Mr. Wilkerson in, please?

(Whereupon, QUENTIN A. WILKERSON, SR., the defendant

herein, was duly sworn.)

43
 THE COURT: Good morning, Mr. Wilkerson.

THE DEFENDANT: Good morning.

THE COURT: I understand you have decided to plead guilty to
charges of dealing in child pornography, and two counts of possession
of child pornography. Is that what you have decided to do?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand the nature of those offenses?

THE DEFENDANT: I believe I do, yes.

THE COURT: Do you understand the maximum period of
incarceration you face for each offense?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand that on the first charge you
must receive a sentence of at least two years in jail?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand you will have to register as a sex
offender?

THE DEFENDANT: Yes.

THE COURT: You have certain rights; those rights are listed on
the Truth-in-Sentencing Guilty Plea Form which you have signed.
Have you discussed those rights with Mr. Collins?

THE DEFENDANT: Yes, we have.

THE COURT: Do you understand all of those rights?

44
 THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand that by taking this plea you are
waiving all of those rights and there won’t be a trial?

THE DEFENDANT: Yes. Yes, sir.

THE COURT: Did anybody force you to take this plea?

THE DEFENDANT: No, sir.

THE COURT: Did anybody promise you anything for it?

THE DEFENDANT: No.

THE COURT: Did you commit these three offenses?

THE DEFENDANT: Yes, sir.

THE COURT: Are you satisfied Mr. Collins’ representation of you?

THE DEFENDANT: Yes, sir.

THE COURT: Are you sure that this is how you wish to resolve
the charges against you?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Based on all of that, I will accept your
plea as being made knowingly, intelligently and voluntarily.

I will order a presentence investigation, revoke bail, order that
you be remanded to the custody of the Department of Correction
pending sentencing.

Anything else, Counsel?

45
 DEFENSE COUNSEL: No, Your Honor.

PROSECUTOR: Thank you, Your Honor.

THE COURT: All right.

DEFENSE COUNSEL: Thank you, Your Honor.

THE COURT: Thank you. Have a good day.10

The Plea and Sentencing Allegations

1. Your Defense Counsel never told you about or showed you copies of the

State’s earlier plea offers.

Your allegation is not supported by the facts. The State only made the plea

offer that you accepted. There were no earlier plea offers. Your allegation is without

merit.

2. Your Defense Counsel refused to assist you in challenging and/or counter-

offering the State’s plea offer.

Your allegation is not supported by the facts. Your Defense Counsel and the

Prosecutor engaged in plea negotiations that resulted in the Prosecutor only making

one plea offer to you. The Prosecutor made it clear to your Defense Counsel that her

offer was based on both the large number of images of child pornography on your

laptop and the explicit nature of them. The Prosecutor also made it clear to your

10
Plea Hearing Transcript at 2-6 (April 29, 2014).

46
Defense Counsel that this was going to be the only plea offer that you were going to

get. You are not even entitled to a plea offer.11 A defense lawyer can try to persuade,

but can not force, a prosecutor to make a particular plea offer. Your Defense

Counsel got you a great plea offer. The Prosecutor agreed to cap her recommendation

of Level 5 time at 10 years. That was a great plea offer given the evidence against

you and your consciousness of guilt. Your allegation is without merit.

3. Your Defense Counsel never advised you of your right to a bench trial or

a jury trial and never explained the differences between the two to you.

Your argument is conclusory. Your Defense Counsel did not tell you that you

had the right to a bench trial because you did not. Superior Court Criminal Rule

23(a) provides that a bench trial may be had only when the defendant waives his right

to a jury trial in writing, the State consents to it and the Court approves it. Your

Defense Counsel also pointed out to me that you had decided not to go to trial

because the risks of getting an adverse result were too great. That was a good

decision. You were facing a minimum sentence of 50 years in jail and a maximum

sentence of 625 years in jail if you were convicted of all the charges against you.

Your Defense Counsel felt that the State would easily obtain a conviction on all

11
Dickson v. State, 32 A.3d 988 (Del. 2011) (TABLE) citing Washington v. State, 844
A.2d 293, 295 (Del. 2004).

47
charged offenses because the evidence against you was very strong. I agree that it

was strong. Having said that, you have not told me how the possibility of having a

bench trial affected your decision to take the State’s plea offer. I note that on the

Truth-in-Sentencing Guilty Plea Form you acknowledged that by pleading guilty you

were waiving your right to a public trial and that during the plea colloquy you told

me you understood that by taking a plea you knew that there would not be a trial.

Your allegation is without merit.

4. Your Defense Counsel coerced you into taking the plea.

Your allegation is not supported by the answers you gave on the Truth-in-

Sentencing Guilty Plea Form and to my questions during the plea colloquy. The

following are the applicable questions and your answers on the Truth-in-Sentencing

Guilty Plea Form:

Have you freely and voluntarily decided to plead guilty to the
charges listed in your written plea agreement?

You answered “Yes.”

Have you been promised anything that is not stated in your
written plea agreement?

You answered “No.”

Has your lawyer, the State, or anyone threatened or forced you to
enter this plea?

48
 You answered “No.”

The following is an excerpt of the applicable portion of the plea colloquy:

I believe Mr. Wilkerson and I have had ample opportunity to
discuss the case, the evidence that would be presented against him at
trial, as well as his constitutional rights. His plea is knowing, intelligent
and voluntary, Your Honor.

THE COURT: I understand you have decided to plead guilty to charges
of dealing in child pornography, and two counts of possession of child
pornography. Is this what you have decided to do?

THE DEFENDANT: Yes, sir.

THE COURT: Did anybody force you to take this plea?

THE DEFENDANT: No, Sir.

THE COURT: Did anybody promise you anything for it?

THE DEFENDANT: No.

THE COURT: Did you commit these three offenses?

THE DEFENDANT: Yes, sir.

THE COURT: Are you satisfied with Mr. Collins’ representation of you?

THE DEFENDANT: Yes, sir.

THE COURT: Are you sure that this is how you wish to resolve the charges
against you?

49
 THE DEFENDANT: Yes, sir.12

You are bound by the answers you gave on the Truth-in-Sentencing Guilty Plea

Form and during the plea colloquy.13 Your allegation is without merit.

5. Your Defense Counsel induced and coerced you into taking a guilty plea to

Dealing in Child Pornography when a lesser plea of Possession of Child Pornography

should have been obtained.

As I just noted, you repeatedly told me that no one forced you to plead guilty.

The Prosecutor only made one plea offer and it was to one count of Dealing in Child

Pornography and two counts of Possession of Child Pornography. A defense lawyer

can try to persuade, but can not force, a prosecutor to make a particular plea offer.

Indeed, you had no right to force the State to make a plea offer to you.14 In your case

the Prosecutor was adamant that you would have to either accept the one plea that she

offered you or go to trial. Your allegation is without merit.

6. Your Defense Counsel did not tell you before you took the plea that there

was no possibility of parole for you. You allege that you and your wife thought there

was.

12
Id. at 5-6.
13
Savage v. State, 815 A.2d 349, 2003 WL 214963, at *2 (Del. Jan. 31, 2003)(Table).
14
Dickson, 32 A.3d 988.

50
 Your Defense Counsel has acknowledged that he did not tell you that there was

no possibility of parole for you.15 If that was something that you and your wife were

thinking about, then you should have asked your Defense Counsel about it. He can

not read your mind or anticipate everything that you are thinking about. You are part

of the process too. You have to speak up when something is on your mind. Your

failure to do so is your own fault. Your allegation is without merit.

7. Your Defense Counsel induced you to take the plea based on false and

erroneous advice.

Your allegation is conclusory. You have not set forth the false and erroneous

advice your Defense Counsel gave you. Your allegation is without merit.

8. Your Defense Counsel coerced you into taking a plea to cover up for his

lack of preparation. You allege further that your Defense Counsel misrepresented

facts, withheld facts, and used the threat of a possible life sentence to get you to take

a plea. You allege that your Defense Counsel refused to make a counteroffer,

threatened to call off the plea, go to trial unprepared and subject you to a life

sentence.

I have largely addressed all of these allegations previously and concluded that

there was no merit to them. I have, based on your answers on the Truth-in-

15
Del. Admin. Code PAR 2.

51
Sentencing Guilty Plea Form and during the plea colloquy, concluded that no one

forced you to take a plea. I told your Defense Counsel at your final case review that

if you decided not to take the plea on the day that you were scheduled to go to trial

that a new trial date would have been set for sometime during the next 30 to 45 days.

Your Defense Counsel was certainly familiar with the evidence against you and that

extra time would have given your Defense Counsel plenty of time to prepare for trial.

You have not told me what facts that your Defense Counsel allegedly withheld from

you or misrepresented to you. Therefore, your allegation in that regard is conclusory.

I have also discussed at length your allegation that your Defense Counsel should have

gotten you a better plea offer and concluded that there was no merit to it. Your

allegation is without merit.

9. Your Defense Counsel withheld exculpatory evidence from you in order

to get you to take a plea.

I previously concluded that there was no exculpatory evidence withheld from

you. Your allegation is without merit.

10. Your Defense Counsel withheld information from you and pressured you

into taking the plea.

Your allegation is conclusory and is not supported by the record. Your

allegation that your Defense Counsel withheld information from you is conclusory

52
because you have not told me what evidence your Defense Counsel withheld from

you. Your allegation that your Defense Counsel pressured you to take a plea is not

supported by the answers you gave on the Truth-in-Sentencing Guilty Plea Form and

during the plea colloquy. Your allegation is without merit.

11. Your Defense Counsel told you that you would get a sentence of only two

years in jail and that it would be reduced by five days per month for good behavior

and that you would get a six month early release from Sussex Correctional Institution.

You allege that you are not eligible for early release because you are a sex offender.

You allege that your Defense Counsel did not tell you that good time was not

automatic. You allege that your Defense Counsel told you that you would only serve

15 to 16 months in jail. You allege that you did not know that sentencing would be

up to the Court.

Your Defense Counsel denies that he told you that you would only get two

years in jail. Moreover, your allegations are not supported by the record. Right

before you were sworn in to take the plea, your Defense Counsel stated in open court

and with you at his side that “the State has agreed to cap its recommendation at 10

years of Level 5 time” and that he had advised you that the sentencing would be up

to the Court. Even if he did not previously advise you of it, you certainly heard it

then. The following is exactly what your Defense Counsel said:

53
 Both the State and the defense do ask Your Honor to order a
presentence investigation. The State has agreed to cap its
recommendation at 10 years of Level 5 time.

*************

Your Honor, we’ve also gone through the Truth-In-Sentencing
Guilty Plea Form. Mr. Wilkerson understands and agrees to waive his
trial and appeal rights in favor of resolving his case by way of his plea.
I’ve advised him that the sentencing is up to the Court. He faces a
maximum statutory penalty of 31 years, if you add these three charges
together. He has no prior felonies, so I’ve advised him of his civil
penalties for felony convictions.16

Your Defense Counsel told you at the same time that you faced up to 31 years

in jail. The Truth-in-Sentencing Guilty Plea Form reflects that as well. I asked you

if you understood that you must serve at least two years in jail on the charge of

Dealing in Child Pornography. You told me that you did. The Truth-in-Sentencing

Guilty Plea Form reflects that as well. You told me that you understood the minimum

and maximum sentences you faced. Your Defense Counsel told me that he discussed

with you the possibility that you could reduce your sentence by earning good time

credits.17 You allege that he did not tell you that earning good time credits was not

automatic. As the words “good time” suggest, you had to know that “good time”

credits had to be earned by being good. Your Defense Counsel told me that he

16
Plea Hearing Transcript at 3 (April 29, 2014).
17
11 Del. C. §4381.

54
discussed with you the possibility of early release from Level 5. This is really a flow-

down from Level 5 to Level 4 Work Release. The Department of Correction does not

have to do this generally and it does not do it for sex offenders. Thus, it was only a

possibility for you and not a right. The fact that it did not happen for you is of no

consequence. Your allegation is without merit.

12. Your Defense Counsel did not put the plea agreement of “2 years, capped

at 10 years” and the good time credits and early release in writing. Your Defense

Counsel used his bad advice about 11 Del. C. §1109, the plea agreement, good time

credits and early release to coerce you into a plea that you did not want.

The plea agreement was in writing and listed the three charges that you had

agreed to plead guilty to. The plea agreement clearly stated that your Defense

Counsel and the Prosecutor wanted a presentence investigation done before

sentencing. The plea agreement also clearly stated that the “State will cap its

recommendation at 10 years Level 5 time.” The Truth-in-Sentencing Guilty Plea

Form told you that you faced a sentence ranging from 2 to 31 years of incarceration.

I asked you if you understood the maximum period of incarceration for each offense.

You said that you did. I also asked you if you understood that on the first charge

(Dealing in Child Pornography) that you had to receive a sentence of at least two

years in jail. You said that you did. Thus, you knew that you faced a sentence from

55
2 to 31 years in jail, but that the State would ask for no more than 10 years in jail.

Your Defense Counsel went over all of this with you. The possibility of earning good

time credits and early release (flow-down from Level 5 to Level 4 Work Release for

the last six months of a Level 5 sentence) were merely possibilities. They are not

automatic. The Department of Correction may, but does not have to, move you down

during the last 180 days of your Level 5 time to Level 4 Work Release. However, the

Department of Correction does not do it for sex offenders. Earning good time credits

is also merely a possibility. You have to earn them by being good and the

Department of Correction has to agree that you have earned them before you get

them. Good time credits and early release are not, based on my experience, a part of

the plea agreement. They are not a part of the plea agreement because they both lie

within the discretion of the Department of Correction and can not be agreed to by the

parties and ordered by the Court. In any event, you said that your Defense Counsel

discussed those things with you. I know that you hoped to get out of jail in less than

2 years, but it was no more than a hope. I have previously concluded that there was

no merit to your allegation that your Defense Counsel did not understand 11 Del. C.

§1109. I have also previously concluded that there was no merit to your allegation

that your Defense Counsel should have gotten you a better plea offer. Your allegation

is without merit.

56
 13. Your Defense Counsel never explained the true facts of the plea agreement

such as good time credits, early release from Sussex Correctional Institution and

sentence exposure to you.

The plea agreement was very simple. It provided that you faced a sentence of

2 to 31 years in jail. It further provided that the State would ask for no more than 10

years in jail. It provided that there would be a presentence investigation. Your

Defense Counsel told you in open court right before you pled guilty that the ultimate

sentence would be up to the judge. Early release is a misnomer. This is really a flow

down from Level 5 to Level 4 Work Release for the last 180 days of an inmate’s

Level 5 sentence. 11 Del. C. §4205(h) provides that the Department of Correction

may do this, but it does not have to do it. The Department of Correction does not

allow sex offenders to flow down early.18 This does not matter because your Defense

Counsel told you that an early flow down is merely a possibility. Good time credits

are, as I have discussed before, merely a possibility. They are not automatic. Your

allegation is without merit.

14. You allege that your Defense Counsel misadvised you of a specific

sentence of which you did not receive.

Your Defense Counsel made it clear to you that you faced a sentence of up to

18
Department of Correction Bureau of Prisons Policy 2.1 Section 6(a)(2)(b).

57
31 years in jail and that your sentence was up to the Court. He told you this is in open

court right before you pled guilty. I have already discussed how the Truth-in-

Sentencing Guilty Plea Form set forth your sentencing range. I have also already

discussed that during your plea colloquy you told me that you understood this. Your

allegation is without merit.

15. Your Defense Counsel did not explain the full exposure you faced until

a few minutes before you took the plea.

Your Defense Counsel told me that he fully explained the plea to you before

you took it. If you wanted more time to think about it, then you should have spoken

up. You did not. Moreover, as I have said repeatedly, you were told the sentencing

range that you faced and you told me that you understood that range. Your allegation

is without merit.

16. You allege that the plea agreement was ambiguous. You allege that your

Defense Counsel thought it was a minimum of 2 years of Level 5 with a cap of 10

years at Level 5. You allege further that the prosecutor thought that it was 6 years at

Level 5 with no cap. You allege that you thought you would get 2 years in jail and

no more than 10 years of probation.

There is nothing ambiguous about your plea agreement. The Truth-in-

Sentencing Guilty Plea Form, which is a part of the Plea Agreement, clearly states

58
that you faced a sentence of 2 to 31 years in jail. The plea agreement itself provides

that the State would cap its request for Level 5 time at 10 years. Thus, the

recommendation from the State would be a sentence of Level 5 time somewhere

between 2 to 10 years. The Prosecutor, at sentencing, reduced the State’s

recommendation from 10 to six years. That is where the six years came from. Judge

Graves sentenced you to three and one-half years of actual Level 5 time. He

suspended the balance of your Level 5 time, meaning you will not have to serve it

unless you violate your probation. Your Defense Counsel explained all of that to you.

I went over most of it with you during the plea colloquy. You have a 12th grade

education and work for yourself in the shipping business. I have no idea how you can

reasonably claim to not understand what the plea agreement meant. Your allegation

is without merit.

17. Your Defense Counsel did not properly advise you of the sentencing

guidelines, leaving you unable to make an informed decision about the plea offer.

You do state that your Defense Counsel discussed the sentencing guidelines with you

after the plea was signed and the day before sentencing.

Your Defense Counsel told me that he discussed the sentencing guidelines with

you. I note that they are also listed on the Truth-in-Sentencing Guilty Plea Form,

which you signed before you pled guilty. The sentencing guideline is two to five

59
years at Level 5 for Dealing in Child Pornography and 0 to 1 year of probation for

Possession of Child Pornography. I have no doubt that your Defense Counsel

discussed the sentencing guidelines with you before you pled guilty. The sentencing

guidelines are on the Truth-in-Sentencing Guilty Plea Form that you signed and that

if you did not see them it was only because you were not looking. Moreover, the

sentence that Judge Graves gave you was well within the sentencing guidelines,

which are not binding in any event.19 Your argument is without merit.

18. Your Defense Counsel never informed you of the full facts and terms of

your plea offer.

Your allegation is conclusory. Moreover, I have already discussed your

allegations in this regard in great detail and concluded that there was no merit to

them.

19. Your Defense Counsel did not give you the option to reject the plea.

Your allegation is not supported by your answers on the Truth-In-Sentencing

Guilty Plea Form and during the plea colloquy. Moreover, I addressed this twice with

you during the plea colloquy, once in the very beginning and once at the very end.

The following are the applicable excerpts of the plea colloquy:

19
Mayes v. State, 604 A.2d 839 (Del. 1992).

60
 Beginning of the Plea Colloquy

THE COURT: I understand you have decided to plead guilty to
charges of dealing in child pornography, and two counts of possession
of child pornography. Is that what you have decided to do?

THE DEFENDANT: Yes, sir.

End of the Plea Colloquy

THE COURT: Are you sure that this is how you wish to resolve
the charges against you?

THE DEFENDANT: Yes, sir.

I gave you two chances to reject the State’s plea offer. You elected not to do

so. Your allegation is without merit.

20. You allege that during the plea colloquy you gave the answers your

Defense Counsel told you to give.

Your Defense Counsel denied this. Your Defense Counsel pointed out that he

did not know what questions I was going to ask you during the plea colloquy. Thus,

he could not tell you what answers to give. I note that the answers you gave were

appropriate in all respects. Your allegation is without merit.

21. Your Defense Counsel did not tell you about your appellate rights and

procedures.

Your allegation is not supported by the record. The Truth-in-Sentencing Guilty

61
Plea Form, which you signed before you took the plea in Court, asks you the

following question:

Do you understand that because you are pleading guilty you will
not have a trial, and therefore waive (give up) your constitutional rights:
(1) to have a lawyer represent you at trial;
(2) to be presumed innocent until the State can prove each and
every part of the charge(s) against you beyond a reasonable doubt;
(3) to a speedy and public trial by jury;
(4) to hear and question the witnesses against you;
(5) to present evidence in your defense;
(6) to testify or not testify yourself; and
(7) to appeal, if convicted, to the Delaware Supreme Court with
the assistance of a lawyer:

You answered “Yes” to this question.

Thus, you acknowledged that you were waiving your right to appeal your

convictions for the three charges to the Delaware Supreme Court.

Later on in the Truth-in-Sentencing Guilty Plea Form you were asked the

following questions:

Are you satisfied with your lawyer’s representation of you, and
that your lawyer has fully advised you of your rights?

You answered “Yes.”

Have you read and understood all the information in this form?

You answered “Yes.”

Are all your answers truthful?

62
 You answered “Yes.”

Thus, twice on the Truth-in-Sentencing Guilty Plea Form you stated both that

you understood your appellate rights and that you were waiving them.

Moreover, before you were sworn in to take your plea, your Defense Counsel,

in open Court with you at his side, told me that you understood and agreed to waive

your trial and appeal rights in favor of resolving your case by way of a plea. The

following is your Defense Counsel’s exact statement to me:

“Your Honor, we’ve also gone through the Truth-in-Sentencing
Guilty Plea Form. Mr. Wilkerson understands and agrees to waive his
trial and appeal rights in favor of resolving his case by way of his plea.”

I addressed this again during the plea colloquy. The following is the exact

exchange:

The Court: You have certain rights; those rights are listed on the Truth-in-
Sentencing Guilty Plea Form you have signed. Have you discussed those
rights with Mr. Collins?

The Defendant: Yes, we have.

The Court: Do you understand all of those rights.

The Defendant: Yes, Your Honor.

The Court: Do you understand that by taking this plea you are waiving
all of those rights and there won’t be a trial?

The Defendant: Yes. Yes, sir.

63
 It is obvious that you were repeatedly told that you were waiving your trial and

appellate rights and that you repeatedly said that you knew that by pleading guilty

you were doing so. Your allegation is without merit.

22. You allege that you did not know that the Court was not bound by the plea

agreement. You allege further you were baffled when the State asked for six years.

As I have noted before, your Defense Counsel told you that the sentencing was

up to the judge. Once again, the following is his exact statement to me:

Your Honor, we’ve also gone through the Truth-in-Sentencing
Guilty Plea Form. Mr. Wilkerson understands and agrees to waive his
trial and appeal rights in favor of resolving his case by way of his plea.
I’ve advised him that the sentencing is up to the Court. He faces a
maximum statutory penalty of 31 years, if you add these three charges
together. He has no prior felonies, so I’ve advised him of his civil
penalties for felony convictions.20

Moreover, as I noted before, you were told the sentence range you faced and you told

me that you understood it. If the judge had been bound by a cap of 10 years in jail,

then there would have been no point in putting the maximum sentence you faced on

the Truth-in-Sentencing Guilty Plea Form. There also would have been no point in

asking you during the plea colloquy if you understood the maximum sentence you

faced. The State reduced its sentencing recommendation from 10 years at Level 5 to

six years at Level 5. I have no idea why that baffles you. I note further that, at

20
Plea Hearing Transcript at 3 (April 29, 2014).

64
sentencing, when the State asked for six years of Level 5 time that you said nothing.

Judge Graves gave your Defense Counsel an opportunity to respond to the State’s

argument for six years of Level 5 time. That would have been the time to speak up.

You said nothing. I note further, and most importantly, that Judge Graves gave you

less than the State asked for. Judge Graves did not exceed the State’s cap of 10 years,

the Prosecutor’s request for six years at sentencing, or the high-end of sentencing

guideline. Lastly, I do not know what you are complaining about. You were

sentenced to three and one-half years at Level 5, a sentence that is below the

maximum of 31 years, the State’s cap of 10 years, the State’s argument for six years

at sentencing, and the maximum sentencing guildeline of five years. Your allegation

is without merit.

23. Your Defense Counsel did not let you read the Presentence Investigation

Report. You allege that your Defense Counsel only discussed it with you a day

before sentencing, leaving you no time to develop a sentencing strategy. You allege

that you should have been able to read the report yourself so that you could have

challenged it.

Your allegations are not based on the rules. Superior Court Criminal Rule

32(c)(3) provides that at least seven days before sentencing the Court shall allow the

defendant’s attorney to read the Presentence Investigation Report. A defendant only

65
gets to read the report if he is pro se. You were not pro se. You were represented by

counsel. Your Defense Counsel reviewed the Presentence Investigation Report and

discussed it with you. During your interview with the presentence officer you said

you did not seek out child pornography and only inadvertently possessed it. That was

the only negative thing in the Presentence Investigation Report. The investigator felt

that you had minimized your involvement in viewing child pornography. Your

Defense Counsel had told you that this could hurt you. Dr. Eichel’s report was good

for you. It said you were no risk for a sexual contact offense and a very low risk for

re-offending with child pornography. You scored a zero on the static-99 Risk

Assessment. That put you in the low risk category. You had no prior criminal

history. Your Defense Counsel’s strategy was to argue that, while you would have

to do some jail time, you should not receive a long sentence because you had no prior

criminal history, were not a threat to physically harm a child, and would benefit from

treatment instead of a lengthy period of incarceration. Your Defense Counsel’s

strategy worked. On the charge of Dealing in Child Pornography, Judge Graves

sentenced you to only three and one-half years in jail, which was right at the mid-

point of the sentencing guideline of two to five years. Judge Graves also added that

while you were incarcerated you would have to complete a sexual disorder counseling

program. Your allegation is without merit.

66
 24. You allege that you should have been able to read the Presentence

Investigation Report at least 10 days before sentencing.

Your allegation is without merit. You did not have a right to review it at all.

Moreover, it was very helpful to you. The only negative thing in it was your refusal

to accept responsibility for what you had done. Your Defense Counsel warned you

about this. Despite his warning, you persisted in minimizing your responsibility for

what you had done. Your allegation is without merit.

25. You allege that right before sentencing your Defense Counsel told you of

the possibility of not getting the “2 years capped at 10" because the Presentence

Investigation Report indicated that you had not accepted responsibility for the crimes

you had committed.

What your Defense Counsel told you is certainly correct. As your Defense

Counsel also told you, the sentencing is up to the judge. However, that does not

matter because you received a sentence of three and one-half years, which is six and

one-half years less than what the State agreed to cap its recommendation at, and it is

two and one-half years less than what the Prosecutor actually asked for at sentencing.

I have no idea why you are complaining. Your allegation is without merit.

26. Your Defense Counsel did not properly represent you at sentencing. You

allege that he did not challenge the State’s claims during sentencing. You further

67
allege that he should not have told Judge Graves that you needed help.

Your Defense Counsel did an excellent job representing you at sentencing. He

persuaded Judge Graves to give you a sentence that was two and one-half years less

than the six years the prosecutor asked for. Judge Graves almost cut the State’s

recommendation in half. Your Defense Counsel’s decision to tell Judge Graves that

you needed help was a wise one. It suggested to Judge Graves that you had a problem

that could be dealt with through treatment and that you were willing to address your

problem. That is an excellent strategy at sentencing. Your allegation is without

merit.

27. The evidence was insufficient to support a guilty plea.

I disagree. The evidence against you, based on what your own Defense

Counsel has said and what I have discussed previously in this decision, was more

than adequate to support a guilty plea. Moreover, you admitted that you were guilty

of dealing in and possessing child pornography during your plea colloquy.

I conclude that you have knowingly, intelligently and voluntarily waived your

trial and appellate rights.

Conclusion

Your Motion for Postconviction Relief is DENIED.

68
 IT IS SO ORDERED.

/s/ E. Scott Bradley
E. Scott Bradley

ESB/sal
cc: Counsel
Prothonotary

69