Opinion
CR. A. Nos.: IN04-03-2294-R1; IN04-03-2295-R1; IN04-03-2296-R1; IN04-03-2201-RI; IN04-03-2302-R1; IN-04-03-2304-R1; IN-04-03-2305-R1, DEF. I.D.: 0403019957A; 0403019957B.
Submitted: October 10, 2007.
Decided: January 17, 2008.
Upon Consideration of Defendant's Pro Se Motion for Post Conviction Relief DENIED.
ORDER
This 17th day of January, 2008, upon consideration of the Motion for Postconviction Relief brought by Defendant, Sean M. Sisson, it appears to the Court that:
1. Sean Sisson ("Defendant") was charged with ten counts of Sexual Exploitation, twenty-five counts of Unlawfully Dealing in Child Pornography, and twenty-five counts of Possession of Child Pornography by indictment dated April 19, 2004.
2. Prior to trial, Defendant filed two motions that are pertinent to the motion sub judice. First, Defendant filed a motion to suppress evidence collected at his home during the execution of a search warrant conducted by the Delaware State Police ("DSP"). Defendant challenged the warrant on four separate grounds: (1) the evidence used to support the warrant was stale; (2) the information contained in the affidavit of probable cause was insufficient to secure the warrant because the affidavit did not demonstrate that emails sent by an internet "screen name" linked to Defendant were actually sent by Defendant, nor did it demonstrate the reliability of the sources that supplied the information for the affidavit; (3) the police intentionally or recklessly omitted information from the affidavit that Defendant may have been the victim of email "spoofing" ("reverse Franks argument"); and (4) the affidavit was intentional ly or recklessly misleading in that it inaccurately suggested that the affiants were in possession of the illegal emails to which pornographic images allegedly were attached (" Franks argument").
Spoofing occurs when a computer user receives email that appears to originate from one source when it actually was sent from another source. State v. Sisson, 883 A.2d 868, 874 n. 19 (Del.Super. 2005) (citing Carnegie Mellon Software Engineering Institute, CERT Coordination Center, Spoofed/Forged E-mail at http://www.cert.org/tech_tips/-email-spoofing.html).
Defendant also filed a motion to severe the ten counts of Sexual Exploitation from the Unlawfully Dealing in Child Pornography and Possession of Child Pornography charges. The Court granted this motion on April 7, 2005.
3. At the conclusion of the suppression hearing, the Court rejected the staleness and both Franks arguments in an oral ruling. The Court disagreed that the evidence used to obtain the warrant was stale because the nature of the evidence and the habits of collectors of child pornography supported the conclusion that such individuals retain these pictures for longer than they might retain other fungible evidence. With respect to the reverse Franks argument, the Court reasoned that the omitted information would not have altered the magistrate judge's probable cause analysis. Additionally, the Court noted that no evidence was presented at the hearing to suggest that the police affiants either intentionally or recklessly withheld information. The Court rejected the Franks argument because the affidavit contained no indication by the affiants that they were in actual possession of the email.
4. On March 11, 2005, the Court issued a written decision regarding Defendant's probable cause argument. The Court found that the facts set forth in the affidavit supported the magistrate judge's finding of probable cause because the "screen name" associated with the email and linked to Defendant was sufficient to allow a reasonable person to believe that "seizable property would be found at the address of the Internet subscriber with whom the name is registered." The Court also concluded that American Online ("AOL"), an internet provider, was a reliable informant because it was analogous to a citizen eyewitness of a crime, and no independent corroboration of the information AOL supplied to the police was required.
State v. Sisson, 883 A.2d 868, 878 (Del.Super. 2005).
Id.
5. The second pretrial motion at issue here is Defendant's motion to dismiss Counts II through X (each charging Sexual Exploitation) on the ground that the charges contained therein were multiplicious and therefore unconstitutional. Defendant based his argument on the statutory language that criminalizes conduct resulting in the exploitation of a child when "[t]he person knowingly photographs or films a child engaging in a prohibited sexual act or in the simulation of such an act, or otherwise knowingly creates a visual depiction of a child engaging in a prohibited sexual act or in the simulation of such an act." According to Defendant, the Sexual Exploitation Statute did not contemplate a separate offense for each individual photograph taken, but rather a single offense for each "session" at which photographs were taken. Defendant argued that the State's interpretation of the statute would provide a loophole for individuals who produce one videotape (with potentially multiple depictions of sexual activity) in a single session because such offenders would be charged with only a single instance of sexual exploitation while the person who photographs a child would face multiple charges based on the number of photographs taken during the session.
The single visual depiction — the video tape.
6. The Court denied Defendant's motion to dismiss and declared that the statute was written to create a separate charge for each visual depiction of a child engaged in sexual acts regardless of the medium capturing the image. With respect to the potential loophole created by this interpretation, the Court reasoned that even if a loophole did exist, it could be remedied at sentencing because the Court may consider the circumstances surrounding the creation of the visual depiction, including the length of the filming session and the nature of the final product, in determining an appropriate sentence.
State v. Sisson, 883 A.2d 68, 72 (Del.Super. 2005).
7. On April 28, 2005, after a bench trial on the severed charges, the Court found Defendant guilty of six of the ten counts of Sexual Exploitation of a Child. Defendant later plead guilty, on June 24, 2005, to two counts of Unlawfully Dealing in Child Pornography and the State agreed to drop the remaining charges. Defendant was sentenced on June 24, 2005 to thirty four years in jail, suspended after serving twelve years, followed by probation.
8. Defendant subsequently appealed his conviction to the Supreme Court of Delaware. In his appeal, Defendant challenged, inter alia, this Court's ruling on the motions to suppress and dismiss. Defendant again argued that the affidavit to secure the search warrant was invalid on the grounds that the evidence was stale, insufficient to support a finding of probable cause, and that the DSP detectives acted with reckless disregard for the truth by omitting information about email "spoofing." Defendant also disputed this Court's interpretation of 11 Del. C. § 1108(1) with respect to multiplicity and asked the Supreme Court to reverse this Court's order denying his motion to dismiss. On June 19, 2006, the Supreme Court affirmed Defendant's conviction on all grounds.
Sisson v. State, 903 A.2d 288 (Del. 2006).
9. On January 3, 2007, Defendant filed this pro se Motion for Postconviction Relief seeking reversal of his conviction and appointment of counsel. Defendant alleges that his appellate counsel was ineffective because the Supreme Court, in its opinion, discussed issues that appellate counsel either did not raise on appeal or argued incorrectly on appeal. These issues, according to Defendant, are: (1) counsel failed to appeal this Court's finding that detectives did not knowingly include false information in the affidavit; (2) counsel failed to argue on appeal that child pornography may inadvertently be acquired and that it is relatively easy to obtain; (3) counsel failed to argue on appeal that a password was not necessary for email spoofing or that Defendant may have been the victim of identity theft; (4) counsel failed to argue on appeal that the magistrate judge would not have issued the search warrant if the police affiants had not omitted certain information; (5) counsel failed to argue on appeal that the detectives acted with reckless disregard for the truth by not stating in the search warrant that they did not have the IP address of the computer that sent the email; (6) counsel failed to argue on appeal that the facts of this case are distinguishable from the facts of State v. Evers (relied upon by this Court and the Supreme Court); (7) counsel failed to argue on appeal that the informants who supplied the information used to obtain the search warrant were unreliable; (8) counsel did not properly argue on appeal that a username alone was not sufficient to establish a nexus between Defendant's residence and the computer that sent the email; and (9) Counsel failed successfully to challenge on appeal this Court's interpretation of 11 Del. C. § 1108.
10. Rule 61(g)(2) permits the Court to direct counsel to supplement the record in response to a defendant's claims of ineffective assistance of counsel. In light of Defendant's claims here, the Court requested Defendant's appellate counsel to supply an affidavit as contemplated by Rule 61(g)(2). Appellate counsel submitted his affidavit on October 10, 2007.
11. On November 13, 2007, Defendant filed an amendment to his July 3, 2007 motion. His amendment asserts two additional grounds for relief: (1) the language of 11 Del C. § 1108 creates a minimum sentencing disparity, an illegal sentence, and cruel and unusual punishment; and (2) the information the DSP detectives omitted from the affidavit amounted to prosecutorial misconduct.
Defendant also asserts a "constitutional vagueness" claim, but the Court is unable to discern exactly what Defendant is arguing because he fails to explain the argument or provide any supporting facts or legal authority. Super.Ct.Crim.R. 61(b)(2) (motion for postconviction relief "shall set forth in summary form the facts supporting each of the grounds thus specified."); State v. Eley, 2002 WL 337996, at *3 (Del.Super.Ct. Feb. 19, 2002) (refusing to address "vague" and "unclear allegations" in defendant's motion for postconviction relief.)
12. Before addressing the merits of any postconviction relief claim, the Court must determine whether the claims pass through the procedural filters of Rule 61. Rule 61 imposes four procedural imperatives on Defendant's motion: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in any prior postconviction proceedings; (3) any basis for relief not asserted in the proceedings below as required by the court rules is subsequently barred unless defendant can show cause and prejudice; and (4) any ground for relief must not have been formerly adjudicated in any proceeding unless warranted in the interest of justice. Under Rule 61(i)(5), a defendant may avoid the first three procedural imperatives if the claim challenges the Court's jurisdiction or is "a colorable claim that there was a miscarriage of justice because of a constitutional violation."
See Younger v. State, 580 A.2d 552, 554 (Del. 1990) (stating that the court will not address the substantive merits of defendant's motion for postconviction relief if the claims are procedurally barred).
SUPER. CT . CRIM . R. 61(i)(5).
13. Defendant's motion is not procedurally barred. The motion is timely because the Supreme Court of Delaware issued its final mandate on July 12, 2006 and Defendant filed this motion on July 3, 2007. Defendant's motion is not barred under 61(i)(2) because this is his first motion for postconviction relief. Finally, the motion is not barred under Rules 61(i)(3) and 61(i)(4) because Defendant could not have raised his ineffective assistance of counsel claims at trial or on direct appeal.
A. Ineffective Assistance of Counsel
14. Defendant alleges nine separate instances of ineffective assistance of appellate counsel. In support of these claims, Defendant points to the language used by the Supreme Court of Delaware in its opinion affirming his conviction. According to Defendant, "one must assume that the Court would not have mentioned these issues in its opinion if the issues were not material to [Defendant's] case or the court was not concerned about the substantial possible merit to the omitted issues had they been raised by appellate counsel or argued differently."
Docket Item ("D.I".) 27, at 5.
15. The Court's analysis of an ineffective assistance of counsel claim is governed by the two part test set forth in Strickland v. Washington. Defendant "must show that his counsel's representation fell below an objective standard of reasonableness, and that but for his counsel's errors, the outcome of the trial would have been different." "[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." A court need not address both prongs if the defendant makes an insufficient showing on one. With regard to appellate advocacy, appellate counsel is not obligated to "recognize and raise every conceivable constitutional claim." Additionally, a strategy designed to raise arguments more likely to succeed on appeal is "far from being evidence of incompetence" but rather is "the hallmark of effective appellate advocacy."
466 U.S. 668 (1984).
Guinn v. State, 882 A.2d 178, 181 (Del. 2005) (citing Strickland, 466 U.S. at 688, 694).
Albury v. State, 551 A.2d 53, 60 (Del. 1988) (quoting Strickland, 466 U.S. at 693) (emphasis supplied in original)).
Strickland, 466 U.S. at 697 (explaining that a court may address either the performance prong or the prejudice prong first).
Flamer v. State, 585 A.2d 736, 758 (Del. 1990).
Flamer, 585 A.2d at 758.
1. Failure To Raise Claims on Appeal
16. Defendant argues that his attorney failed to argue that child pornography may be inadvertently acquired and deleted, that it is not difficult to obtain, and the fact that it was found on his computer is not evidence of criminal activity on his part. He points to the Supreme Court's opinion, where the Court states:
Sisson does not dispute that: child pornography is difficult to obtain; that it is more likely to be retained and secreted by its possessor for longer periods of time than other types of contraband such as weapons or controlled substances; and that special computer programs used by police may recover it long after it was acquired and any attempts to delete it from the computer.
Sisson v. State, 903 A.2d at 298.
Defendant argues that this reflects the Supreme Court's view that an argument on inadvertent acquisition would have been persuasive. Defendant has read too much into the opinion. The portion of the opinion to which Defendant refers discusses whether the information supplied in the affidavit was such that a magistrate judge had a basis for finding probable cause to issue the warrant. The detectives stated in their affidavit that, based on their training and experience, individuals who collect child pornography rarely dispose of it, unlike other contraband. According to the Supreme Court, the police officer's explanation of the practices of child pornographers alone was sufficient to address any staleness concerns. No facts were presented during the suppression hearing to rebut the officer's factual assertions. An argument by appellate counsel to the contrary would not have impacted the outcome because the Supreme Court still would have held that the information set forth in the affidavit was not stale and that the illegal images apparently sent from and likely stored on Defendant's computer constituted evidence that Defendant had engaged in illegal activity.
Id.
Id.
Id.
17. Additionally, Defendant claims that appellate counsel should have challenged the reliability of AOL and NCMEC. Information supplied to police from anonymous informants must be accompanied by some indicia of reliability to support a finding of probable cause. When the information comes from a named citizen motivated by halting criminal activity, however, the information is presumptively reliable under Delaware law and no additional indicia of reliability is necessary. This Court ruled that AOL fell into the latter category of informants, named citizens, because it is a "recognized, well-established Internet provider." Additionally, trial counsel did not present any evidence to this Court indicating that AOL lacked reliability. With regard to NCMEC, this Court ruled that it did not qualify as an informant because it only forwarded the information it received from AOL to the DSP and did not add any additional facts. Therefore, NCMEC's reliability was not relevant to the probable cause determination. Defendant's appellate counsel stated in his affidavit that he did not believe that challenging the reliability of these two organizations would be a persuasive argument on appeal because they were not anonymous informants and, therefore, were not presumptively unreliable. This decision was well within counsel's discretion and was supported by the facts and applicable case law. Defendant has failed to prove that his counsel's decision not to make this argument fell below an objective standard of reasonableness or that an argument on this issue would have changed the Supreme Court's ruling.
Garner v. State, 314 A.2d 908, 911 (Del. 1973).
See State v. Quinn, 1995 WL 412355, at *4 (Del.Super.)("[U]nder Delaware law, there is a presumption of reliability of statements made by concerned citizens to police authorities given their interest in stopping criminal wrongdoing.").
State v. Sisson, 883 A.2d at 880.
Id.
Id.
D.I. 105, Affidavit of Appellate Counsel, at 6.
18. Defendant further claims that his appellate counsel should have argued that the detectives knowingly included false information in the affidavit. The Supreme Court stated "[b]efore the trial judge, Sisson also argued that the detectives knowingly included false information in the affidavit. The trial judge found otherwise and Sisson did not appeal this ruling." The Supreme Court correctly observed that trial counsel did argue that the affiants intentionally or recklessly included false information in the affidavit and that this Court rejected the argument. Defendant's appellate counsel explained in his affidavit that he did not "believe that a persuasive argument could be made that the detectives included false information in the affidavit — what is traditionally described as a " Franks" violation." Counsel also pointed out that Defendant did not identify or explain the "false information" to which he was referring in his motion for postconviction relief. Additionally, defendant's appellate counsel stated that he:
Sisson v. State, 903 A.2d at 296.
D.I. 105, Aff. of Appellate Counsel, at 2.
Id.
[D]id not see anything in the discussion in the affidavit about the nature of the internet and emails as "false" in the traditional Franks sense, and if it could be considered "misleading," it was because the warrant affidavit failed to disclose that the original email was unavailable, which
I would semantically characterize as essentially a " reverse Franks" argument.
Id., at 3.
This analysis is both legally sound and well within appellate counsel's strategic discretion. It is also supported by the factual record created below. Moreover, Defendant has failed to prove that appellate counsel's decision fell below an objective standard of reasonableness or that he was prejudiced as a result of counsel's strategic decisions.
19. It appears that Defendant's lone basis for arguing that appellate counsel was ineffective for declining to make a Franks argument is the Supreme Court's notation that the Franks ruling was not appealed. Defendant's reliance upon this language is misplaced. According to Defendant, the Supreme Court would not have employed certain language to highlight "counsel's deficiencies" if these deficiencies were not material to Defendant's case. The language that Defendant points to for support of this argument appears in a footnote and is nothing more than an observation of which legal issues were before the Supreme Court and which issues were not. To the extent the Supreme Court believed that a Franks violation had occurred, or may have occurred, the Supreme Court would not hesitate to say so directly.
D.I. 27, at 5.
See e.g. State v. Carey, 11 A.2d 26, 28 (Del. 1955) (court remanding case to consider possible constitutional violation not specifically raised on appeal).
20. Defendant also alleges his appellate counsel should have argued that the affidavit of probable cause was deficient for failing to disclose information regarding Defendant's username and information regarding identity theft and spoofing. This argument ignores the Supreme Court's opinion. While the Supreme Court mentioned that appellate counsel did not make the spoofing argument, it also indicated that it agreed with this Court's determination that these arguments "have no merit." The Supreme Court also held that even if the spoofing information was omitted from one affidavit of probable cause with a reckless disregard for the truth, "the omissions were simply not material."
Sission v. State, 903 A.2d at 300 n. 33.
Id., at 303. Defendant also alleges that failing to include this information in the affidavit amounted to prosecutorial misconduct. He does not provide any argument on this assertion or any supporting facts. The Court sees absolutely no basis in the record to support a claim of prosecutorial misconduct and will not address the merits of the argument because Defendant has failed to provide any legitimate reason to do so.
21. Finally, Defendant contends that his appellate counsel should have argued that the detectives acted with reckless disregard for the truth by not acknowledging that they did not have the IP address of the computer that sent the illegal email. Defendant bases this argument on the portion of the Supreme Court's opinion that states,
[i]t does not appear that Sisson is arguing that the DSP detectives acted with reckless disregard for the truth by failing to include the IP address . . . [r]ather, Sisson's argument appears to be that the IP address was required to establish the link between the email sent from "letsrolearound" because the specter of "spoofing" made it possible that Sisson did not send the email. Thus, Sisson concludes, only the IP address plus the username (or perhaps the IP address standing alone) would be sufficient to provide probable cause to search his home computer.
Id., at 304.
Defendant's argument fails, initially, because the Court was not commenting on the effectiveness of appellate counsel's argument but rather was merely clarifying the scope of the argument before giving its analysis. Secondly, the Court would have reached the same conclusion regardless of the manner in which Defendant's appellate counsel constructed the argument. The essence of the reverse Franks argument was that the affidavit of probable cause was deficient because it did not set forth the IP address of the computer that sent the illegal email. The Supreme Court rejected the factual predicate of this argument and held that the IP address was not necessary for a finding of probable cause.
Id., at 308.
2. Failure Properly To Argue Issues on Appeal
22. Defendant also alleges that his appellate counsel failed properly to argue certain issues on appeal and that the Supreme Court would have reversed his convictions had these issues been presented correctly. Defendant contends that his counsel improperly argued that to engage in email spoofing, the spoofer would need to know the corresponding password for a given username before he could send an email in that name. Defendant correctly observes that his appellate counsel did "suggest that a potential spoofer would need the username and the password associated with that username in order to "spoof"." Nevertheless, his argument is misplaced because before beginning its analysis, the Supreme Court expressly stated "[f]or purposes of this opinion, we will assume that it is the latter type of password-not-required-spoofing that Sisson is attempting to describe." The Supreme Court conducted its analysis as if appellate counsel had argued that to engage in email spoofing, the "spoofer" would not need to know the password of the "spoofee." Defendant's characterization of the Supreme Court's opinion is unfounded and his corresponding argument is without merit.
Id., at 300 n. 32.
Id.
23. Defendant also avers that his counsel should have distinguished State v. Evers from his circumstances. He bases this argument on the section of the Supreme Court's opinion that states "[b]efore this Court, Sisson appears to concede that Evers is factually analogous, but suggests that we should look to the analysis in Evers and no to the result ." This argument fails because Defendant, again, has taken the Supreme Court's language out of context. The Supreme Court correctly indicated that Defendant's trial counsel did attempt to distinguish Defendant's case from the facts in Evers, but that "the trial judge properly concluded that Evers was not distinguishable." This statement indicates the Supreme Court's independent review of Evers and its agreement with this Court's reliance upon the decision. The Supreme Court went on to state that "we decline to adopt what Sisson calls the "analysis" of Evers as opposed to examining its "result.""
Id., at 305.
Id.(emphasis added).
Id., at 306.
24. Defendant next alleges that his appellate counsel failed properly to argue that a username alone was insufficient to establish a nexus between Defendant's residence and computer. Specifically, Defendant argues that his appellate counsel should have more clearly explained that the password for an AOL account is often stolen and misused. Once again, Defendant has mischaracterized the Supreme Court's opinion:
Accordingly, we hold on the facts of this case, that: (i) the "letsrolearound" username, together with (ii) the Florida AOL billing address linking Sisson to that username, (iii) the fact that the DSP traced Sisson to his Hockessin address through driving records, and (iv) the fact that Sisson was the principal in a computer business with a drop box as the listed address, provided the magistrate with a substantial basis for concluding that a fair probability existed that there was a computer in Sisson's residence upon which images of child pornography might be found.
Id., at 308.
To establish probable cause, the affiant need only demonstrate a probability, not a prima facia showing, of criminal activity. Defendant's username was linked to a billing address that was eventually traced to Defendant's home address. While identity theft was a possible explanation for how the illegal email was sent from the username "letsrolearound," it was more probable that the email was sent from the account matching Defendant's billing address. The Supreme Court found this evidence was sufficient to substantiate a finding of probable cause, and an argument concerning password manipulation and/or identity theft would not have changed this analysis.
Jensen v. State, 482 A.2d 105, 112 (Del. 1984).
25. Finally, Defendant contends that his appellate counsel failed properly to address the minimum sentencing disparity created by the language of 11 Del. C. § 1108. The Supreme Court concluded that in adopting Section 1108 the General Assembly demonstrated its intent to "curtail the proliferation of child pornography; " and then observed that the "per-visual-depiction unit of prosecution more effectively serves this purpose than does the per-photo-session unit of prosecution." The Supreme Court based this determination on the fact that "[t]he more instances of visual depictions in existence, the higher the possibility for the proliferation of child pornography." Because the Supreme Court concluded that this "disparity" was intended by the General Assembly, there was no multiplicity argument (or variation thereof) that appellate counsel could have made that would have reversed the result.
Sisson v. State, 903 A.2d at 312.
Id.
Defendant also alleges that this statute creates a minimum sentencing disparity, an illegal sentence, and cruel and unusual punishment. The Supreme Court offered a clear interpretation of the statute in its opinion and held that the disparity to which Defendant refers was intended by the General Assembly given the fact that photographs may be distributed more easily than video. Nothing in the Supreme Court's opinion suggests that Defendant's late-proffered "minimum sentencing disparity" argument would have led the court to a different construction of the statute.
B. Defendant's Request For Appointment of Counsel
26. Defendant also requests that the Court appoint counsel due to the legal complexity of his claims. In Delaware, the law is well settled "that there is no constitutional right to counsel during post-conviction proceedings." Pursuant to Rule 61(e)(1), the court will appoint counsel only in the exercise of its discretion and for good cause shown. Defendant has failed to meet the good cause standard because none of the arguments he has raised come close to satisfying the burden imposed on him by Strickland v. Washington to establish ineffective assistance of counsel. The legal and factual issues he has presented are neither novel nor complex.
Floyd v. State, 1992 WL 183086, at *1 (Del. July 13, 1992).
27. Based upon the foregoing, Defendant's motion for postconviction relief and request for court appointed counsel are DENIED.
IT IS SO ORDERED.