Opinion
I.D. No. 0610021280.
Submitted: January 5, 2007.
Decided: April 10, 2007.
Upon Defendant's Motion to Dismiss. Granted in part; Denied in part.
R. David Favata, Esquire, Department of Justice, Dover, Delaware; attorneys for the State.
Sandra W. Dean, Esquire, Office of the Public Defender, Dover, Delaware; attorneys for the Defendant.
ORDER
Defendant, Edward Rutledge, filed this Motion to Dismiss all pending charges based on the theories of unreasonable delay, collateral estoppel, and due process.
Facts
Defendant was arrested on November 21, 20 05. Several DVDs, VHS tapes, CD Rom disks, floppy disks and two computers were seized and placed into evidence storage. Defendant was charged with numerous counts of Computer Child Pornography, Possession of Child Pornography, Sexual Exploitation of a Child and Possession of a Firearm by Persons Prohibited. Defendant entered guilty pleas to two counts of Computer Child Pornography and four counts of Possession of Child Pornography; the remaining charges were nolle prosed. He was subsequently sentenced on March 29, 2006 as a habitual offender to 16 years at Level 5, followed by 6 months at Level 4 Home Confinement, followed by 18 months at Level 3 probation. He is currently incarcerated.
In October of 2006, a detective was going through the tapes found in Defendant's home ostensibly for the purpose of disposing them. On one of the tapes he found a home video that had been taped over a commercial movie which depicted the Defendant engaging in sexual activity with a minor. Defendant was arrested on October 26, 2006 and charged with two counts of Rape in the First Degree, Dangerous Crime against a Child, Sexual Exploitation of a Child, two counts of Unlawful Sexual Contact in the Second Degree, Endangering the Welfare of a Child, and Possession of Child Pornography.
Defendant's Contentions
The Defendant has filed a Motion to Dismiss all charges stating three separate grounds for dismissal. The first is unreasonable delay in prosecuting. Defendant argues that his arrest date was November 21, 2005 and the Indictment wasn't filed until December 4, 2006. Defendant contends that one year is an unreasonable delay on the prosecution.The second ground is based on collateral estoppel. Defendant contends that once a party has litigated a cause of action it is prohibited from relitigating a second cause of action concerning facts that were in existence and which were in the possession of the State at the time of the first case, relying on Sander v. Malik . Defendant argues that because the tape depicting the rape was in the possession of the State at the time of the plea bargain regarding other tapes and computer files that the State may not now bring more charges based upon the newly discovered tape.
711 A.2d 32 (Del. 1998).
The final argument is due process. The Defendant argues that once he entered the plea the State could not later bring more serious charges based on Johnson v. State .
396 A.2d 163 (Del. 1978).
Discussion
Defendant's first argument, unreasonable delay, is not appropriate in this case. Defendant argues that he was arrested on November 21, 2005. However, he was not arrested for these charges on that date. Defendant was arrested when the detective discovered the crimes on October 26, 2006 and indicted on December 4, 2006, approximately five weeks later. Therefore, there was no unreasonable delay and as a consequence he has not been prejudiced.
Defendant's second argument must also fail. Defendant misstates the rule of law cited in Sander v. Malik . The Court in Sander held that "the doctrine of collateral estoppel essentially prohibits a party who has litigated one cause of action from relitigating in a second cause of action matters of fact that were, or necessarily must have been, determined in the first action." Possession of the evidence by the State during the first litigation does not prohibit the State from bringing new charges for crimes just discovered and not already decided by the prior litigation. It is obvious that no issues of fact were determined in the earlier case affecting this matter since the tape was not discovered.
Id. at 33.
The law as stated in Johnson is also misapplied by the Defendant. Johnson dealt with a defendant who was originally indicted "for attempted murder, second degree, two counts of robbery, second degree, and two counts of conspiracy, second degree." He was subsequently found guilty on all counts and then appealed and received a new trial. The State then re-indicted defendant with the more serious charges of attempted murder, first degree, two counts of robbery, first degree, and two counts of conspiracy, second degree." The Court went on to cite Blackledge v. Perry stating that "a person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration." In the present case there was no appeal filed by the Defendant. The Defendant was not attempting to pursue any statutory right at the time these charges were filed. In this case we have newly discovered evidence that uncovers an alleged crime significantly different from the crimes that Defendant was previously charged with. These are not more serious charges of those that were already charged, they are completely unrelated to the first set of charges.
Johnson, 396 A.2d at 164.
Id.
Id. citing Blackledge v. Perry, 417 U.S. at 27-8, 94 S. Ct. at 2102.
However, Defendant entered into his plea bargain with the expectation that all pending charges would be resolved. Therefore, the State cannot now bring additional charges of Sexual Exploitation and Possession of Child Pornography. It is clear to the Court that these charges could have been resolved in the first plea as the expectation of the Defendant makes it even more clear. The remaining charges of two counts of Rape in the First Degree, one count of Dangerous Crime Against a Child, two counts Unlawful Sexual Contact in the Second Degree, and one count of Endangering the Welfare of a Child regard entirely different crimes then those charged at the time of the plea bargain and should remain on the Indictment. The facts were not presented and decided in the prior plea agreement. These are new crimes committed by Defendant and involve separate facts from those needed for the prior charges. The State may therefore proceed on those charges.
Therefore, Defendant's Motion to Dismiss is granted in part and denied in part. IT IS SO ORDERED.