Opinion
IN00-05-1260-1285 and IN00-05-1752-1755 (ID. No. 0005008005)
Submitted: June 10, 2002
Decided: June 14, 2002
Upon Consideration of Defendant's Motion for Recusal DENIED.
Upon Consideration of Defendant's Motion To Vacate Sentence DENIED.
Donald Roberts, Esq. and Colleen Norris, Esq., Wilmington, Delaware, Attorneys for State.
Joseph Hurley, Esq., Wilmington, Delaware, Attorney for Defendant.
ORDER
Upon consideration of the defendant's motions to vacate sentence and for recusal, and the record of the case, it appears that:
1. On May 23, 2002, the defendant was sentenced to eight years at Supervision Level V, followed by probation, for his convictions on fifteen counts of Unlawfully Dealing in Material Depicting a Child Engaging in a Prohibited Sexual Act and fifteen counts of Possession of Child Pornography. He has filed two motions, one asking the Court to vacate his sentence and the other asking me to recuse myself from further proceedings involving him. The motion for recusal is applicable to two cases, this one and a separate case involving theft charges for which the defendant is scheduled to stand trial on July 23.
This offense is now entitled Unlawfully Dealing in Child Pornography and will be referred to by that name hereafter.
The defendant was a lawyer practicing in New Castle County. It has been the practice of the Court for the President Judge to assign cases involving lawyers to a judge from another county.
2. In his motions, the defendant argues that I should disqualify myself from his cases under Canon 3.C.(1)(a), which reads in relevant part as follows:
C. Disqualification. (1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) The judge has a personal bias or prejudice concerning a party . . . .
3. In his motion the defendant contends that an interrelationship between a notation in his psychiatric records and the length of the sentence he received creates an appearance of bias on my part. The psychiatric records involved were attached as an exhibit to the pre-sentence report. They contain the following notation dated March 27, 2002, which was shortly after the defendant's trial:
Discouraged re his perception that Judge granted prosecution `everything they wanted' + feels he didn't get treated fairly . . . .
The heart of the defendant's argument is set forth in paragraphs seven and eight of his motion, which read as follows:
7. While ascribing no sinister motives to the sentencing Judge, the defendant observes, with great distress, that a reasonable person would conclude, notwithstanding subjective reality to the contrary, that a sentencing Judge who, within hours of having reviewed written material criticizing the fairness of that Judge and ascribing unethical conduct on the part of the Judge would experience a negative emotional reaction to the individual. Both common sense and considerations of human nature lead to the conclusion that a reasonable person would reach that conclusion whether or not it is accurate. Case law supports the proposition that it is not the reality alone that demands recusal, but the mere appearance of bias demands recusal as well.
8. Defense counsel wishes to make it abundantly clear that the defendant nor counsel ascribes unethical conduct on the part of the sentencing Judge. The defendant contends that public confidence, and which is the basis of this particular provision of the Delaware Judges' Code of Judicial Conduct required that the sentencing Judge should have notified the parties that he was aware of this potential source of bias and given the parties the opportunity to share their views and conducted the analysis that is required by the Code of Judicial Conduct as well as Delaware case law. Without having to even approach the first consideration; viz., subjective believe, the defendant maintains that a review of the second prong of the analysis required recusal in this matter. Parenthetically, the defendant notes that the sentence imposed by the Court was more than one hundred percent greater than any sentence previously given, in the Delaware Court System, for offense of this genre and which would only tend to buttress a public perception that the defendant's intemperate remarks criticizing the sentencing Judge and which were inadvertently communicated to the sentencing Judge, indeed, "struck a responsive chord".
The footnote in the defendant's motion reads as follows: The defendant contends that any observer of the judicial system would consider it unethical for a Judge to include considerations of personal antagonism or irritation as part of the sentencing process.
4. When a claim of personal bias or prejudice is presented under Canon 3.C.1(a), the judge must engage in a two-part analysis. First, he must satisfy himself that subjectively he can hear the cause without bias or prejudice. Second, he must determine whether there is the appearance of bias sufficient to cause doubt as the judge's impartiality. I will first, however, discuss the disclosure issue referred to in paragraph eight of the motion.
Los v. Los, 595 A.2d 381, 384 (Del. 1991).
5. The defendant argues that the Court should have disclosed to the parties the fact that the psychiatric records contained a notation in which the defendant made statements critical of me. This implies that it was not disclosed. However, the records with the notation were disclosed. Except for the evaluation page and the sentencing recommendation, the entire pre-sentence report was available to defense counsel for his review prior to sentencing. In addition, the State correctly points out in its response in opposition to the motions that defense counsel stated in his remarks at the time of sentencing that the defendant had experienced feelings of hostility toward me, as judge, because of this case. I do not think that the defendant's argument that the notation was not disclosed, or that it should have been more disclosed, has any merit; and it is rejected.
6. As to the subjective test, I have no bias or prejudice against the defendant. I have no personal view of animosity or irritation toward Mr. Fink at all. The above-mentioned notation in his psychiatric records did not enter into my deliberations concerning his sentence and had no bearing whatsoever on the sentence I imposed.
7. As to the objective test, a relevant principle is that bias or prejudice must come from some extrajudicial source and result in an opinion on the merits of a matter on some basis other than what the judge learned in the case. Here the psychiatric records were made a part of the pre-sentence report by the pre-sentence officer and are a part of the case. Aside from this principle, however, it is also generally held that comments which a defendant makes critical of a judge, threats or insults directed to a judge, or even threats of violence against a judge do not require disqualification. In this case, the defendant's comments to his psychiatrist are no doubt his reaction to rulings adverse to him which I made at and before trial. No appearance of impropriety arises from the fact that I sentenced the defendant after having reviewed a pre-sentence report which included the above-mentioned notation.
Id. at 384.
Jeffrey M. Shaman, et al., Judicial Conduct and Ethics § 4.06 (3rd ed. 2000).
8. The defendant's proportionality argument concerning the length of his sentence is based upon a letter from the Delaware Budget Office, Statistical Analysis Center, which states that in 1999 there were four cases with sentences for Unlawfully Dealing in Child Pornography, that in one case involving two charges the defendant received a three year Level V sentence, and in three cases the defendant received a Level III sentence. This information alone, without more, however, is too insufficient for any reasonable comparison. The sentences given are only for one year. The letter does not indicate whether the sentences for Unlawfully Dealing in Child Pornography are lead sentences or secondary sentences to other crimes. It does not indicate whether these cases were the products of plea agreements with agreed sentences. If they are from plea agreements, no information is given as to the number of original charges. In one of the cases mentioned, the defendant received three years at Level V for two charges. Here the defendant was convicted of fifteen charges of Unlawfully Dealing in Child Pornography and thirty felony charges altogether. The sentence imposed in this case was entirely within the presumptive sentencing guidelines. In addition, although the defendant was not aware of it when he filed his motion, he, or his attorney, is now aware that the eight years of Level V imposed was within six months of the Level V time recommended in the pre-sentence report. When the issue is alleged personal bias on the part of the judge, an unexplained sentence greatly in excess of the recommended sentence might be one thing, but that is not the case here. No appearance of impropriety arises from the fact that the defendant was sentenced to eight years at Level V in this case.
After the motion was filed, the evaluation section of the pre-sentence report and the recommended sentence were made available to counsel for the State and the defense for their inspection.
9. I am also satisfied that when the notation in the psychiatric records and the length of the sentence are considered together with other relevant factors, such as those mentioned above, there is no appearance of bias in the defendant's sentence. Therefore, the defendant's motion for recusal will be denied. The motion to vacate the sentence is predicated on the grant of the motion for recusal. It will, therefore, also be denied. A separate order will be issued regarding the request that I recuse myself from the case on the theft charges under that case's criminal action numbers.
10. Under our sentencing structure, Unlawfully Dealing in Child Pornography is a violent, Class D felony. Based upon the facts and circumstances of this case, including the evidence presented at trial, the pre-sentence report, and the comments at sentencing, it was my considered judgment that a substantial period of time at Level V, as recommended in the pre-sentence report, was appropriate. If the defendant believes that the sentence lacks proportionality to those given other defendants similarly situated, his remedy is to file a motion for reduction of sentence under Superior Court Criminal Rule 35 and give the Court information which will be more helpful in evaluating that issue. He is, or course, entitled to file a motion under Rule 35 on any other grounds as well.
11. The pre-sentence report is made a part of the record in this case, under seal.
12. Therefore, the defendant's motions to vacate sentence and for recusal are denied.
IT IS SO ORDERED.