Opinion
No. 0005008005.
Submitted: November 5, 2003.
Decided: February 20, 2004.
Donald R. Roberts, Esq., Wilmington, Delaware. Attorney for the State.
Joseph Hurley, Esq., Wilmington, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the defendant's motion for reduction of sentence under Superior Court Criminal Rule 35, the State's opposition, and the record of the case, it appears that:
1. The defendant was convicted by a jury of 15 counts of Unlawfully Dealing in Materials Depicting a Child Engaged in a Prohibited Sexual Act ("Unlawfully Dealing in Child Pornography") and 15 counts of Possession of Child Pornography. After a pre-sentence investigation, he was sentenced to incarceration at Level V on each count, suspended after a total of eight years, followed by probation. The eight years was comprised of unsuspended terms of two years of imprisonment on each of the first four counts of Unlawfully Dealing in Child Pornography. He now moves for reduction of sentence, contending, in substance, that his sentence is excessive and disproportionate to other sentences given to similarly situated defendants.
This offense is now known as Unlawfully Dealing in Child Pornography.
2. The defendant was in possession of approximately 190 images of child pornography stored on computer discs found in his home. The Attorney General selected 30 as the number of offenses which would be prosecuted, 15 for Unlawfully Dealing in Child Pornography and 15 for Possession of Child Pornography. Possession by means of a computer is the element which elevates Possession of Child Pornography to the more serious offense of Unlawfully Dealing in Child Pornography. Each image is a separate offense.
3. Unlawfully Dealing in Child Pornography is a Class D felony, punishable by up to eight years of imprisonment for each offense. Under 11 Del. C. § 4201(c), it is designated as a violent felony. The presumptive initial level of supervision under the sentencing guidelines is Level V. The presumptive sentence length is up to two years at Level V for each offense. Possession of Child Pornography is a Class F felony, punishable by up to three years of imprisonment for each offense. The presumptive initial level of supervision under the sentencing guidelines is Level V. The presumptive sentence length is up to nine months at Level V for each offense. In the defendant's case, therefore, a sentence of anywhere up to 41 years and three months of imprisonment would be entirely within the sentencing guidelines.
4. In his motion for reduction of sentence, the defendant urges the Court to consider mitigating factors including "no prior convictions," "treatment need exceeds need for punishment," and "could lose employment." He also discusses a number of other cases which, he contends, support his claim that his sentence is disproportionate in relation to sentences for like offenses given to other defendants. He also discusses other factors which he contends should lead to a reduction in sentence. I have taken into account all of the factors which the defendant discusses in his motion and supplements. His wife has also submitted a letter in support of his motion.
5. In his original motion, the defendant states that of four defendants previously convicted of Unlawfully Dealing in Child Pornography, three received probation and one received a sentence of three years at Level V. This latter defendant, he contends, was found to be in possession of over 1000 images of child pornography stored on his computer. The State, in response, indicates that the case involved a negotiated plea agreement with an agreed sentence under Superior Court Criminal Rule 11(e)(1)(c).
This rule has since been abolished.
6. In a supplement to his motion, the defendant describes six cases, one of which appears to be the case just mentioned, in which defendants convicted of Unlawfully Dealing in Child Pornography received sentences of four, three or two years at Level V. These cases, as reported by the defendant, also involved possession of large amounts of child pornography.
7. In another supplement, the defendant discusses a case in which a defendant sentenced on seven counts of Unlawfully Dealing in Child Pornography was sentenced only to six months at Level V. In a response to the motion, the State sets forth factors which it contends distinguish this case.
8. In another supplement, the defendant discusses cases in which two other defendants who were in possession of large amounts of child pornography by means of a computer were given probation. The second of these two cases mentioned by the defendant involved a sentence imposed after a pre-sentence investigation. The Court is aware of one other case in which a defendant who admitted that he had downloaded about 300 images of child pornography was sentenced to probation after a pre-sentence investigation.
9. The fact that defendants in other cases have been sentenced to less than the presumptive initial level of supervision, that is, to less than Level V, does not lead me to the conclusion that it is appropriate to do so in this case. The child pornography introduced into evidence in this case showed a cruel, pitiless, degrading abuse of children. The defendant's voluntary act of possessing the images by use of a computer is fully deserving of its statutory classification as a violent, Class D felony. While mitigating factors do exist, I am not persuaded that they call for a sentence below the presumptive initial level, Level V. A sentence below the presumptive initial level would unduly depreciate the seriousness of the offense.
10. After considering all factors discussed by the defendant and the State in their submissions, I have concluded, however, that a reduction of from eight years of unsuspended Level V to six years of unsuspended Level V is appropriate. A modified sentence order will be issued which suspends the two years of unsuspended Level V time in Criminal Action No. IN00-05-1260. I am not persuaded that any further reduction is warranted.
11. Therefore, the defendant's motion for reduction of sentence is granted in part.