IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE
KENNETH E. FINK,
ID No. 0804022489
Submitted: May 5, 2010
Decided: July 30, 2010
Richard G. Andrews, Esquire, Department of Justice, Wilmington,
Delaware, Attorney for the State.
Kenneth E. Fink, pro se.
In December, 2008 Defendant Fink pled guilty to one count of
Unlawfully Dealing in Child Pornography, and shortly thereafter was
sentenced to a term of imprisonment. He has now filed a Rule 61 motion
challenging his conviction arising from his guilty plea. He asserts three
grounds for this challenge: (1) the State did not advise his lawyer of a
Delaware Supreme Court opinion which Fink believes would have been
helpful to him; (2) the State failed to “prove” each element of the offense;
and (3) his conviction violated his constitutional right to be free from double
jeopardy. The Court believes there is no merit to Fink’s arguments.
Nonetheless it will not reach the substantive issues because Fink’s
arguments are procedurally barred.
This matter arises from Fink’s second conviction for child
pornography offenses. His first conviction arose out of a Department of
Justice investigation of Fink, who was then a member of the Delaware Bar, 1
for theft of client funds. As part of that investigation the State obtained a
search warrant permitting the seizure of, among other things, two computers
and related devices located in Fink’s home. Thereafter the police obtained
Fink was later disbarred.
another warrant permitting them to search Fink’s computers. They found
more than 190 images of child pornography during the ensuing search.
Fink was charged with various child pornography offenses and tried
before a jury which convicted him of 15 counts of Unlawfully Dealing in
Child Pornography (in violation of 11 Del. C. §1109) and 15 counts of
Possession of Child Pornography (11 Del. C. §1111). He was sentenced to
prison followed by a lengthy probation. Fink’s conviction was affirmed on
direct appeal, and Fink’s later Rule 61 motion in this court as well as his
federal petition for a writ of habeas corpus were unavailing.
Turning to the instant matter, Fink was arrested a short while after his
release from prison when child pornography was again found on his
computer. He was soon indicted by the grand jury on ten counts of
Unlawfully Dealing in Material Depicting a Child Engaged in a Prohibited
Sexual Act in violation of 11 Del. C. §1109(4). Each count carried with it
the potential for a minimum of two years and a maximum of 25 years
imprisonment. In December, 2008 Fink pled guilty to one count, and the
State entered a nolle prosequi to the remaining nine counts. He was
sentenced to a term of imprisonment, followed by probation.
Fink filed the instant Rule 61 motion along with a supporting
memorandum to which the State responded. The matter was referred to a
Court Commissioner who found that Fink’s motion was procedurally barred
and recommended denial of Fink’s application. Fink objected to the
Commissioner’s Report and Recommendation. The Court agrees with the
Commissioner that Fink is not entitled to any relief.
Fink brings his motion for postconviction relief pursuant to Superior
Court Criminal Rule 61. That rule contains procedural bars which are
intended to promote finality to criminal litigation and to relieve this Court
from the burden of repetitive motions which, more often than not, are
lacking in substantive merit. 2
Needless to say consideration of the
substantive merits of motions which are procedurally barred would defeat
the purposes of those bars. Accordingly, the Delaware Supreme Court
requires this Court to first determine whether the defendant’s arguments are
procedurally barred and to reach the merits of an argument if, and only if,
the court first determines it is not barred.
Fink’s arguments are barred because he failed to raise them before he
entered his guilty plea. Not surprisingly, Fink now seeks refuge in two
narrow exceptions to the applicable bar, but neither affords him any help.
The exceptions do not apply because Fink cannot show cause for his failure
Super. Ct. Crim. R. 61(i)(1)-(4).
to timely raise them and, in light of his guilty plea, he cannot show a
colorable constitutional error which resulted in a miscarriage of justice.
A. Defendant’s substantive arguments
As mentioned earlier, Defendant advances three substantive theories
in support of his motion for postconviction relief.
1. Defendant argues that the State failed to bring to
his attention the Delaware Supreme Court’s opinion
in State v. Dittie. 3 He contends that had he known
about Dittie he would have sought dismissal of the
Unlawfully Dealing in Child Pornography charges against
him in favor of the less serious charges of Possession of
Child Pornography. Fink analogizes the purported failure of
the State to bring Dittie to his attorney’s attention to the
concealment of exculpatory evidence.
2. Fink’s second argument is related to his first. He argues that
the State could not prove every element of the charges
against him. According to Fink, Dittie engrafts onto the
statute defining Unlawful Dealing in Child Pornography a
requirement that the State prove that Fink intended there to
1987 WL 37890 (Del. Supr.).
be a two-party transaction involving the pornography. He
claims the State could not prove this element of the offense.
3. Finally Defendant asserts that he was subjected to double
jeopardy because possession of child pornography on a
computer constitutes both the crime of unlawful dealing and
the separate crime of possession. He argues that the
constitution prohibits him from being placed in jeopardy for
two separate crimes for the same act.
B. The procedural bars in Rule 61
Rule 61 contains four primary procedural bars. First, it bars claims
for postconviction relief filed more than one year after the conviction
becomes final; second, in instances in which the defendant has filed more
than one motion for postconviction relief, it bars claims not presented in the
earlier motions; third it bars claims which were available to the defendant
and which were not presented in a timely fashion in the proceedings leading
to the defendant’s conviction; and fourth, in the criminal law equivalent of
res judicata, the rule bars consideration of claims previously presented and
decided in the case. 4
Each of these procedural bars has at least one
exception which is peculiar to that bar. In addition, there is an overarching
Super. Ct. Crim. R. 61(i)(1)-(4).
exception—sometimes referred to as the “miscarriage of justice”
exception—applicable to all of the procedural bars except the res judicata
Fink’s claims are barred by the provision in Rule 61(i)(3) which
precludes this court from considering claims available to the defendant but
which were not raised during the proceedings leading to the adjudication of
his guilt. That provision provides
Any ground for relief not asserted in the proceedings leading to the
judgment of conviction, as required by the rules of this court, is thereafter
barred, unless the movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant’s rights. 5
The purpose of this rule is to prevent a criminal defendant, either by neglect
or design, from withholding arguments for use, if need be, until after his or
her conviction. It is undisputed that Fink’s arguments were not presented
when he entered his guilty plea, and therefore, are procedurally barred unless
he can find refuge in either of two exceptions to this bar.
The first exception requires Fink to demonstrate both “cause” and
prejudice” under Rule 61(i)(3). In order to show “cause,” a movant must
show “some external impediment” which prevented him from raising the
Id. at 61(i)(3).
If the movant fails to demonstrate cause, the Court need not
consider the prejudice prong. 7
Fink argues that cause for his failure to cite Dittie exists because the
State did not disclose the existence of that opinion to him. He analogizes the
Dittie opinion to exculpatory evidence and theorizes that under Brady v.
Maryland 8 and its progeny the State was obligated to disclose the opinion to
him. This argument fails for either of two reasons. First, there is no known
authority holding that a publicly available judicial opinion constitutes
“evidence” within the meaning of Brady. 9 Second, Dittie appears on both
the Lexis and Westlaw 10 services and therefore was equally available to the
State and Fink. 11 Consequently the purported failure State not bring Dittie
to Fink’s attention cannot constitute a Brady violation. 12 Therefore, Fink
fails to establish cause and his Dittie claims are bared by Rule 61(i)(3).
Furthermore, Fink’s arguments based on Dittie do not warrant
consideration under Rule 61(i)(5). Subpart (5) of Rule 61(i) provides:
Younger v. State, 580 A.2d 552, 556 (citing Murray v. Carrier, 477 U.S. 478, 492
State v. Eley, 2002 WL 337996 (Del. Super.).
373 U.S. 83 (1963).
Fink cites no such authority.
1987 Del. LEXIS 1178; 1987 WL 37890 (Del. Supr.).
Fink does not claim ineffective assistance of counsel; rather he states that he had some
of the best criminal defense lawyers available.
See Flonnery v. State, 893 A.2d 507, 532 (Del. 2006) (stating that Brady does not
require the government to provide defendants with evidence they could otherwise obtain
by exercising reasonable diligence).
The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall
not apply to a claim that the court lacked jurisdiction or to a colorable
claim that there was a miscarriage of justice because of a constitutional
violation that undermined the fundamental legality, reliability, integrity or
fairness of the proceedings leading to the judgment of the conviction. 13
Fink attempts to invoke this exception by equating the State’s failure
to make him aware of Dittie to a Brady violation. However, as stated above,
there is no basis for this analogy.
Fink also argues that under Dittie there was a due process violation
because the State failed to prove all of the elements of the offense. He
theorizes that the State could not prove that he intended to engage in a twoparty transaction involving the child pornography in his possession.
Assuming for the sake of argument that this is an element of the offense, 14
his argument is foreclosed by Fink’s guilty plea. Fink cites cases which hold
that a guilty plea will not bar a claim that there is a constitutional deficiency
apparent from the indictment. 15
However, as Fink acknowledges, these
cases do not apply when it is necessary for the court to go beyond the
Super. Ct. Crim. R. 61(i)(5).
Because of Fink’s procedural default, the Court does not reach the issue whether this
is, in fact, an element of the offense.
Def. Mot. for Postconviction Relief, at 6-8 (citing Menna v. N.Y., 423 U.S. 61 (1975);
Blackledge v. Perry, 417 U.S. 21 (1974); U.S. v. Pickett, 941 F.2d 411 (6th Cir. 1991);
Mack v. U.S., 853 F.2d 585 (8th Cir. 1988); U.S. v. Hovey, 674 F. Supp. 161 (D. Del.
indictment. 16 In Fink’s case, it would be necessary for the Court to go
outside of the indictment in order to determine whether Fink engaged in a
two-party transaction involving the child pornography in his possession.
Consequently, Fink’s guilty plea precludes review of this claim. Both Fink’s
Dittie claims are therefore barred and the Court will not consider them under
Turning briefly to Fink’s double jeopardy claims, it is again
undisputed that those were not presented when Fink entered his plea. Fink
does not even make a pretense of showing cause for his failure to timely
raise this ground. It too is therefore procedurally barred by Rule 61(i)(3).
In addition, this claim does not warrant consideration under Rule
61(i)(5) because it is not a colorable constitutional claim. Fink contends that
his single act could have resulted in a finding of guilt under both 11 Del. C.
§1109 (Unlawfully Dealing in Child Pornography) and 11 Del. C. §1111
(Possession of Child Pornography). The theoretical merit of this argument is
of no moment here because Fink was only indicted under §1109 and
therefore never subjected to the possibility of double jeopardy under his
Def. Mot. for Postconviction Relif at 7 (citing U.S. v. Broce, 488 U.S. 563, 576
Accordingly, the Court hereby accepts the Commissioner’s report and
recommendation and Defendant’s motion for postconviction relief is
IT IS SO ORDERED.
John A. Parkins, Jr.