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Pabst v. State

Supreme Court of Delaware

April 17, 2014

TIMOTHY J. PABST, Defendant Below-Appellant,
v.
STATE OF DELAWARE, Plaintiff Below-Appellee

Submitted March 13, 2014.

Motion for Rehearing filed 4/28/14; Denied 5/1/14. Case Closed May 5, 2014.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Court Below--Superior Court of the State of Delaware, in and for Sussex County. Cr. ID 1304021903.

Before HOLLAND, BERGER and RIDGELY, Justices.

OPINION

Randy J. Holland, Justice.

ORDER

This 17th day of April 2014, upon consideration of the appellant's Supreme Court Rule 26(c) brief, the State's response thereto, and the record below, it appears to the Court that:

(1) The defendant-appellant, Timothy Pabst, pled guilty on October 23, 2013 to three counts of Dealing in Pornographic Materials Involving Children. The Superior Court sentenced him to a total period of seventy-five years at Level V incarceration to be suspended after serving six years in prison for decreasing levels of supervision. This is Pabst's direct appeal.

(2) Pabst's counsel on appeal has filed a brief and a motion to withdraw pursuant to Supreme Court Rule 26(c). Counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. bye letter, Pabst's attorney informed him of the provisions of Rule 26(c) and provided Pabst with a copy of the motion to withdraw and the accompanying brief. Pabst also was informed of his right to supplement his attorney's presentation. Pabst has raised several issues for this Court's consideration. The State has responded to Pabst's issues, as well as to the position taken by Pabst's counsel, and has moved to affirm the Superior Court's judgment.

(3) The standard and scope of review applicable to the consideration of a motion to withdraw and an accompanying brief under Rule 26(c) is twofold: (a) this Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims; and (b) this Court must conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.[1]

(4) The record reflects that, on April 14, 2013, Pabst's ex-wife discovered the parties' then-seven-year-old daughter watching pornography on a computer in her home. The child told her mother that her father had shown her pornographic material on the computer the day before when he was visiting his daughter at his ex-wife's house. Pabst's ex-wife then found additional pornographic downloads on her home computer. She called the Division of Family Services. The child was interviewed at the Children's Advocacy Center and reported during the interview that she had watched her father view " bad things" on the computer, including naked children. Based on information provided by Pabst's ex-wife and their daughter, the police obtained a search warrant for Pabst's home computer where they found additional images of child pornography. Pabst was indicted in June 2013 on twenty-five counts of Dealing in Child Pornography, one count of Providing Obscene Material to a Person under 18, and one count of Endangering the Welfare of a Child.

(5) On June 14, 2013, the prosecutor provided Pabst's counsel with police reports and other discovery materials. The prosecutor's letter indicated that she was providing the material on the express condition that the materials not be given to Pabst. On June 21, 2014, defense counsel forwarded the materials to Pabst. Pabst acknowledges that he immediately returned the materials to his attorney because he did not want the materials in the prison due to the nature of the charges against him. Pabst later changed his mind and asked to have the materials returned to him. Realizing the stipulation in the prosecutor's letter, defense counsel indicated that she could not provide Pabst with copies. Counsel reviewed ...


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