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State v. Phlipot

Superior Court of Delaware, Sussex

May 24, 2017

State of Delaware
Matthew M. Phlipot,

          SUBMITTED: May 4, 2017


         Dear Mr. Phlipot:

         Defendant Matthew M. Phlipot ("Defendant" or "Phlipot") has filed his second Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61").[1] For the reasons expressed below the motion is DENIED.

         On June 10, 2010, after a jury trial, Defendant was found guilty of two counts of Rape in the Fourth Degree, six counts of Witness Tampering, 27 counts of Criminal Contempt/Disobedience, and one count of Falsely Reporting an Incident. In this Postconviction Motion Defendant does not mention the Witness Tampering or Criminal Contempt charges, his only grievances concern the Rape in the Fourth Degree charges. On August 10, 2010, Defendant was sentenced as follows: for the first count of Rape in the Fourth Degree, five years at Level Five; and for the second count of Rape in the Fourth Degree, 15 years at Level Five, suspended after five years and the successful completion of Family Problems for ten years at Level Four home confinement or work release, suspended after six months for two years at Level Three.[2] Defendant filed an appeal to the Delaware Supreme Court on September 9, 2010. The Supreme Court affirmed the conviction on May 3, 2011.[3]

         On March 2, 2012 Defendant filed his first Postconviction Motion. On December 13, 2012, Judge Herlihy denied the Motion.[4] On April 25, 2013, that decision was affirmed by the Delaware Supreme Court.[5] Additionally, Defendant filed an Application for Writ of Habeas Corpus in Federal Court. On April 27, 2015, the Application was determined to be time-barred and, therefore, denied.[6] No certificate of appealability was issued.[7]

         On March 16, 2017, Defendant filed his second Motion for Postconviction Relief. He makes two claims: (1) new exculpatory evidence has come to light regarding the IP address used to send emails which showed that the victim ("victim" or "K.K") planned to make false statements at trial, and (2) exculpatory evidence was suppressed through prosecutorial misconduct, primarily that the Prosecutor threatened Phlipot with new charges if he attempted to introduce certain emails at trial.

         The first step in evaluating a motion under Rule 61 is to determine whether any of the procedural bars listed in Rule 61(i) will force the motion to be procedurally barred.[8] Both Rule 61(i)(1) and (2) require this motion to be summarily dismissed. First, a motion for postconviction relief cannot be filed more than one year after the judgment is final.[9] Given that Defendant's conviction was final on May 3, 2011, his motion is time-barred. Additionally, any successive motion for postconviction relief is barred by Rule 61(i)(2) unless the Defendant has:

(i) [pled]...with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which [he] was convicted; or
(ii) [pled]...with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant's case and renders the conviction or death sentence invalid.[10]

         Defendant has failed to make this showing. He claims that new evidence has been discovered which proves his innocence. Defendant provided copies of two emails sent from an account associated with a "Cullen Jones" which seem to propose that the sender will truthfully testify in court only if Defendant provides him or her with $5, 000 in cash. Defendant claims that these emails were sent by the victim. According to Defendant, truthful testimony by the victim would have exonerated him.

         Defendant further claims to have recently learned how to obtain the IP address from which an email was sent, information or knowledge that he did not possess at the time of the trial. In making this discovery, Defendant learned that the IP address used to send the emails in question was an IP address previously used by the victim. Further, Defendant states that the Prosecutor was aware of these emails at the time of the trial, but would not allow the evidence to be introduced. In Defendant's opinion, this was due to the Prosecutor's knowledge, via a computer expert's IP address analysis, that the victim was the only possible sender of the incriminating emails. Therefore, he claims that the suppression of this evidence, coupled with his lack of ability to ascertain the IP address at the time of trial, resulted in an improper verdict.

         The only way for Defendant to overcome the bar found in Rule 61(i)(2) would be to show that new evidence exists that creates a strong inference that he is actually innocent of the charges for which he was convicted. The United States District Court for the District of Delaware has already adjudicated whether or not new evidence in a slightly different context proves Defendant's actual innocence.[11] The Court stated the standard as follows: "...a petitioner only meets the threshold requirement [for overcoming the AEDPA's time-bar by asserting he has new evidence demonstrating his actual evidence] by 'persuading the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.' An actual innocence claim must be based on 'new reliable evidence- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial.'"[12]

         Defendant's argument to the District Court was based upon a December 9, 2014 Affidavit provided by the Defendant's wife which stated that he was home on the Wednesday night that the crime was alleged to occur. According to the State, the crime took place at Phlipot's home. Yet, the victim could never say for sure whether the crime had occurred on Wednesday or Thursday night. Phlipot asserted that this Affidavit proved that he was actually innocent.[13]However, the District Court found that the Affidavit was not "new evidence" that was unavailable at the time of trial, so the standard for overcoming the time-bar was not met.[14] Judge Andrews wrote, "Ms. Phlipot's declaration that Petitioner was not at their home in Lewes on Wednesday night, January 21, 2009 does not constitute 'new' evidence for the purposes of the Schlup standard, because this information was available to Petitioner through the exercise of reasonable diligence at the time of his trial."[15] Thus, this Court considers whether or not Defendant would have had access to this IP address evidence at the time of trial.

         There is no reason to believe that Defendant could not have accessed this information before trial, despite his claims of recently learning how to obtain an IP address. As will be discussed later, Defendant set up an email system for himself and the victim after they were ordered to have no contact by the Family Court, which would allow them to secretly communicate. This shows special knowledge of internet technology. Therefore, Phlipot's assertion that he did not have the ability to access the IP information at the time of trial is unpersuasive.

         The District Court also examined whether it was more likely than not that no reasonable juror would have found Defendant guilty even if Ms. Phlipot had testified that he was not at their Lewes home on the Wednesday night in question. Judge Andrews concluded that Ms. Phlipot's Affidavit would not have convinced a reasonable juror of Defendant's innocence, especially considering that the victim was unsure of the exact night that the crime occurred. He stated, "No matter how one looks at this case, Petitioner did not have many good choices as to how to defend against the charges. Petitioner does not now thread the needle in such a way that the Court can conclude that his new evidence leads to the conclusion that no reasonable jury would have found him guilty."[16]

         When applying the same test to the assertions Defendant made in this Rule 61 Motion, this Court also reaches the conclusion that no reasonable juror would find Defendant to be innocent, even in light of the IP address evidence. Defendant has to show that the emails combined with the information regarding the IP address would make it so no reasonable juror would find him guilty. Here, the Court is not persuaded by Phlipot's argument, because it believes that this scheme regarding the emails and IP address is another example of Defendant's history of deception.

         Defendant has long engaged in deceptive behavior; therefore, his latest argument is merely a new attempt to game the system. At the various stages of this case, both the Delaware Supreme Court and the Delaware Superior Court have referenced Phlipot's deception. In the Supreme Court's May 3, 2011 decision affirming Defendant's conviction, the Court stated that he "continued seeing, calling, and e-mailing K.K. Many e-mails were written in an attempt to convince K.K. not to tell anyone about her sexual relationship with Phlipot and to discourage her from testifying against him."[17] For these actions, Defendant was charged with six additional counts of Tampering with a Witness, 27 counts of Criminal Contempt, and one count of Falsely Reporting an Incident.[18]

         The Superior Court also detailed Defendant's deception in the denial of his first Rule 61 Motion. Judge Herlihy noted Defendant's efforts to continue correspondence with the victim, even after the issuance of a no contact order by the Family Court. The opinion reads, "Despite the no contact order, Phlipot sent K.K. numerous emails. He even went so far as to create a special Yahoo! account. That account, in so many words, enabled him to create a message for K.K. to read but there would be no obvious 'sent' or obvious 'received.'"[19] This action demonstrates both Defendant's intention to circumvent the Family Court's no contact order as well as his sophisticated understanding of computer technology. This lends additional support to the idea that Defendant's claims of actual innocence are without merit because it is apparent that Phlipot is willing to use deceptive tactics to maneuver around consequences he does not like.

         Further, Defendant argued in his first Rule 61 that his trial counsel prematurely moved to exclude these emails, as there was no expert testimony or other foundation for their admission.[20]He believes that this error enabled the State to have an opportunity to get an expert report and involve a State Police Computer expert (Det. Garland), which provided for the admissibility of the emails.[21] Judge Herlihy noted that it is unlikely that the State's foundational evidence was of consequence, given that the emails likely would have been admitted on the basis of K.K.'s testimony only.[22] Moreover, the testimony given by Det. Garland helped to flush out Defendant's efforts to circumvent the Family Court no contact order by providing "a good gloss to some of the technical side to the case."[23] It is likely that Defendant attacked this evidence because it undercuts his blame-shifting argument that someone else, such as the victim's friend Ben Herholdt, authored the emails in an attempt to frame Defendant.[24]

         Later in the opinion, Judge Herlihy also commented on Phlipot's claim of ineffective assistance of counsel with regard to his Motion to Suppress the evidence obtained from Yahoo!. He stated that this claim was "a repackaged argument made in the trial court which was not the subject in the direct appeal."[25] Thus, Defendant has an early history of presenting frivolous arguments to the Court when he believes it could be beneficial and attempting to manipulate the facts so that they can best benefit his case.

         Additionally, Defendant took issue with trial counsel's failure to raise the defense that Defendant believed the victim was 18 or older.[26] He sought to persuade trial counsel to introduce evidence showing that the victim had made representations that she was over the age of 18.[27] However, Phlipot sought to simultaneously pursue a claim of factual innocence and he denied that there had been intercourse.[28] These representations were clearly contrary to introducing evidence of the victim's age.[29] Therefore, the Court held that there was no merit to the ineffective assistance claim. Further, Defendant missed the ...

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