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State v. Fink

Superior Court of Delaware

January 3, 2020

STATE OF DELAWARE
v.
KENNETH FINK, Defendant.

          Submitted: October 10, 2019

          Kathleen Jennings, Delaware Attorney General

          Albert J. Roop, V, State Prosecutor, Delaware Department of Justice Kenneth Fink, pro se (SBI No. 00439044)

          ORDER GRANTING IN PART AND DENYING IN PART KENNETH FINK'S MOTION FOR REARGUMENT

          Meghan A. Adams, Judge

         The Court has reviewed Defendant Kenneth Fink's Motion for Reargument (the "Motion for Reargument"). And now, this 3rd day of January, 2020, the Court grants in part, and denies in part, the Motion for Reargument as follows:

         Background of Defendant's Multiple Offenses and Violations of Probation

         1. A more complete recitation of Defendant's criminal history can be found in prior opinions from this Court, the Supreme Court of Delaware and various Federal Courts and will not be repeated here, other than facts pertinent to the Motion for Reargument.[1]

         2. By way of summary, Defendant has a long history in this Court, dating back to the year 2000. Defendant, a disbarred Delaware attorney, originally came to the attention of the Attorney General's office because of allegations of misuse of client funds. During an investigation into these allegations, a detective discovered a file containing child pornography. Eventually, more than 190 images of child pornography were found on Defendant's computer.[2]

         3. In March 2002, a Superior Court jury convicted Defendant of 15 counts of Unlawfully Dealing in Materials Depicting a Child Engaged in a Prohibited Act and 15 counts of Possession of Child Pornography.[3] On May 23, 2002, following a pre-sentence investigation, the Court sentenced Defendant to eight years at Level V custody followed by 35 years of probation. The Court specifically ordered, among other things, that Defendant was to have no computer with internet access.[4]

         4. Defendant, after his initial release from Level V custody, repeatedly violated his probation by continuing his pattern of behavior, including accessing the internet to view child (and adult) pornography and possessing electronic devices, despite specific orders not to do so. For example:

a. In April 2008, shortly after Defendant's initial release from Level V custody, Defendant was found with child pornography on his computer. In the report from this violation, the probation officer noted that given the Defendant's continued access to pornographic images, "considering what it has cost him in his life, and what he faced were he to be caught again, reveals a person unable to control his paraphilic urges." Moreover, the fact that Defendant would indulge in the continued use of child pornography "belie[d] his insistence that his collection of child pornography in the past was incidental to his collection of other pornography." Defendant subsequently pleaded guilty to a single count of Unlawfully Dealing in Child Pornography in December 2008.[5]
b. In February 2012, within days of Defendant's second release from Level V custody, Defendant was again found accessing child pornography. Notably, despite a special sex offender condition imposed upon Defendant's release that he was to have "ABSOLUTELY NO COMPUTER ACCESS FOR ANY REASON," the probation officer found numerous sites visited by Defendant that contained pornographic images. Defendant admitted to the probation officer that he had searched for and viewed these sites. The probation officer also noted that Defendant was a "twice convicted child pornographer and within days upon his release, he had gone to great lengths to obtain the usage of a computer risking his freedom, with no concern for the consequences."[6]
c. On February 26, 2013 -just over a month after being released from treatment - probation and parole located five thumb drives and a device capable of playing these thumb drives in Defendant's home despite a "very specific special condition not to have pornography or computer storage devices." Two laptops were also removed from a car in front of Defendant's residence. Defendant was later found in violation of probation. In April 2013, the Court sentenced Defendant to ten years at Level V with credit for 3 years eight months and 15 days previously served, suspended after five years at Level V for his 2008 Case.[7] The balance of the Defendant's sentence was suspended for various levels of probation. For Defendant's 2000 Case, the Court sentenced Defendant to ten years of Level II probation to be served consecutively.

         5. On November 14, 2018, probation and parole issued a progress report noting that Defendant "ha[d] incurred no new criminal charges and [w]as fully employed" and the monies owed to the Court were paid in full. The probation officer also noted that while it "ha[d] been a long road of recovery for [Defendant]...he seems to have settled in to a normal and productive life." As such, the probation officer requested that Defendant's probation be discharged. The Court (who was the sentencing Judge) summarily denied this request on the same day.[8]

         Defendant's Current Motion for Review/Reduction of Sentence

         6. On September 4, 2019, Defendant filed a Motion for Review and/or Motion for Reduction of a Probationary Sentence ("Motion for Reduction in Sentence"). In his Motion for Reduction in Sentence, Defendant requested that the Court modify the term of his remaining Level II probation from his 2000 Case so that it would run concurrently, rather than consecutively. In support thereof, Defendant stated that he has remained "gainfully employed," he purchased a home, he owns two rental properties, and participated in a sex offender's treatment program. Defendant also submitted a one-page "Discharge Summary" from Aim Therapeutic Services. Defendant, however, expressed no remorse or responsibility for his previous actions in his Motion for Reduction in Sentence.

         7. On October 1, 2019, the Court denied Defendant's Motion for Reduction of Sentence. In doing so, the Court noted that Defendant made the request more than 90 days after the Court imposed the sentence. More importantly, however, the Court noted that there were no circumstances warranting a reduction in Defendant's sentence. The Court notes that because the undersigned Judge was not the sentencing Judge, in reviewing Defendant's Motion for Reduction of Sentence, it reviewed the entirety of his nearly two-foot-thick case file from his 2000 and 2008 Cases de novo. This included a review of Defendant's pre-sentence reports, violation of probation reports, sentencing orders, appellate briefing, appellate opinions and various other documents contained in his file.

         8. On October 8, 2019, Defendant filed his Motion for Reargument pursuant to Superior Court Criminal Rule 57(d) and Superior Court Civil Rule 59(e). Defendant argued that the Court applied the incorrect standard pursuant to Superior Court Criminal Rule 35(b). Defendant again did not express ...


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