Wednesday, March 04, 2015

Child Pornography, the Alford Plea and Ineffective Assistance of Counsel

After Joshua Zachary Matter was “charged with two felonies for possession and dissemination of pornography on a computer”, he agreed to
enter an Alford plea to the possession-related charge in exchange for the state's dismissal of the dissemination-related charge and a sentence that consisted of 120 days of electronic home monitoring with work release, restricted computer use, and `all other terms and conditions open to argument.’ The plea offer was also `conditioned on [his] cooperat[ion] with [the] PSI and making all court dates.’
Matter v. State, 2015 WL 732481 (Court of Appeals of Minnesota 2015).  As the Court of Appeals points out in a footnote, a “defendant who enters an Alford plea maintains innocence but concedes that there is sufficient evidence to support a guilty verdict.”  Matter v. State, supra.
The opinion goes on to explain that in his plea petition, Matter
made statements supportive of his attorney's performance, including that he had `sufficient time to discuss my case with my attorney,’ that he was `satisfied that my attorney is fully informed as to the facts of this case,’ that `[m]y attorney has discussed possible defenses,’ and that `I am satisfied that my attorney has represented my interests and has fully advised me.’ The plea petition also includes [his] acknowledgement that he understood his various trial rights and waived them. The district court accepted the plea and ordered a presentence investigation (PSI).
Matter v. State, supra.
The Court of Appeals also pointed out that the
PSI report notes that the presumptive guidelines sentence for the offense of conviction is a stayed fifteen-month sentence and recommends a probationary sentence in accordance with [Matter’s] plea agreement. The PSI proposes as conditions of probation that [he] `[r]egister as a predatory offender and submit a DNA sample as required by statute.’

In conjunction with preparation of the PSI, [Matter] participated in a psychosexual assessment. The evaluator diagnosed [him] with `paraphilia not otherwise specified,’ depression, and avoidant personality disorder, and recommended that [he] `should be required to complete adult group sex offender treatment.’ The evaluator rejected [Matter’s] claim that he never intentionally sought child pornography, noting that [his] computer showed `”numerous hits” for terms, such as “pedo and pthc” (which are indicative of child pornography),’ that he `downloaded these files from Shareaza, a peer-to-peer file sharing program,’ and that some files were named `Sandra Teen Model Nude Pics Pedo Pthc, Pedo Lolita Kids Kinder Pedofilia Sandra Teen Model Nude Pics Pedo Pthc, and Raygold Lolita pedo 10Yo F–––––g a Sister Sleep 11Yo.’ The evaluator concluded that `[b]ased on the titles of these files, it would be impossible for an individual not to know what was on’ the downloaded files.
Matter v. State, supra.
At Matter’s sentencing,
consistent with his plea agreement, the [trial judge] stayed imposition of sentence and placed [Matter] on probation for five years, requiring him to be placed on home monitoring for 120 days. Probation was made subject to numerous conditions, including that [he] successfully complete a sex-offender program, register as a predatory offender, and provide a DNA sample.
Matter v. State, supra.
In May of 2013, Matter’s Probation Agent filed a probation violation report
alleging failure to complete sex-offender treatment and later added violations for contact with minors, going places where children congregate, and marijuana use. In August 2013, [Matter] moved to withdraw his plea, arguing that he had repeatedly maintained his innocence, no actual images of child pornography were found on his computer, he was convinced to plead guilty by his attorney's statement that he would likely lose custody of his ten-year-old daughter if he did not accept the plea, and his attorney's advice to enter an Alford plea set him up `for almost certain failure’ because `he would be required to complete a treatment program that included polygraph examinations.’
Matter v. State, supra.  In a footnote to Matter’s claim that no child pornography was found on his computer, the court says “[a]t Matter's plea hearing, he admitted that he downloaded “a number of images” which involved minors in sex acts.”  Matter v. State, supra.
After Matter’s Probation Agent
filed a new probation violation report for his use of drugs, [he] petitioned for postconviction relief, alleging that his attorney provided ineffective assistance of counsel by failing to advise him at the time of his plea that he could be required to complete sex-offender treatment as a condition of probation, and by advising him to enter an Alford plea despite a weak case against him and his consistent claim of innocence.
Matter v. State, supra.
The trial judge then “dismissed [Matter’s] petition without an evidentiary hearing, concluding that [he] had not shown a factual basis for plea withdrawal or an actionable claim of ineffective assistance of counsel.”  Matter v. State, supra. Matter then filed this appeal.  Matter v. State, supra.
The Court of Appeals began its analysis of Matter’s arguments by explaining that
[a]ppellate courts apply an abuse-of-discretion standard of review to a postconviction court's denial of an evidentiary hearing. Caldwell v. State, 853 N.W.2d 766 (Minnesota Supreme Court 2014). A postconviction court must hold an evidentiary hearing unless the petition, records, and files conclusively show that the petitioner is not entitled to relief. Minnesota Statutes § 590.04, subd. 1 (2014). An evidentiary hearing is necessary if material facts exist that must be resolved for a determination of the merits of the claim. Powers v. State, 695 N.W.2d 371 (Minnesota Supreme Court 2005). But if the petitioner alleges facts that, even if true, are legally insufficient to entitle the petitioner to the requested relief, the postconviction court need not hold an evidentiary hearing. Bobo v.. State, 820 N.W.2d 511 (Minnesota Supreme Court 2012).

The 6th Amendment guarantees the right to counsel, U.S. Const. amend. VI, which includes the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel, `an appellant must demonstrate that counsel's performance fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel's errors.’ State v. Rhodes, 657 N.W.2d 823 (Minnesota Supreme Court 2003). . . . `A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Strickland v. Washington supra. An appellate court need only address one prong of the Strickland test if that prong is dispositive. State v. Rhodes, supra.
Matter v. State, supra.
Matter also argued that
under Padilla v. Kentucky, 559U.S. 356 (2010), his attorney should have informed him of the consequences of his conviction, including the possibility of his being required to participate in sex-offender treatment, which typically requires an admission of guilt, and that had his attorney properly counseled him, he would not have agreed to the Alford plea. Padilla v. Kentucky, supra (holding that counsel must inform client of consequences of a guilty plea that placed client at risk of deportation). [Matter] asserts `that sex offender treatment has become so interrelated to the criminal process in cases with sexual overtones that it too should require full disclosure to criminal defendants as part of the guilty plea process.’ We disagree.
Matter v. State, supra.
The Court of Appeals explained, first, that
[w]hen considering the first Strickland prong, appellate courts have limited the holding of Padilla to deportation cases. See Sames v. State, 805 N.W.2d 565 (Minnesota Court of Appeals 2011) (ruling that Padilla does not require an attorney to advise a client that a guilty plea may result in the client's ineligibility to possess a firearm).

Following Padilla, Minnesota courts have made a distinction between collateral and direct consequences of a plea in determining the reasonableness of an attorney's performance, and have held that attorneys must advise their clients of only direct consequences of a plea, such as `the maximum sentence to be imposed and the amount of any fine,’ Alanis v. State, 583 N.W.2d 573 (Minnesota Supreme Court 1998), abrogated in part by Padilla, supra. . . .

The consequence of pleading guilty at issue here, which required completion of sex-offender treatment as a condition of probation, is collateral to [Matter’s] plea, and `ignorance of a collateral consequence does not entitle a criminal defendant to withdraw a guilty plea.’  Alanis v. State, supra.
Matter v. State, supra.
The Court of Appeals also pointed out that Matter’s postconviction petition
does not allege that [his] attorney failed to advise him that he might be required to attend sex-offender treatment. The petition states only that [he] `understood at the time [of the plea] that treatment was not likely because this was his first offense. . . .’ These alleged facts are insufficient to support a finding that [Matter] was not advised of the requirement of sex-offender treatment.
Matter v. State, supra.
The court went on to explain that
[f]or these reasons, [Matter] cannot satisfy the first Strickland prong to show that his trial counsel's performance was defective. Moreover, even assuming that [his] attorney should have informed him of the likelihood of required sex-offender treatment or of the DNA registration requirement, these omissions did not satisfy the second Strickland prong, that there is a reasonable probability that the result would have been different without the errors. Contrary to [Matter’s] claim, the evidence against him was strong: police legally obtained evidence that he had downloaded numerous images of child pornography on his computer.

[Matter] asserts that he lacked intent to commit the offense of conviction, but this claim is contradicted by evidence on his computer of his use of search terms that focused on and specifically sought images of sex acts involving children. Further, [his] suggestion that the typical child pornography case involves many more images of children is of no legal import; the offense of conviction requires possession of only one image. See Minnesota Statutes § 617.247, subd. 4 (2010) (making it a crime to `possess[ ] a pornographic work’).

[Matter] has failed to demonstrate ineffective assistance of counsel, and the district court did not abuse its discretion by denying [him] an evidentiary hearing.
Matter v. State, supra.
Finally, Matter claimed his plea was invalid because his trial lawyer told him he
would likely lose custody of his child if he did not accept the plea offer. A defendant does not have an absolute right to withdraw a plea. State v. Farnsworth, 738 N.W.2d 364 (Minnesota Supreme Court 2007). A defendant may withdraw a plea after sentencing only if `withdrawal is necessary to correct a manifest injustice.’ Minnesota Rules of Criminal Procedure 15.05, subd. 1. Manifest injustice exists when a guilty plea is invalid. State v. Theis, 742 N.W.2d 643 (Minnesota Supreme Court 2007).

A valid guilty plea must be accurate, voluntary, and intelligent. State v. Raleigh, 778 N.W .2d 90 (Minnesota Supreme Court 2010). The defendant bears the burden to establish an invalid plea. State v. Raleigh, supra.

Because [Matter] merely identifies this issue in his pro se brief without citing legal authority to support it, we normally would deem the issue waived. See State v. Palmer, 803 N.W.2d 727 (Minnesota Supreme Court 2011). . . . Further, [Matter’s] specific allegation was that he was informed by his attorney that the prosecution would `not try and go after your daughter if you take the plea.’ This fails under either prong of Strickland. `A guilty plea is involuntary when it rests in any significant degree on an unfulfilled or unfulfillable promise. . . .’ Uselman v. State, 831 N.W.2d 690 (Minnesota Court of Appeals 2013). . . .

The `promise’ here was only purportedly made by the state and relayed by his attorney. Further, [Matter] can show no prejudice in accepting the plea when the evidence of his guilt was strong and he received a very favorable sentence.
Matter v. State, supra.  For these and other reasons, the Court of Appeals affirmed Matter’s conviction.  Matter v. State, supra.  I decided to do a post on this case because I find Alford pleas something of an oxymoron:  The person pleads guilty while maintaining innocence. 
If you would like to see a photo of Matter and read a news story about the case, check the story you can find here.

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