IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOSEPH S. PACZKOWKSI, §
§ No. 408, 2025
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1112009386 (S)
STATE OF DELAWARE, §
§
Appellee. §
Submitted: May 15, 2026
Decided: July 31, 2026
Before TRAYNOR, LEGROW, and GRIFFITHS, Justices.
ORDER
After consideration of the parties’ briefs and the record on appeal, it appears
to the Court that:
(1) The appellant, Joseph S. Paczkowski, filed this appeal from a Superior
Court order sentencing him for a violation of probation (“VOP”). For the reasons
set forth below, we affirm the Superior Court’s judgment.
(2) In December 2011, a grand jury charged Paczkowski with multiple
counts of unlawful sexual conduct against a child by a sex offender. The acts
occurred when the child was eight and nine years old. In April 2012, Paczkowski
pleaded guilty to first-degree unlawful sexual contact and sexual solicitation of a
child. Paczkowski also admitted to a VOP in CR. ID No. 9904022327.
(3) After granting the State’s petition to declare Paczkowski a habitual
offender, the Superior Court sentenced Paczkowski as follows: (i) for the VOP,
third-degree unlawful sexual intercourse, seven years of Level V incarceration; (ii)
for first-degree unlawful sexual contact, as a habitual offender, eight years of Level
V incarceration with credit for 167 days served; and (iii) for sexual solicitation of a
child, fifteen years of Level V incarceration, suspended after successful completion
of the Family Problems program for decreasing levels of supervision. Paczkowski
did not appeal.
(4) In October 2023, Paczkowski was released from prison to Level IV
home confinement. As a Tier III sex offender, Paczkowski was subject to sex
offender special conditions that forbade him from possessing pornography. The
conditions did not prohibit Paczkowski from having a cell phone. He had a
smartphone and a flip phone. Probation Officer Jessica Adkins warned Paczkowski
that he was responsible for everything on the smartphone and showed him how to
secure it.
(5) In May 2024, Paczkowski told Officer Adkins that he was disturbed by
an image of a young naked girl that popped up on his smartphone and gave the phone
to Officer Adkins. Paczkowski denied knowledge of how the image got on his
smartphone but disclosed that he had been searching for images of children with
genital abnormalities to understand his own medical condition. Officer Adkins
2
obtained supervisor permission to seize the smartphone and turn it over to Probation
and Parole’s intelligence unit.
(6) Officer Jason Glenn, a member of the intelligence unit, performed an
extraction and examination of Paczkowski’s smartphone. The smartphone contained
300 to 400 images or videos of pornography, at least eight images of child-sexualabuse material (“CSAM”),1 and child erotica. The images were accessed multiple
times on the smartphone between April 1 and April 30, 2024. Officer Glenn
submitted a report with his findings to the Internet Crimes Against Children Unit.
(7) In September 2024, Officer Glenn reported these findings to Officer
Adkins. Probation and Parole searched Paczkowski’s residence and seized his flip
phone. Paczkowski admitted that the flip phone would contain images similar to the
images on the smartphone because he conducted the same activities on it.
(8) On October 22, 2024, Paczkowski was arrested for violating his
probation. Officer Adkins’ report alleged that Paczkowski violated the conditions
of his probation by: (i) possessing CSAM, which constituted a new criminal offense;
and (ii) possessing pornography. Officer Adkins requested that the Superior Court
sentence Paczkowski to eleven years and six months of Level V incarceration,
suspended after eight years for decreasing levels of supervision. Officer Adkins also
1
Officer Glenn testified that CSAM and child pornography meant the same thing to him. In June 2026, the General Assembly amended the relevant statutes to replace the term “child pornography” with “child sexual abuse material.” Del. H.B. 166 syn., 153rd Gen. Assem. (2026).
3
requested that Paczkowski be prohibited from accessing any electronic device unless
monitored and possessing any photographs of children.
(9) The Superior Court held a contested VOP hearing on June 13, 2025 and
September 9, 2025. The State presented eight images of CSAM, six images of child
erotica, and six images of adult pornography found on Paczkowski’s smartphone.
Paczkowski testified in his own defense, claiming that he was researching genital
birth defects in order to understand the sexual abuse he suffered as a child and
committed as an adult. Paczkowski also blamed a housemate for putting
pornography on his smartphone. He admitted to telling Officer Adkins that the
smartphone contained images of children being examined for genital birth defects
and adult pornography.
(10) The Superior Court found that Paczkowski violated his probation by
possessing adult pornography and committing a new criminal offense by possessing
CSAM. The court sentenced Paczkowski to ten years and seven months of Level V
incarceration, suspended after seven years and completion of the Transitions Sex
Offender program for decreasing levels of supervision. The order also prohibited
Paczkowski from having photographs of children and from accessing the internet
except in accordance with the Probation and Parole Computer Monitoring Pilot
Program. This appeal followed.
4
(11) “Our review of a Superior Court judge’s revocation of a defendant’s
probation is for an abuse of discretion.”2 We review constitutional challenges de
novo.3 Paczkowski’s arguments on appeal may be summarized as follows: (i) the
Superior Court lacked jurisdiction to find a VOP based on his use of YouTube
because no such charge was included in the VOP warrant; (ii) there was insufficient
evidence to support the VOP; (iii) the State violated Brady v. Maryland4 by
withholding favorable evidence; (iv) the Superior Court judge violated his right to
due process by having ex parte communications with Officer Adkins and exhibiting
a closed mind; and (v) the prohibition against his possession of any photographs of
children violated the First Amendment to the United States Constitution.
(12) The Superior Court has subject matter jurisdiction over adults indicted
for a felony—including sexual solicitation of a child (which was the crime for which
Paczkowski was serving probation)5—and probation proceedings arising from
felony convictions.6 Contrary to Paczkowski’s contention, the Superior Court did
not find that he violated his probation by using YouTube. The Superior Court found
2
Thompson v. State, 192 A.3d 544, 549 (Del. 2018).
3
Id.
4
373 U.S. 83 (1963).
5
Slater v. State, 606 A.2d 1334, 1337 (Del. 1992) (“The Superior Court has personal and subject matter jurisdiction over adults who are indicted for a crime that is a felony, irrespective of whether the victim is a child.”).
6
11 Del. C. § 4333.
5
that Paczkowski violated his probation by committing a new crime, possession of
CSAM, and by possessing pornography, which constituted a violation of his sex
offender special conditions. The VOP report included both charges. Accordingly,
there is no merit to Paczkowski’s argument that the Superior Court lacked
jurisdiction over his VOP.
(13) Unlike a criminal trial, the State is only required to prove a VOP by a
preponderance of the evidence.7 “[T]he State must present ‘some competent
evidence’ to ‘reasonably satisfy the judge that the conduct of the probationer has not
been as good as required by the conditions of probation.’”8 The conditions of
probation at issue in this case were whether Paczkowski had committed a new crime
or possessed pornography. Contrary to Paczkowski’s contention, the State could
seek revocation of his probation regardless of whether it filed new criminal charges
against him.9
(14) Under Delaware law, it is a crime to “knowingly possess[] any visual
depiction of a child engaging in a prohibited sexual act.”10 A “prohibited sexual act”
7
Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006).
8
Id. (quoting Collins v. State, 897 A.2d 159, 160 (Del. 2006)).
9
See id. at 717 (“The State can proceed against a probationer by filing a VOP petition alleging a new criminal offense, even if the State concedes that it does not have enough evidence to prosecute the probationer and to establish beyond a reasonable doubt that he has committed the underlying criminal offense.”).
10
11 Del. C. § 1111(1).
6
includes “[n]udity, if such nudity is to be depicted for the purpose of the sexual
stimulation or sexual gratification of any individual who may view such
depiction.”11 During the VOP hearing, the State presented evidence that
Paczkowski’s smartphone contained images of naked infants with an adult using
ungloved hands to expose the infants’ vaginal areas. There also was an image of a
child between the ages of two and four sitting on a bench with her vagina exposed.
The smartphone contained web searches for “cute little girl” and “precocious
puberty boys.” 12 Paczkowski’s smartphone also contained hundreds of images of
adult pornography.
(15) As he did in the VOP proceedings, Paczkowski argues on appeal that
he was only looking for medical information about children with genital birth defects
like his own, not child pornography. The images, however, were of children outside
of a medical setting. In addition, Officer Glenn testified that he did not find any web
searches with medical terminology on Paczkowski’s smartphone. Paczkowski also
contends that he was trying to understand the sexual abuse he suffered as a child and
committed as an adult, but he does not explain why it was necessary for him to view
child pornography or child erotica to do so.
11
11 Del. C. § 1100(7).
12
App. to Opening Br. at 83–84 (Sept. 9, 2025 Tr. at 20–21).
7
(16) Additionally, Paczkowski asserts that the pornographic images could
not have been extracted from his smartphone because Officer Glenn testified that he
found the images in April 2024, but Paczkowski did not turn over his smartphone
until May 7, 2024. Paczkowski’s assertion is based on an incorrect statement made
by Officer Glenn. Both Officer Adkins and Paczkowski testified that Paczkowski
turned over his smartphone on May 7, 2024. On the first day of the VOP hearing,
Officer Glenn testified that the Probation and Parole’s intelligence unit received
Paczkowski’s smartphone in May. Several months later, however, on the second
day of the VOP hearing, Officer Glenn testified that he discovered the pornographic
images in April 2024. In light of the earlier testimony, Officer Glen’s testimony on
the second hearing day was simply mistaken. We rely on the earlier, matching
testimony from Officer Glenn, Officer Adkins, and Paczkowski that the smartphone
was turned over on May 7, 2024, and disregard Officer Glenn’s later inconsistent
statement.
(17) Paczkowski blames one of his Level IV housemates for putting
pornography on his smartphone, but it was within the Superior Court judge’s
discretion to find that this testimony was not credible.13 Based on the testimony and
exhibits presented at the VOP hearing, there was sufficient competent evidence to
13
See Greathouse v. State, 797 A.2d 1206, 2002 WL 1012673, at *2 (Del. May 10, 2002) (TABLE) (citing Tyre v. State, 412 A.2d 326, 330 (Del. 1980)).
8
support the Superior Court’s findings that Paczkowski knowingly possessed images
of nude children depicted for the purpose of sexual stimulation or gratification in
violation of Section 1111 and that he possessed pornography.
(18) Paczkowski also contends that the State violated Brady by withholding
evidence favorable to him, specifically medical images of nude children not
presented at the VOP hearing. He did not raise this claim below so we review for
plain error.14 “[P]lain error is limited to material defects which are apparent on the
face of the record; which are basic, serious and fundamental in their character, and
which clearly deprive an accused of a substantial right, or which clearly show
manifest injustice.”15
(19) We have never held that Brady applies in probation-revocation
hearings, but we need not decide that issue to resolve this appeal.16 Even if Brady
applies, Paczkowski has not established a violation of it. Under Brady and its
progeny, prosecutors have a constitutional duty to disclose exculpatory and
impeachment evidence that might be material to the outcome of the case.17 To
14
See Supr. Ct. R. 8.
15
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
16
See Super. Ct. Crim. R. 32.1(a) (listing certain rights afforded to probationers in probationrevocation proceedings but not listing Brady-related rights); U.S. v. Ataya, 145 Fed. Appx. 331, 333 (11th Cir. 2005) (holding that “Brady only applies to criminal prosecutions and not to probation revocation hearings” and citing Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)). Cf. United States v. Crabb, 689 Fed. Appx. 498 (9th Cir. 2017) (finding no plain error in probationrevocation hearings while assuming without deciding that Brady applies in such proceedings). 17
Brady, 373 U.S. at 87–91.
9
establish a Brady violation, a defendant must show: “(1) evidence exists that is
favorable to the accused, because it is either exculpatory or impeaching; (2) that
evidence is suppressed by the State; and (3) its suppression prejudices the
defendant.”18
(20) Paczkowski has not met this burden. First, he does not identify the
relevant images purportedly withheld or explain how additional images of nude
children would be favorable to his defense. Second, he has not shown that the State
suppressed favorable images found on his smartphone. Evidence collected from the
smartphone was available for inspection by Paczkowski’s counsel. The prosecutor
presented only a selection of images to prove Paczkowski’s VOP and indicated that
she was willing to present any other images Paczkowski or his counsel wished to be
displayed. Finally, Paczkowski cannot show prejudice. Possession of a single image
of child pornography would justify a VOP finding, and the prosecutor presented
several such images collected from Paczkowski’s smartphone at the hearing. In
addition, the evidence established that Paczkowski possessed pornography, which
constituted a separate violation.
(21) Paczkowski next contends that the Superior Court judge violated his
right to due process by having ex parte communications with Officer Adkins and
18
Starling v. State, 882 A.2d 747, 756 (Del. 2005).
10
exhibiting a closed mind. He did not raise these claims below, and we therefore
review for plain error.19
(22) The VOP hearing transcript does not reveal any ex parte
communications between the judge and Officer Adkins. After Paczkowski finished
testifying, the Superior Court judge stated that he had a few questions for Officer
Adkins but the judge wanted to take a break first. Following the break, the judge
reiterated that he had questions for Officer Adkins, arranged for Officer Adkins to
be sworn in, and asked Officer Adkins questions concerning Paczkowski’s
awareness that he could not possess pornography. Paczkowski then testified in
rebuttal, admitting that he understood he could not possess pornography while on
probation and as a Tier III sex offender.
(23) Similarly, the record does not support Paczkowski’s claim that the
Superior Court judge displayed a closed mind by basing his VOP finding on
Paczkowski’s status as a sex offender or by describing Paczkowski as a pedophile.
When faced with a claim of personal bias or prejudice, a judge must engage in the
two-part analysis set forth in Los v. Los.20 “First, [the judge] must, as a matter of
subjective belief, be satisfied that he can hear and rule on the matter free of bias or
19
See Supr. Ct. R. 8.
20
595 A.2d 381, 384–85 (Del. 1991).
11
prejudice concerning that party.”21 Second, regardless of the judge’s subjective
belief, there must be no “appearance of bias sufficient to cast doubt on the judge’s
impartiality.”22 If the defendant did not raise the issue of recusal below, the first part
of the Los test does not apply on appellate review.23
(24) Contrary to Paczkowski’s contentions, the Superior Court judge did not
find a VOP based on Paczkowski’s status as a sex offender. The VOP hearing
transcript demonstrates that the judge applied the correct legal standard, identified
the conditions allegedly violated, reviewed the evidence presented, considered the
defenses presented, and concluded that the evidence established a VOP justifying
revocation of Paczkowski’s probation. As to the judge’s description of Paczkowski
as a pedophile, the judge used this term during sentencing when Paczkowski stated
that he did not prey on children and had never been accused of preying on children.
The judge disputed this statement, highlighting Paczkowski’s previous convictions
for sexual solicitation of a child and sexual contact with a child. Given the definition
of pedophile as “someone who is sexually attracted to children,” the judge’s use of
the term was not illustrative of bias or a closed mind.24 Paczkowski has not
21
Id.
22
Id. at 85.
23
Goodman v. State, 226 A.3d 741, 2020 WL 1061691, at *2 (Del. Mar. 4, 2020) (TABLE). 24
Pedophile, Black’s Law Dictionary (12th ed. 2024).
12
established any appearance of bias sufficient to cast doubt on the Superior Court
judge’s impartiality.
(25) Finally, Paczkowski argues that the condition prohibiting him from
possessing any photographs of children violates his free-speech rights under the First
Amendment. He did not object to Officer Adkins’ request for this sentencing
condition below, so we review it for plain error.25
(26) The Superior Court may impose a sentencing condition requiring an
offender to refrain from engaging in certain activities “as deemed necessary by the
court to ensure . . . the safety of the victim or the public, the rehabilitation of the
offender . . . or for any other purpose consistent with the interests of justice.”26 This
Court has stated that “[a] trial judge ‘has broad discretion in setting probation
conditions, including restricting fundamental rights.’”27 In State v. Lockwood, the
25
See Supr. Ct. R. 8.
26
11 Del. C. § 4204(m). Since Paczkowski’s VOP, the General Assembly enacted amendments to the probation provisions of Title 11. These new amendments require, among other things, that a probation officer or court “presumptively impose the least number of special conditions, and least restrictive special conditions of supervision, necessary to achieve the goals of supervision” unless the probationer’s crime mandates specific conditions.” 11 Del. C. § 4332(a)(7). 27
James v. State, 937 A.2d 140, 2007 WL 3034805, at *3 (Del. Oct. 18, 2007) (TABLE) (upholding probation condition that barred probationer from being alone with a female after dark) (quoting United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991)). See also Belair v. State, 263 A.3d 127, 2021 WL 4592139, at *1 (Del. Oct. 4, 2021) (TABLE) (rejecting the appellant’s argument that the condition prohibiting him from owning a device with the ability to access the internet violated the First Amendment because the appellant had agreed to the condition in his plea agreement; he was a sex offender who used the internet to solicit a child, and the condition only applied for two-and-a-half years); Hartmann v. State, 19 A.3d 301, 2011 WL 1486567, at *2 (Del. Apr. 19, 2011) (TABLE) (finding restriction on probationer’s internet access “was a reasonable
13
Vermont Supreme Court rejected a First Amendment challenge to a probation
condition prohibiting possession of all photographs of children.28 The Vermont
Supreme Court upheld the condition on plain error review, concluding that it was
“reasonably related both to defendant’s rehabilitation and protection of the public”
and “not unduly restrictive of defendant’s liberty or autonomy.”29
(27) This case is similar to Lockwood. In sentencing Paczkowski, the
Superior Court emphasized his history of sexually abusing children and expressed
concern that his fixation on children was escalating. Throughout his testimony at
the VOP hearing, Paczkowski displayed a strong interest in children, the sexual
abuse he suffered as a child and his sexual abuse of children, and genital defects in
children. Paczkowski maintains that his interest in genital defects in children is
based on his own medical condition, but he is an adult, not a child. In addition, this
interest does not explain why he conducted web searches using non-medical terms
that were likely to elicit CSAM. Nor does it explain why he possessed child erotica,
including images of clothed children in suggestive positions that Officer Glenn
explained were viewed for sexual gratification. The probation condition will
disabuse Paczkowski of the belief that he can collect images of children for sexual
condition to ensure the safety of the public” and that the practitioner could still exercise his fundamental right to access the courts).
28
632 A.2d 655, 663 (Vt. 1993).
29
Id. (citation omitted).
14
gratification under the guise of conducting medical research or trying to understand
past abuse he suffered or perpetrated. Prohibiting Paczkowski from possessing any
photographs of children therefore was reasonably related to his rehabilitation and
public safety.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Abigail M. LeGrow
Justice
15