United States District Court, D. Minnesota
Katharine T. Buzicky, UNITED STATES ATTORNEY'S OFFICE,
D. Richman, for defendant.
Patrick J. Schiltz United States District Judge
Sean Penoncello was convicted after a jury trial of two
counts of producing child pornography and one count of
possessing child pornography. He was sentenced to 400
months' imprisonment. The United States Court of Appeals
for the Eighth Circuit affirmed Penoncello's sentence on
direct appeal. United States v. Penoncello, 671 Fed.
App'x. 399 (8th Cir. 2016).
matter is before the Court on Penoncello's motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. Penoncello argues that he received ineffective
assistance of counsel prior to trial-and that, had he
received effective assistance, he would have accepted the
government's original plea offer, pleaded guilty to one
count of producing child pornography, and received a shorter
sentence. The Court agrees, grants Penoncello's §
2255 motion, and orders the government to again offer the
original plea deal to Penoncello.
was indicted on a single count of production of child
pornography on April 15, 2015. ECF No. 10. The details of the
crime were horrific: The government alleged that a girlfriend
of Penoncello's (N.T.) had visited his home on September
15, 2012, with her seven-year-old son (A.M.), her
five-year-old daughter (A.L.M.), and an adult friend (S.H.).
After N.T. was bitten by Penoncello's dog, S.H. drove her
to an emergency room, and the children were left in
Penoncello's care. Penoncello took advantage of the
unsupervised access to A.L.M. by sexually assaulting her,
recording the sexual assault for his viewing pleasure, and
distributing images of the sexual assault over the Internet,
where they will forever be available for the viewing pleasure
of other pedophiles. Two years later, law-enforcement
officers discovered images of A.L.M.'s assault on the
computer of a suspect in Dayton, Ohio. After an
extraordinarily careful and thorough investigation, Special
Agent Craig J. Heidenreich of the Federal Bureau of
Investigation was able to identify A.L.M. as the victim and
Penoncello as the perpetrator.
Craig Hunter was appointed to represent Penoncello. ECF No.
9. On May 6, 2015, Hunter sent a letter to Penoncello
advising him that, if he was convicted of producing child
pornography as charged in the indictment, he would be facing
a mandatory minimum sentence of 15 years' imprisonment.
ECF No. 144-1. That was true. See 18 U.S.C. §
2251(e). Hunter also advised Penoncello that the United
States Sentencing Guidelines would recommend a sentence of
life in prison. ECF No. 144-1. That was not true. Because of
the statutory maximum, the Guidelines would actually
recommend a sentence of 30 years' imprisonment.
See 18 U.S.C. § 2251(e); U.S.S.G. §
5G1.1(a). (Penoncello was 41 years old at the time.)
days later, on May 12, 2015, Hunter met with Penoncello. ECF
No. 162 at 11. Hunter testified that he again advised
Penoncello about the 15-year mandatory minimum and the
Guidelines' recommendation of “life, ” but
Hunter admitted that he had no recollection of advising
Penoncello-at this meeting or at any other time-about the
statutory maximum. Id. at 11-12. Hunter also warned
Penoncello that if he did not plead guilty, he “would
not get the three-point reduction for acceptance of
responsibility and would likely have a much harder time
convincing the Judge he should impose only the [15-year]
mandatory minimum.” Id. at 12-13.
part, Penoncello testified that Hunter never informed
him-during their initial meeting or at any other time-about
the 30-year statutory maximum. Id. at 46-47.
Penoncello further testified that, during their initial
meeting, Hunter told Penoncello that he had recently been
successful in winning the acquittal of a defendant at trial.
Id. at 44. Hunter conceded that Penoncello's
testimony on this last point “may” be correct.
Id. at 13. (It is difficult to know how Penoncello
would know of that acquittal if Hunter had not told him.)
26, 2015, Assistant United States Attorney Katharine Buzicky
advised Hunter that Penoncello had until June 3, 2015 to
plead guilty to the pending indictment. ECF No. 144-2.
Buzicky warned that, if Penoncello did not do so, the
government would seek a superseding indictment that would add
a second count of production of child pornography and a count
of possession of child pornography. Id. The second
production-of-child-pornography count was based on newly
discovered evidence that, months before he recorded himself
sexually assaulting A.L.M., Penoncello had recorded himself
engaging in sexual intercourse with his son's babysitter
(A.O.)-a troubled 14- year-old girl. Penoncello's face
does not appear in the videos, but Penoncello's voice is
heard, A.O. is heard referring to him as “Sean, ”
and Penoncello's son appears in a portion of one video.
The new possession-of-child-pornography charge was based on a
large cache of child pornography that law-enforcement
officers found at the time of Penoncello's arrest on two
thumb drives that had been hidden in a vent in
Penoncello's home. Those thumb drives not only contained
images and videos of Penoncello's sexual abuse of A.L.M.
and A.O., but numerous other images and videos of child
pornography. Images and videos of Penoncello's sexual
abuse of A.L.M. and A.O. were also found on Penoncello's
password-protected smartphone, which he was carrying at the
time of his arrest.
was not all. Penoncello had been employed as a janitor at the
AmericInn in Virginia, Minnesota. At the time of
Penoncello's arrest, law-enforcement officers found in
his vehicle a video-recording device disguised as an outlet
cover. An examination of that video-recording device and the
thumb drives found in Penoncello's home revealed that
Penoncello had installed the device in a changing room near
the pool at the AmericInn and surreptitiously recorded women
and girls as they undressed. The first recording on the
device was actually a video of Penoncello installing the
device; although Penoncello's face cannot be seen, the
man installing the device is wearing two distinctive articles
of clothing that were found in Penoncello's home. The
government did not charge Penoncello with any crimes in
connection with his recording of the unsuspecting women and
girls at the AmericInn, but there was no doubt that the
government would attempt to introduce evidence of
Penoncello's conduct at trial.
being told by Buzicky that Penoncello had to plead guilty by
June 3, 2015 if he wanted to avoid a superseding indictment,
Hunter met with Penoncello on May 26, 2015, and then again on
June 1, 2015. ECF No. 144 at 2. The two discussed the
discovery of the recording of A.O. and the possibility of
Penoncello accepting a plea deal. Id. Echoing his
earlier advice, Hunter again told Penoncello that he faced a
15-year mandatory minimum and a Guidelines recommendation of
life. ECF No. 162 at 14-19. This, again, was incorrect.
Because of the statutory maximums, the Guidelines range was
30 years under the original indictment (one count of
production with a 30- year maximum) and would become 80 years
under the superseding indictment (two counts of production
with 30-year maximums and one count of possession with a 20-
year maximum). See 18 U.S.C. §§ 2251(e),
2252(b)(2). Hunter testified that he had no recollection of
ever advising Penoncello about any of the
statutory maximums for the crimes charged in the original or
superseding indictments. ECF No. 162 at 14-22. Penoncello
testified that Hunter in fact never informed of him of the
maximums, and thus, as far as Penoncello was concerned, his
exposure would be the same whether he pleaded guilty to the
original indictment or was convicted of all of the charges in
the superseding indictment: Either way, he would be looking
at ¶ 15-year mandatory minimum and a Guidelines
recommendation of life. Id. at 46-47.
did not plead guilty to the original indictment, and on June
9, 2015, the promised superseding indictment was returned
against Penoncello. ECF No. 27. At this point, Penoncello
found himself charged with two counts of producing child
pornography (for recording his sexual abuse of A.L.M. and
A.O.) and one count of possessing child pornography (for
possessing a large collection of child pornography on the
thumb drives found in his home). Two months later, on August
9, 2015, Buzicky offered another plea deal to Penoncello
through Hunter, this one requiring Penoncello to plead guilty
to one count of production of child pornography and one count
of possession of child pornography. ECF No. 144-3. Buzicky
said that Penoncello could still receive the three-point
reduction for acceptance of responsibility, but she warned
that after August 31, 2015, the government would not agree to
any plea deal, so if Penoncello wanted to plead after August
31, “he would have to plead straight up.”
again met with Penoncello to discuss his options. ECF No. 149
at 3. Hunter testified that, once again, he advised
Penoncello that he was facing a 15-year mandatory minimum and
a Guidelines recommendation of life. ECF No. 162 at 19-22.
Hunter also testified that, once again, he had no
recollection of advising Penoncello about the statutory
maximum (50 years under the government's latest offer).
ECF No. 162 at 19-21; 18 U.S.C. §§ 2251(e),
2252(b). Penoncello testified that he continued to be
ignorant of the statutory maximums and knew only that, if he
pleaded guilty, he would be subject to a 15-year mandatory
minimum, and the Guidelines would recommend a sentence of
life. ECF No. 162 at 46-47.
also testified that he had no memory of discussing with
Penoncello any of the other negative consequences that
Penoncello could suffer if he went to trial, with one
exception: Hunter told Penoncello that, if he went to trial,
he would “have a much harder time convincing the Judge
[to only impose] the mandatory minimum.” ECF No. 162 at
26. But Hunter did “[not] recall specifically
discussing [anything] . . . beyond that.” Id.
In particular, Hunter testified that he “[could not]
say” that he ever told Penoncello “that the best
way to achieve the best sentence would be to plead guilty and
accept responsibility.” Id. Hunter further
testified that he never told Penoncello that taking the stand
and perjuring himself at trial could result in the judge
imposing a longer sentence. Id. at 27.
testified that, far from warning him of the negative
consequences of going to trial, Hunter actually told him that
no one would much care if he opted to go to trial.
Specifically, Hunter told Penoncello “that the
prosecution would chalk it up as training and that there
would be no penalty for going to trial.” Id.
at 45. Hunter did not dispute Penoncello's
claim. Finally, Hunter testified that while he
personally believed that the evidence against Penoncello was
overwhelming and that it was in Penoncello's best
interest to plead guilty, Hunter “[could not]
say” that he ever mentioned this to Penoncello.
Id. at 27. Hunter explained that the reason why he
never informed Penoncello of the advantages of pleading
guilty was “because [Penoncello] steadfastly denied
that he had committed the offense, ” and thus Hunter
believed that “[t]here was no basis for a plea.”
Id. at 26.
went to trial on September 21, 2015. ECF No. 69. The
prosecution introduced a mountain of evidence that Penoncello
had sexually abused A.L.M., recorded the sexual abuse, and
distributed images of the sexual abuse via the Internet; that
Penoncello had sexually abused A.O. and recorded it; that
Penoncello had maintained a large collection of child
pornography in his home and on his smartphone, including
depictions of his sexual abuse of A.L.M. and A.O.; that
Penoncello had secretly recorded women and girls undressing
in the changing room at the AmericInn; and that Penoncello
had lied repeatedly when interviewed by law-enforcement
agents before and after his arrest. Both N.T. (A.L.M.'s
mother) and A.O. gave credible and moving testimony. The
evidence left no doubt that Penoncello was guilty of the
defended himself by taking the stand, insisting that he was
innocent of any crime, and presenting the theory that he had
been framed by a man named “Jesse”-whom,
Penoncello said, had been his rival for the affections of a
woman (although Penoncello had never actually met Jesse).
See ECF No. 114 at 211-39; ECF No. 118 at 7-33.
Penoncello's theory was that, in order to get back at him
for something or other, Jesse had sexually assaulted A.L.M.
in Penoncello's home during the brief window of time on
September 15, 2012 when N.T. was at the emergency room,
recorded the assault using the same type of
smartphone that Penoncello owned at the time, circulated
images of the assault on the Internet, and two years later
planted photographs and video of the assault on
Penoncello's new (password-protected) smartphone. And,
apparently fearing that he had not done enough to get
Penoncello in trouble, Jesse also managed to persuade the
14-year-old babysitter of Penoncello's son to have sex
with Jesse and allow him to record it-and, during the
recording, Jesse pulled off a convincing imitation of
Penoncello's voice, got A.O. to call him “Sean,
” and even recorded Penoncello's son at play in his
own house. (Nearly three years later, Jesse also planted
photographs and video of his encounter with A.O. on
Penoncello's new smartphone.) Just in case that was not
enough, Jesse also took the time to amass a large collection
of child pornography, download it to two thumb drives, add
images and video of A.L.M. and A.O., and hide the thumb
drives in a vent in Penoncello's home. And to put the
icing on the cake, Jesse stole some of Penoncello's
clothing, wore it while installing a hidden video camera in
the women's changing room at the AmericInn
(Penoncello's employer), returned the clothing without
Penoncello noticing that it had been missing, recorded women
and girls taking off their clothes, removed the video camera,
copied the recordings to the thumb drives that he later hid
in Penoncello's home, and stashed the video camera in
Penoncello's vehicle shortly before the police arrested
was Penoncello's defense-as preposterous a defense as was
ever presented in a federal courtroom. After three days of
trial (and to the surprise of absolutely no one), the jury
convicted Penoncello of all charges after a brief
deliberation. ECF Nos. 73, 78.
appeared before the Court for sentencing on March 10, 2016.
ECF No. 99. Hunter requested a downward variance and a
sentence of 15 years' imprisonment (the mandatory
minimum). ECF No. 89. The government sought a sentence of 480
months' imprisonment. ECF No. 90. The Court sentenced
Penoncello to a total of 400 months' imprisonment. ECF
No. 99. The Court acknowledged that this was “an
extremely long sentence, ” but found that such a
lengthy sentence was warranted because “Mr. Penoncello
committed some of the worst crimes that [the Court had ever]
seen, and [then] refused to take any responsibility for those
crimes.” ECF No. 119 at 20-21. The Court said that
“[t]he evidence against Mr. Penoncello was
overwhelming” but that, “[i]nstead of admitting
to [his] crimes . . . Mr. Penoncello told pathetic lies to
investigators and then, at trial, took the stand and perjured
himself by telling a preposterous story about a frame-up that
was so complicated that not even the CIA could've pulled
it off.” Id. at 23-24.
appealed his conviction and sentence in an Anders
brief filed by Hunter. Brief for Appellant, United States
v. Penoncello, 671 Fed. App'x. 399 (8th Cir. 2016)
(No. 16-1711). The Eighth Circuit rejected all of
Penoncello's arguments. See United States v.
Penoncello, 671 Fed. App'x. 399 (8th Cir. 2016).
before the Court is a § 2255 motion filed by Penoncello
alleging ineffective assistance of counsel in numerous
respects. See ECF Nos. 140, 141, 142. The Court
scheduled an evidentiary hearing on Penoncello's petition
and appointed Robert Richman to serve as
counsel. ECF Nos. 147, 148. At the evidentiary
hearing, Penoncello withdrew all of his claims save two: a
claim that he received ineffective assistance during the
plea-bargaining process, and a claim that he received
ineffective assistance at sentencing because Hunter did not
present any mitigating evidence. ECF No. 162 at 3-6. The
Court needs to address only the first of those
establish ineffective assistance of counsel, Penoncello must
satisfy the familiar two-part Strickland standard,
establishing both deficient performance and prejudice.
Lafler v. Cooper, 566 U.S. 156, 162-63 (2012);
Strickland v. Washington, 466 U.S. 668, 687 (1984).
That is, Penoncello must show both that his
“counsel's representation fell below an objective
standard of reasonableness” and “that there is a
reasonable probability that, but for ...