Schenck v. Ryan et al

Filing 14

REPORT AND RECOMMENDATION recommending that 1 Petition for Writ of Habeas Corpus (State/2254) be denied and dismissed. IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED becaus e Petitioner has not made a substantial showing of the denial of a constitutional right and because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. (See document for full details). Signed by Magistrate Judge Michelle H Burns on 12/17/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jeffrey Alan Schenck,

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Petitioner,

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vs.

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Charles L. Ryan, et al.,

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Respondents.

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CIV 13-0776-PHX-GMS (MHB)
REPORT AND RECOMMENDATION

TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:

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Petitioner Jeffrey Alan Schenck, who is confined in the Arizona State Prison

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Complex, South Unit, Florence, Arizona, has filed a pro se Petition for Writ of Habeas

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Corpus (hereinafter “habeas petition”) pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents

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filed an Answer on July 17, 2013 (Doc. 12). On August 13, 2013, Petitioner filed a Reply

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(Doc. 13). 9

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BACKGROUND

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On February 20, 2009, Petitioner was charged by indictment in the Superior Court of

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the State of Arizona with four counts of Molestation of a Child, Class 2 felonies and

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dangerous crimes against children. (Doc. 12-1, at 3.) The crimes charged were alleged to

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have occurred on four separate occasions against the same child under the age of 15. (Id.)

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Petitioner entered into a plea agreement with the State of Arizona on July 21, 2009, wherein

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Petitioner agreed to plead guilty to counts one and two, as amended to attempted molestation

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of a child, class 3 felonies and dangerous crimes against children, citing, in pertinent part,

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sections 13-1001, 1410, and 604.011 of Arizona Revised Statutes. (Docs. 12-1, at 7; 12-2,

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at 103.) The plea agreement provided that the crime of attempted molestation of a child, as

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a dangerous crime against children, carried a presumptive sentence of 10 years, a minimum

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sentence of 5 years and a maximum sentence of 15 years, and that probation up to a life term

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in length could also be imposed. (Id.) The parties stipulated that Petitioner be sentenced to

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an aggravated term of 12-years in prison on count one, and lifetime probation on count two,

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and that the State of Arizona would dismiss counts three and four of the indictment. (Id.)

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In the plea agreement, Petitioner agreed to waive and give up any “motions, defenses,

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objections, or requests which [Petitioner] has made or raised, or could assert hereafter, to the

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Court’s entry of judgment [] and imposition of a sentence [] consistent with this agreement.

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[Petitioner] acknowledges that by entering this agreement he[] will have no right of direct

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appeal.” (Doc. 12-1, at 8.) Petitioner also agreed to “judicial factfinding by preponderance

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of the evidence as to any aspect or enhancement of sentence.” (Id.) Petitioner agreed in open

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court to the following facts in support of his guilty plea to amended counts one and two of

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the indictment:

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Both incidents occurred on or near Mesa Junior High in Mesa, Arizona. On
February 9, 2009, Mr. Schenck knowingly molested or intentionally touched
. . . a child under the age of 15 years, [E.H.], by touching - having sexual
contact by touching her vagina or her private areas . . . over her clothing. And
on February 9, 20112, in Mesa, Mesa Junior High, in Mesa, Maricopa County,
[Petitioner] knowingly touched [E.H.], a child under the age of 15, touched her
outer clothing, her vagina, her private areas, for sexual gratification, on both
counts. ...[a]nd this is the same girl but two different dates, one February 9 and
one February 11[.]
(Doc. 12-2, at 111.)

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The court found that Petitioner’s plea was knowingly, intelligently, and voluntarily made and
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accepted the plea agreement. (Id., at 112.)
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Renumbered as §13-705, Laws 2008, Ch. 97, §1, Ch. 195, §1, respectively.

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The reference to February 9, 2011, was in error, as evidenced by the correction that
followed, and by the February 11, 2011 date charged in count two of the indictment.
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Petitioner appeared for sentencing on August 24, 2009, and the trial court sentenced

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him in accordance with the terms of the plea agreement to 12-years imprisonment on count

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one, and lifetime probation on count two. (Docs. 12-1, at 26; 12-2, at 116.)

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Petitioner timely filed his Notice of Post-Conviction Relief (“PCR”) and was

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appointed counsel. (Doc. 12-1, at 32, 36.) Counsel thereafter filed a notice with the court

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that he had completed his review of the record and that he was unable to find any claims to

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raise in post-conviction proceedings. (Id., at 40.) The court then ordered counsel to remain

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in an advisory capacity and set a 45-day deadline for Petitioner to file a pro per PCR petition.

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(Id., at 43.) On August 4, 2010, Petitioner filed his PCR petition, raising five claims:

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(1) Petitioner was “denied the right to have all the elements of the crimes
found in order to be sentenced pursuant to A.R.S. 13-604.01; Dangerous
Crimes Against Children, in violation of [Petitioner]’s 6th Amendment rights
of the U.S. Constitution and Art. 2 §3, 23 and 24 of the Arizona Constitution.”

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(2) Petitioner “was denied the right not to be placed twice in jeopardy for the
same offense, guaranteed by the 5th and 14th Amendments of the U.S.
Constitution and Article 2 §3, 4 and 10 of the Arizona Constitution.”

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(3) Petitioner “was denied the right to not be put twice in jeopardy pursuant to
the 5th and 14th Amendments of the U.S. Constitution and Article 2 §3, 4 and
10 of th Arizona Constitution when he was convicted of and sentenced to a
lesser and greater offense involving the same crime.”
(4) Petition “was denied the right to not be twice placed in jeopardy as
guaranteed by the 5th and 14th Amendments of the U.S. Constitution and
Article 2 §3, 4 and 10 of the Arizona Constitution.”
(5) Petitioner’s “right not to be subjected to cruel and unusual punishment,
guaranteed by the 8th Amendment of the U.S. Constitution and Article 2 §15
of the Arizona Constitution, was violated by the imposition of his sentence.”
(Doc. 12-1, at 51-71.)

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On November 23, 2010, the trial court dismissed Petitioner’s PCR petition, finding
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that Petitioner “failed to show any colorable claim for relief pursuant to Rule 32.1 of the
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Arizona Rules of Criminal Procedure.” (Doc. 12-2, at 3.) Petitioner filed a Motion for
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Reconsideration of the court’s summary dismissal of his PCR petition, which was denied by
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the trial court. (Id., at 35.) Petitioner thereafter filed a Petition for Review in the Arizona
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Court of Appeals on March 11, 2011, raising the following four claims:
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1. Petitioner’s right to Due Process of law was violated when the State failed
to allege, and the trial court failed to find, the “targeting” element necessary
to enhance his sentence pursuant to A.R.S. §13-604.01.

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2. Petitioner’s right to Due Process of law was violated when, contrary to the
legislative intent, his sentence was illegally enhanced pursuant to A.R.S. §13604.01 which does not require an additional element beyond that needed to
satisfy A.R.S. 13-1410.

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3. Petitioner’s right to Due Process of law was violated when the trial court
lacked jurisdiction to enhance his sentence pursuant to A.R.S. §13-604.01 for
an element of the offense not alleged in the original indictment.

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4. Petitioner’s right to Due Process of law was violated when he was
subjected to cruel and unusual punishment.
(Doc. 12-2, at 37-54.)

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On December 13, 2012, the Arizona Court of Appeals summarily denied review. (Id.,
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at 73.)
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Petitioner timely filed his habeas petition on April 18, 2013, advancing one ground
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for relief, that “[t]he trial court’s finding that [Petitioner]’s Due Process Claim was not
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‘colorable’ resulted in a decision contrary to Federal law as established by the Supreme Court
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of the United States.” (Doc. 1, at 6.) Specifically, he asserts that “[t]he factual basis for the
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plea agreement failed to establish the necessary facts constituting the ‘targeting’
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enhancement element for enhancing [Petitioner]’s sentence pursuant to A.R.S. §13-604.01.
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This failure violated the written terms of the plea agreement and [Petitioner]’s right to be
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sentenced according to the law in violation of Due Process under the 14th Amendment to the

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U.S. Constitution.” (Id.)
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Respondents urge the court to deny relief, arguing that Petitioner waived the right to
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challenge his sentence in his plea agreement, that he has not stated a cognizable claim, and
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alternatively, that his claim has no merit. (Doc. 12.)
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DISCUSSION
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Under Arizona law, a person commits the crime of molestation of a child by
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intentionally or knowingly engaging in or causing a person to engage in sexual contact,
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except sexual contact with the female breast, with a child who is under fifteen years of age,
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and is a class 2 felony. A.R.S. §13-1410. It is a class 2 felony punishable as a dangerous
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crime against children, with a presumptive 17-year sentence. Because Petitioner plead guilty

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to an attempted offense, it is a class 3 felony. A.R.S. §13-1001(C). Unless a specific

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sentence is otherwise provided by statute, a class 3 felony carries a presumptive sentence of

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3.5 years, which may be increased up to 8.75 years and decreased to a minimum of 2-years.

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A.R.S. §13-702(D). The crime of attempted molestation of a child, however, is considered

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a “dangerous crime against children in the second degree” and therefore subject to enhanced

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punishment, and carries a presumptive sentence of 10-years, a minimum sentence of 5-years,

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and a maximum sentence of 15-years. A.R.S.§13-604.013. Petitioner claims that the factual

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basis set forth on the record during his change of plea proceeding did not establish that his

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conduct “targeted” the victim, and that such a finding was a necessary prerequisite for the

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court to impose an enhanced sentence.

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enhancement as provided in section 604.01, something more than the age of the victim must

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be found, and that “something more” has been defined by Arizona courts as conduct that is

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focused on, directed against, aimed at, or targets a victim under the age of fifteen. (Doc. 1,

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at 12.)

He argues that, to activate the sentencing

APPEAL WAIVER

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Respondents argue that, by the express terms of the plea agreement, Petitioner waived

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his right to challenge his sentence. The relevant provisions read, in pertinent part, that

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“[u]nless t[he] plea is rejected by the court or withdrawn by either party, the Defendant

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hereby waives and gives up any and all motions, defenses, objections, or requests which

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he/she has made or raised, or could assert hereafter, to the Court’s entry of judgment against

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him/her and imposition of a sentence upon him/her consistent with this agreement,” that by

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agreeing to enter into the plea agreement “defendant consents to judicial factfinding by

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preponderance of the evidence as to any aspect or enhancement of sentence,” and that by

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pleading guilty defendant waives and gives up the “right to appeal.” (Doc. 12-1, at 15.)

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Petitioner initialed each of the paragraphs containing this language, and, by signing at the

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For ease of reference, former §13-604.01, now §13-705, will continue to be referred
to as §13-604.01.
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bottom, acknowledged that he had read and approved all previous paragraphs. (Id.) The trial

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court confirmed with Petitioner during the change of plea proceeding that he had read and

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understood all provisions of the plea agreement. (Doc. 12-2, at 108.)

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The terms of plea agreements are controlled by principles of contract law. United

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States v. Sandoval-Lopez, 122 F.3d 797, 800 (9th Cir. 1997). If a plea agreement contains

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a waiver of the right to seek review of a claim and the waiver is knowingly and voluntarily

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made4, then courts will enforce the waiver. See United States v. Rahman, 642 F.3d 1257,

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1259 (9th Cir. 2011). “Under the parole evidence rule, a court looks to, and enforces, the

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plain language of the contract and does not look to ‘extrinsic evidence ... to interpret ... the

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terms of an unambiguous written instrument.’” United States v. Nunez, 223 F.3d 956, 958

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(9th Cir. 2000) (citations omitted). Respondents assert that, because the sentence Petitioner

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received was consistent with the terms of the plea agreement, the provision wherein

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Petitioner waived his right to appeal and to raise any and all objections to a sentence

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consistent with the agreement should be enforced and his habeas petition dismissed.

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Petitioner, in his Reply, argues that Respondents are in error, because the cases cited by

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Respondents are “inapposite because they all involve plea agreements which are governed

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by federal law, not Arizona law,” and that “the Arizona Constitution and Arizona law

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expressly forbid any such waiver.” (Doc. 13, at 2) (emphasis in original).

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Petitioner is correct that a waiver of a right of direct appeal in state proceedings does

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not affect a defendant’s right to seek collateral relief in post-conviction proceedings on

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certain enumerated basis, and that Petitioner’s “appeal waiver” in his plea agreement can not

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be interpreted to deprive him of his right to seek collateral relief. See, Ariz.R.Crim.P. 32.1;

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Wilson v. Ellis, 176 Ariz. 121, 123; 859 P.2d 744, 746 (1993)(en banc). The authority he

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cites however, is not applicable, as Petitioner disregards the fact that he expressly agreed in

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his plea agreement to waive more than just his “appeal rights,” but any and all “motions,

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defenses, objections, or requests which he/she has made or raised, or could assert

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Petitioner does not challenge the voluntariness of the waiver.
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hereafter, to the Court’s entry of judgment against him/her and imposition of a sentence

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upon him/her consistent with this agreement.” (emphasis added). This language, while

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not explicitly referencing a PCR proceeding, is comprehensive enough to apply to post-

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conviction challenges to the judgment and sentence, and it is impossible to carve out from

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this language a different understanding or interpretation.

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Petitioner admitted during his change of plea proceedings sufficient facts to support

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Petitioner’s guilty pleas to the crime of attempted molestation of a child. (Doc. 12-2, at 111.)

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Petitioner’s sentence was also clearly consistent with the terms of the plea agreement. To

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the extent Petitioner challenges his judgment and sentence in this regard, the Court finds that

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Petitioner waived any objection thereto.
CLAIMS COGNIZABLE IN HABEAS PROCEEDINGS

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Respondents argue that Petitioner’s claim that the sentencing enhancement was not

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supported by a factual basis involves a violation of state law and is therefore not cognizable

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in habeas proceedings. See 28 U.S.C. §2254(a)(permitting a federal court to entertain a

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habeas application only on the claims that petitioner is in custody in violation of the

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Constitution or laws or treaties of the United States). Respondents claim that Petitioner

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asserts a “purported violation of Arizona Rule of Criminal Procedure 17.3, which requires

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a factual basis for guilty pleas.” (Doc. 12, at 10.) “[T]he due process clause does not impose

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on a state court the duty to establish a factual basis for a guilty plea absent special

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circumstances.” Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir. 1985) (collecting cases).

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A special circumstance might be “a defendant’s specific protestation of innocence.” Id.

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“Unless a plea is accompanied by protestations of innocence or other ‘special circumstances,’

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the Constitution does not require state judges to find a factual basis.” Loftis v. Almager, 704

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F.3d 645, 648 (9th Cir. 2012) (citing Rodgriguez, 777 F.2d at 528).

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Petitioner claims that the trial court did not have jurisdiction to sentence him because

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his guilty plea lacked a factual basis for all essential elements of the crime charged. (Doc.

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1, at 11, 13.) In support of his claim, Petitioner cites McCarthy v. U.S., 394 U.S. 467, 471

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(1969) (“[A] judge must determine that ‘the conduct which the defendant admits constitutes
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the offense charged in the indictment or information or an offense included therein to which

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the defendant has pleaded guilty.’ Requiring this ... is designed to ‘protect a defendant who

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is in the position of pleading voluntarily with an understanding of the nature of the charge

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but without realizing that his conduct does not actually fall within the charge.’”) (citing

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Fed.R.Crim.P. 11, Notes of Advisory Committee on Criminal Rules); see Hayes v.

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Kincheloe, 784 F.2d 1434, 1439 (9th Cir. 1986), cert. denied, 484 U.S. 871 (1987) (guilty

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plea was involuntary when defendant does not possess an understanding of the law in relation

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to the facts).

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The Court finds these cases inapplicable here, as Petitioner does not assert that he was

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unaware of the elements of the crime to which he plead, or claim that he did not admit

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sufficient facts to support a finding of guilt on the charges. The gravamen of Petitioner’s

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complaint is that the facts used to enhance his sentence were not found by the trial court, in

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violation of Petitioner’s right to Due Process of law under the 14th Amendment to the U.S.

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Constitution, and the holding of the U.S. Supreme Court in Apprendi v. New Jersey, 530

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U.S. 466 (2000).5
ENHANCED SENTENCE

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At the outset, Petitioner concedes that he waived, in his plea agreement, his right to

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have a jury determine any facts used to enhance his sentence, but, because in his plea

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agreement he consented to “judicial factfinding by a preponderance of the evidence as to any

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aspect or enhancement of sentence,” the failure of the trial court to find the “targeting”

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element of the offense supporting the enhancement “deprived the trial court of jurisdiction

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to impose an enhanced sentence.” (Doc. 1, at 13.)

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In State v. Williams, the Arizona Supreme Court held that to activate the special

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sentencing provisions of A.R.S. §13-604.01, there must be a finding that the offense conduct

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“focused on, directed against, aimed at, or targeted a victim under the age of fifteen.” 175

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Ariz. 98, 99; 854 P.2d 131, 132; (1993). Arizona courts have applied Apprendi when a

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Petitioner also cites Braxton v. U.S. 500 U.S. 344, 349 (1991) (fact supporting the
more serious offense must be “specifically established” on the record).
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defendant faces an enhanced sentence for any enumerated crime under A.R.S. §13-604.01.

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State v. Miranda-Cabrera, 99 P.3d 35, 41; 209 Ariz. 220, 226 (App. 2004). Although the

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appeal waiver language of Petitioner’s plea agreement spells out that Petitioner agreed to

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waive his right to object to a sentence consistent with the plea agreement (here, Petitioner

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received the 12-years in prison he bargained for), that language is interwoven with the

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agreement to judicial factfinding.6 Thus, while Petitioner waived some of his rights, by the

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plain language of the plea agreement he retained his right to judicial factfinding by a

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preponderance of the evidence as to any enhancement of his sentence.

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The U.S. Supreme Court in Blakely v. Washington held that “[w]hen a defendant

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pleads guilty, the State is free to seek judicial sentence enhancements so long as the

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defendant either stipulates to the relevant facts or consents to judicial factfinding.” 542 U.S.

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296, 310 (2004). Here, although Petitioner consented to judicial factfinding, Petitioner

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argues that the trial court did not place on the record her factfinding as to the enhancement

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of sentence.

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Thus, the question presented becomes: is the failure of the court to make factual

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findings to support a sentence enhancement in the context of a plea agreement a violation of

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the Constitution or any law or treaty of the United States? Generally, in the context of a

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guilty plea, the United States Constitution does not require a trial court to obtain a factual

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basis, “unless a plea is accompanied by protestations of innocence or other ‘special

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circumstances.’” Loftis, 704 F.3d at 648 (finding claim that trial court failed to find factual

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basis for no contest plea, which was unaccompanied by protestations of innocence, did not

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“present a constitutional issue cognizable under 28 U.S.C.§ 2254"). With respect to his claim

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that the trial court failed to obtain a factual basis to support an enhanced sentence, Petitioner

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Respondents argue that Petitioner waived his right to appeal his sentence based on
Apprendi/Booker grounds, and that waiver is enforceable. U.S. v. Cortez-Arias, 425 F.3d
547, 548 (9th Cir. 2005). That stands to reason, “[a]bsent some indication that the parties
intended otherwise.” U.S. v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005). Here, arguably
the language in the plea agreement suggests the parties intended otherwise.
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makes no claim that he is innocent or present any special circumstance to undermine the

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applicability of the enhancement.

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On the contrary, Petitioner plead guilty to 2 counts of an indictment, charges that

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included the statutory enhancement, §13-604.01. (Doc. 12-1, at 7.) Although Petitioner plead

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guilty to amended charges, the enhancement provision was applicable to the amended

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offense, as set forth in the guilty plea section of Petitioner’s plea agreement. (Id.) The listed

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sentencing range for the offense also reflected the enhancement. Furthermore, Petitioner was

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represented by counsel. The trial court also advised Petitioner that he was pleading guilty

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to “dangerous crimes against children in the second degree.” (Doc. 12-2, at 106.) Clearly,

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Petitioner was put on notice of the applicability of the sentencing enhancement to his guilty

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plea.

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Even assuming, arguendo, that there was Constitutional error in the trial court’s failure

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to place on the record its factfinding as to the enhancement of sentence, the error entitles

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Petitioner to relief only if the error is not harmless. Apprendi errors are subject to harmless

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error analysis. See Washington v. Recuenco, 548 U.S. 212, 218-22 (2006). An error is

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harmless if the court finds beyond a reasonable doubt that the result would have been the

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same absent the error. United States v. Zepeda-Martinez, 470 F.3d 909, 913 (9th Cir. 2002)

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(en banc) (citation omitted); see also, Walker v. Martel, 709 F.3d 925, Fn 4 (9th Cir. 2013)

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(even if the requirements of 28 U.S.C. §2254(d) are satisfied, habeas relief nevertheless

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requires a further showing of actual prejudice).

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Ample evidence existed in the record for the trial court to find facts supporting the

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enhancement of Petitioner’s sentence. Petitioner was a 34-year old junior high school

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teacher and the victim was one of his 14-year old students. (Doc. 12-1, at 10-12; Doc. 21-2,

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at 126-29.) Petitioner admitted that both incidents involved the intentional touching of the

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14-year old victim’s private parts for sexual gratification, and at least one of the incidents

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occurred in the classroom. (Doc. 12-1, at 111; Doc. 12-1, at 10.) Petitioner’s actions clearly

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were “focused on, directed against, aimed at, or targeted a victim under the age of fifteen.”

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Williams, 854 P.2d at 132; 175 Ariz. at 99.
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Additionally, as the Arizona Supreme Court has observed, “[a]s a practical matter, the

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question of whether the child victim is the target of the defendant’s criminal conduct will

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rarely be an issue given the nature of the crimes listed in A.R.S. §13-604.01. It is impossible

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to imagine how sexual assault, molestation, sexual conduct, commercial sexual exploitation,

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child abuse, kidnapping, sexual abuse, taking a child for the purpose of prostitution, child

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prostitution, and involving or using minors in drug offenses could be committed without

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targeting minors.” Williams, 175 Ariz. at 103, 854 P.3d at 136-37 (emphasis added). In

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State v. Sepahi, the Arizona Supreme Court held that the defendant’s intent to shoot the

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victim, who happened to be a minor, was sufficient to constitute a dangerous crime against

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children. 206 Ariz. 321, 324; 78 P.3d 734, 735 (2003); see also Miranda-Cabrera, 209 Ariz.

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at 220 (defendant convicted of second-degree murder in death of child - sentence properly

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enhanced when defendant lead family, including child, into desert and abandoned them).

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This Court finds beyond a reasonable doubt that the result in Petitioner’s case would

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have been the same absent any error by the trial court with regard to its judicial factfinding,

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considering the facts in the record supporting the enhanced sentence, the notice to Petitioner

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that the enhancement would be applicable, and the stipulation to the enhanced sentence.
CONCLUSION

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Petitioner waived in his plea agreement his right to challenge his judgment and

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sentence; Petitioner consented to judicial factfinding of any facts used to enhance his

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sentence; and, any error on the part of the trial court with regard to its judicial factfinding is

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harmless beyond a reasonable doubt. The Court will therefore recommend that Petitioner’s

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Petition for Writ of Habeas Corpus be denied and dismissed with prejudice.

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IT IS THEREFORE RECOMMENDED that Petitioner’s Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH

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PREJUDICE.

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IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave

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to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a

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substantial showing of the denial of a constitutional right and because the dismissal of the
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Petition is justified by a plain procedural bar and jurists of reason would not find the

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procedural ruling debatable.

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This recommendation is not an order that is immediately appealable to the Ninth

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Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of

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Appellate Procedure, should not be filed until entry of the district court’s judgment. The

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parties shall have fourteen days from the date of service of a copy of this recommendation

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within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1);

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Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen

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days within which to file a response to the objections. Failure timely to file objections to the

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Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report

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and Recommendation by the district court without further review. See United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any

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factual determinations of the Magistrate Judge will be considered a waiver of a party’s right

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to appellate review of the findings of fact in an order or judgment entered pursuant to the

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Magistrate Judge’s recommendation. See Rule 72, Federal Rules of Civil Procedure.

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DATED this 17th day of December, 2013.

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