Mosakowski v. Ryan

• Decision Date: 09 January 2017
• Docket Number: No. CV 15-02010-PHX-GMS (DMF),CV 15-02010-PHX-GMS (DMF)
• Parties: Paul Mark Mosakowski, Petitioner, v. Charles L. Ryan, Attorney General of the State of Arizona, Respondents.
• Court: U.S. District Court — District of Arizona

Paul Mark Mosakowski, Petitioner, v. Charles L. Ryan, Attorney General of the

State of Arizona, Respondents.

No. CV 15-02010-PHX-GMS (DMF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

January 9, 2017

REPORT AND RECOMMENDATION

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

Petitioner Paul Mark Mosakowski ("Petitioner" or "Mosakowski"), who is confined in the Arizona State Prison Complex-Douglas, filed a pro se Petition for Writ of Habeas Corpus ("Petition") on October 7, 2015 (Doc. 1). Petitioner was convicted in the Maricopa County Superior Court, case #'s 2011-139097, 2012-009010, 2012-009011, and 2012-009012, of robbery and was sentenced to a 20-year aggregate term of imprisonment followed by probation. Petitioner names Charles L. Ryan as Respondent and the Arizona Attorney General as an Additional Respondent. On October 19, 2015, this Court ordered Respondents to answer the Petition, allowing a limited answer (Doc. 4). Respondents filed a limited answer (Doc. 14), and Petitioner filed a reply (Doc. 15). As explained below, the Court recommends that the Petition be denied and dismissed with prejudice.

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I. BACKGROUND

A. Proceedings Leading to Convictions and Sentences

Petitioner was charged in four cases with twenty five separate robberies, many of which involved Petitioner's use of a real or toy gun and were charged as armed robberies (Exhibit P; Doc. 14-1 at p. 87-99)¹.² At an on the record settlement conference (Exhibit U; Doc. 14-1 at p. 145-171), the judge cautioned Petitioner that if he went to trial and lost, there was a significant risk of consecutive incarceration sentences so numerous and long that he could spend the rest of his life in prison (Exhibit U; Doc. 14-1 at p. 149-153). The judge said, "I have to explain to you the good and the bad. I have to explain to you all the possibilities and all the [parameters] and so unfortunately that could be, you know, a life sentence basically if everything gets stacked" (Exhibit U; Doc. 14-1 at p. 153).

At the settlement conference, Petitioner brought to the judge and counsel's attention his early confessions to and cooperation with law enforcement. The judge discussed with counsel following up with the detective about whether or not the detective had promised concurrent sentences in exchange for Petitioner's admissions (Exhibit U; Doc. 14-1 at p. 145-171), but the judge also made clear that "at the end of the day, the County Attorney" has the power to determine the charges and any plea offer, not the detective (Exhibit U; Doc. 14-1 at p. 152). "So the detective or sergeant doesn't have the authority [to promise consecutive time, the prosecutors] do" (Id.). This was echoed by defense counsel (Id.). Petitioner also said about his confession and cooperation, "I think a lot of it was to get it off my mind because I'm not like that" (Exhibit U; Doc. 14-1 at p. 165-166).

After the settlement conference, Petitioner accepted plea agreements covering the four cases (Exhibits J, K, L, M; Doc. 14-1 at p. 44-48, p. 49-53, p. 54-59, p. 60-64). Incase # CR2012-009010, the stipulated sentences regarding counts one and three stated that the sentences of not less than 10 years but not more than 12, 5 years would "run consecutively to each other for a term of not less than 20 years but not more than 25 years" and, likewise, for case # CR2012-009011, the stipulated sentences regarding counts one and two stated that the sentences of not less than 10 years but not more than 12, 5 years would "run consecutively to each other for a term of not less than 20 years but not more than 25 years" (Exhibit K, L; Doc. 14-1 at p. 50, p. 55).

At the change of plea hearing (consolidating all four cases) and before Petitioner plead guilty, the court summarized that with the various consecutive and concurrent sentences Petitioner was receiving under the combined plea agreements, he would be "going to go to prison between 20 and 25 years" and would be on probation on several charges upon his release from incarceration (Exhibit V; Doc. 14-2 at p. 21). Again, the Court summarized, "Some [sentences] run concurrently, some run consecutively, but it's a total of 20 to 25 years in prison followed by a supervised probation. Is that your understanding of all of these pleas, sir" (Id.) Petitioner replied, "Yes, your honor" (Id.)

Also before any guilty pleas at the change of plea hearing, the court asked if Petitioner had read each of the plea agreements thoroughly and "agree[d] with the contents of all four plea agreements?" to which Petitioner answered "Yes, Your Honor" (Exhibit V; Doc. 14-2 at p. 11-12). Petitioner also answered that the plea agreements contained his entire agreements with the state, that he was not coerced or threatened into pleading guilty, and he was not made promises beyond those in the plea agreement (Exhibit V; Doc. 14-2 at p. 13). The Court accepted the plea agreements (Exhibits C, D, E, F; Doc. 14-1 at p. 9-11, p. 12-15, p. 16-19, p. 20-23).

Between the change of plea and sentencing on the plea agreements, Petitioner, through counsel, moved to withdraw from the plea agreements, claiming they were unduly harsh, that he would like to negotiate a more lenient offer, and that Petitioner's mother passed away which changed the way Petitioner felt about the plea offer (Exhibit N; Doc. 14-1 at p. 65-77). The motion to withdraw was opposed and denied (Exhibits O,Q, R, S, T, W; Doc. 14-1 at p. 78-85, p. 115-121, p. 122-129, p. 130-137, p. 138-144, Doc. 14-2 at p. 45-46).

Pursuant to the plea agreements, Petitioner was sentenced to an aggregated total of twenty years incarceration (after taking concurrent sentences into account) as well as probation to follow the incarceration; in addition, seven charges were dismissed (Doc. 1 at p. 2; Q, R, S, T, W; Doc. 14-1 at p. 115-121, p. 122-129, p. 130-137, p. 138-144, Doc. 14-2 at p. 43-76).³ The sentence imposed was the lowest possible imprisonment under the plea agreements (Exhibits J, K, L, M; Doc. 14-1 at p. 44-48, p. 49-53, p. 54-59, p. 60-64).

B. PCR Proceedings

1. First PCR Proceedings

On April 26, 2013, Petitioner filed a timely notice of post-conviction relief ("PCR") (Ex. X; Doc. 14-2 at p. 77-81). Petitioner filed a notice to amend his PCR notice to include all four of his case numbers, which was granted (Exhibits Y, AA; Doc. 14-2 at p. 82-108, p. 112-114). Because Petitioner also sought to represent himself in PCR proceedings, the Office of the Legal Advocate filed a motion to determine counsel (Exhibits Y, Z; Doc. 14-2 at p. 82-108, p. 109-111). The court denied Petitioner's request to represent himself and appointed the Office of the Legal Advocate to represent Petitioner (Ex. AA; Doc. 14-2 at p. 112-114).

On July 23, 2014, the Office of the Legal Advocate filed a notice of completion of post-conviction review stating that after reviewing the materials in the case, counsel was "unable to raise any issues on behalf of [Petitioner] in post-conviction relief proceedings" (Exhibit BB; Doc. 14-2 at p. 115-118). The court ordered counsel to send case materials to Petitioner, and set a deadline for Petitioner to file a pro se PCR petition (Exhibit.CC; Doc. 14-2 at p. 119-123).

On September 8, 2014, Petitioner filed a timely pro se PCR petition supported by his own affidavit and the transcript of the settlement conference (Exhibits DD, EE; Doc.14-2 at p. 124-168, p. 169-174). Citing Strickland v. Washington, 466 U.S. 668 (1984), and Missouri v. Frye, 132 S. Ct. 1399 (2012), Petitioner claimed that his counsel had been ineffective for failing to investigate "the relevant facts surrounding [Petitioner's] allegation of promised leniency" by the detective and asserted that "there is a reasonable likelihood that the outcome of [Petitioner's] sentencing and plea negotiation process would have been different if [defense counsel] had investigated [Petitioner's] claim" that the police "promised concurrent sentences in all cause numbers in exchange for his admissions of guilt" (Id.).

The state responded in opposition and Petitioner replied (Exhibits FF, GG; Doc. 14-2 at p. 175-189, p. 190-195). On January 6, 2015, the court denied relief (Exhibit HH; Doc. 14-2 at p. 196-199). The court noted that the record did "not show there was ever promise of leniency in the form of concurrent sentences by the detective who interviewed Petitioner" (Exhibit HH; Doc. 14-2 at p. 198). While the trial court ruled that the issue was waived by Petitioner in his guilty plea, the trial court addressed the ineffective assistance of counsel claim substantively:

Petitioner has failed to show ineffective assistance of counsel pursuant to Strickland. Petitioner raised the issue regarding his discussions about his cases with the detective in the settlement conference. The prosecutor acknowledged that he was unaware of any discussions. However, even upon hearing about it during the settlement conference, the prosecutor did not change the offer. His intent was for [Petitioner] to serve 20-25 years in prison followed by probation for the approximately twenty-eight felonies he was charged within four cases. Petitioner's attorney was not ineffective. Moreover, case law is clear that "... to state a colorable claim, the allegation that a petitioner would not have pleaded guilty but for counsel's deficient performance must be accompanied by an allegation of specific facts which would allow a court to meaningfully assess why that deficiency was material to the plea decision." Here there has been [no] such showing, and the record is clear that Petitioner was facing decades longer in prison had he rejected the plea.

The Court also notes that in his Motion to Withdraw from Plea Agreement dated February 26, 2013 Petitioner did not argue that he was to receive concurrent sentences based on some alleged discussions with the detective.

Rather, he cites that he believed the plea was too harsh and that his mother had passed away while he was awaiting sentencing

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