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State v. Wackler

Court of Appeals of Arizona, Second Division

September 24, 2015

The State of Arizona, Respondent,
v.
Kenneth Gerald Wackler Jr., Petitioner.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Petition for Review from the Superior Court in Maricopa County No. CR2011134635001DT, The Honorable Harriett Chavez, Judge.

William G. Montgomery, Maricopa County Attorney By Robert E. Prather, Deputy County Attorney, Phoenix Counsel for Respondent

Kenneth Gerald Wackler Jr., Florence In Propria Persona

Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly [1] concurred.

MEMORANDUM DECISION

VÁSQUEZ, Presiding Judge

¶1 Kenneth Wackler seeks review of the trial court's order denying his of-right petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly abused its discretion. State v. Swoopes, 216 Ariz. 390, 4, 166 P.3d 945, 948 (App. 2007). Wackler has not met his burden of demonstrating such abuse here.

¶2 Wackler pled guilty to sexual conduct with a minor and two counts of attempted sexual conduct with a minor. Consistent with the plea agreement, the trial court sentenced Wackler to an eighteen-year prison term for sexual conduct and suspended the imposition of sentence for Wackler's attempt convictions, placing him on terms of lifetime probation.

¶3 Wackler sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but was "unable to raise any claims in post-conviction relief proceedings on [Wackler's] behalf." Wackler then filed a pro se petition, arguing his trial counsel had been ineffective in failing to advise him of various rights related to the grand jury proceedings, to challenge the indictment, and to provide him with a transcript of his interview with police. He asserted that, as a result, he was improperly coerced into pleading guilty because he lacked an understanding of the strength of the state's case. He also asserted that his counsel failed to inform him "of his right to sever" the charged offenses, that he was "unlawfully sentence[d] . . . to multiple sentences for the same offense, " and that the factual basis for his guilty plea was insufficient.

¶4 The trial court summarily denied relief, concluding that, by pleading guilty, Wackler had waived his claims and was "precluded from gaining relief on this claim of ineffective assistance of counsel." The court further stated Wackler had not demonstrated counsel's conduct was unreasonable or that he had been prejudiced. This petition for review followed the court's denial of Wackler's motion for rehearing.

¶5 Wackler presents numerous issues in his petition for review. He first asserts the trial court erred in failing to sever the charges pursuant to Rule 13.4(a), Ariz. R. Crim. P., "after learning of the unlawful multiplicitous indictment." Wackler did not raise this claim in his petition below, instead asserting counsel was ineffective for failing to seek severance and raise the multiplicity issue. We need not address claims raised for the first time on review. Cf. State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980). But, in any event, Wackler has not demonstrated his indictment was multiplicitous. An indictment is multiplicitous when it charges a single offense in multiple counts. State v. Brown, 217 Ariz. 617, 7, 177 P.3d 878, 881 (App. 2008). Wackler's indictment unambiguously describes eight separate offenses. Nor has Wackler shown severance would have been "necessary to promote a fair determination" of his guilt or innocence, as required for severance under Rule 13.4(a).

¶6 Wackler further asserts the trial court coerced him into pleading guilty. He did not raise this claim below and, in any event, does not describe any improper coercion by the trial court. Instead, at a settlement conference, the court advised Wackler that the evidence against him was "pretty strong" and correctly informed him he would spend his life in prison if convicted as charged. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("While confronting a defendant with the risk of more severe punishment clearly may have a 'discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable'-and permissible 'attribute of any legitimate system which tolerates and encourages the negotiation of pleas.'"), quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973) (alteration in Bordenkircher). Accordingly, we do not address this argument further. Cf. Ramirez, 126 Ariz. at 468, 616 P.2d at 928.

¶7 Wackler next argues the trial court erred in imposing lifetime probation, "amounting to a rejection of the plea." To the extent Wackler raised this claim below, it plainly does not warrant relief given that the plea agreement expressly called for lifetime probation to be imposed. Wackler further suggests that imposing probation resulted in improper multiple "double punishment" for the same conduct. But this claim necessarily fails because Wackler admitted to three separate offenses occurring at different times.

¶8 In several related arguments, Wackler complains the trial court improperly rejected his claim of ineffective assistance of counsel. We agree with Wackler that he is permitted to raise a claim of ineffective assistance of counsel; he can only raise such a claim, however, to the extent that counsel's deficiencies relate to the validity of his plea. See State v. Quick, 177 Ariz. 314, 316, 868 P.2d 327, 329 (App. 1993) (by entering guilty plea defendant waives all nonjurisdictional defects, including claim of ineffective assistance of ...


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