Opinion
No. 1 CA-CR 18-0658 PRPC
02-21-2019
STATE OF ARIZONA, Respondent, v. BRENDAN JOSEPH MURPHY, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Brendan Joseph Murphy, Kingman Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Petition for Review from the Superior Court in Maricopa County
No. CR2014-159629-001
The Honorable Danielle J. Viola, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
Brendan Joseph Murphy, Kingman
Petitioner
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.
PERKINS, Judge:
¶1 Brendan Murphy petitions this court for review from the dismissal of his petition for post-conviction relief of-right ("PCR") filed pursuant to Arizona Rule of Criminal Procedure ("Rule") 32.1. We have considered the petition for review and, for the reasons stated, grant review and deny relief.
¶2 In 2016, Murphy pled guilty to one count of molestation of a child ("Count 1") and one count of attempted molestation of a child ("Count 2"). As set forth in the plea agreement, Murphy stipulated to a term of 10 years' imprisonment on Count 1 and lifetime probation on Count 2, scheduled to commence upon his release from prison.
¶3 After the superior court sentenced him in accordance with the plea agreement, Murphy timely commenced Rule 32 proceedings. Appointed counsel notified the court that he found no colorable claims for relief, and Murphy filed a pro se PCR arguing that: (1) trial counsel was ineffective by failing to request a hearing to determine whether the victim's mother had pressured the victim or otherwise "tainted" her statements to police; (2) trial counsel was ineffective by failing to argue that the statute proscribing child molestation unconstitutionally shifts the burden of proof to the defendant to disprove sexual motivation; (3) the superior court judge presiding over his settlement conference made a biased statement in favor of the prosecution (asserting the State would not "charge someone who is just changing a diaper with a sex crime"); and (4) the factual basis set forth at the change of plea hearing is insufficient to support his convictions.
¶4 The superior court summarily dismissed the PCR, and this petition for review followed. Absent an abuse of discretion or error of law, this Court will not disturb a superior court's ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). The petitioner bears the burden to show the superior court abused its discretion. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).
¶5 On review, Murphy reasserts each of his PCR claims. By entering a guilty plea, however, Murphy waived "all non-jurisdictional defects and defenses, including claims of ineffective assistance of counsel, except those that relate to the validity of [his] plea." State v. Leyva, 241 Ariz. 521, 527, ¶ 18 (App. 2017) (internal quotation omitted). Accordingly, the relevant inquiry is whether Murphy knowingly, intelligently, and voluntarily entered the plea.
¶6 When questioned by the superior court at the change of plea hearing, Murphy confirmed that: (1) he can both read and understand English; (2) he read the plea agreement, reviewed it with counsel, and understood its terms; and (3) the factual basis set forth by defense counsel was correct. As reflected in the change of plea hearing transcripts, Murphy "displayed normal communication skills and thought processes" and demonstrated "an understanding of his rights and the consequences of waiver." State v. Brewer, 170 Ariz. 486, 496 (1992). Murphy has not contested his mental fitness or otherwise argued that his decision to plead guilty was involuntary. Instead, he merely asserts that we "cannot reasonably determine" how the superior court's comments during the settlement conference affected his decision to plead guilty. Murphy does not assert that the court's comments actually influenced his decision to accept the plea offer nor did he raise such a claim in his PCR. Therefore, he has waived his challenge to the superior court's settlement conference statements and his claim that trial counsel was ineffective because counsel failed to request an evidentiary hearing regarding the victim's statements to police.
¶7 Turning to the remaining issues, Murphy relies on May v. Ryan, 245 F.Supp.3d 1145 (D. Ariz. 2017), to argue that the factual basis underlying his plea agreement is insufficient because it "lacks any indication of . . . sexual intent." In May, the federal district court held that the State is required to prove sexual intent as an "inherent" element of child molestation, and the statute proscribing child molestation, A.R.S. § 13-1410 (2010), unconstitutionally shifts the burden of proof to the defendant to disprove sexual intent. Id. at 1159-65. As the superior court correctly stated in dismissing Murphy's PCR, we are not bound by federal district court decisions. See State v. Smyers, 207 Ariz. 314, 318 n.4 (2004) ("The courts of this state are bound by the decisions of [our supreme] court and do not have the authority to modify or disregard [its] rulings."); Arpaio v. Figueroa, 229 Ariz. 444, 447, ¶ 11 (App. 2012) (noting decisions of federal district courts concerning state law are not binding on this court). Our supreme court has determined that A.R.S. § 13-1410 is constitutional. See State v. Holle, 240 Ariz. 300, 309, ¶¶ 43-44 (2016).
¶8 At the change of plea hearing, Murphy's counsel told the superior court that Murphy had directly touched the genitals of the victim, a child under fifteen years of age, and Murphy expressly and unambiguously confirmed the veracity of that account to the court. Therefore, Murphy's convictions are supported by a sufficient factual basis and trial counsel was not ineffective by failing to challenge the adequacy of that factual basis. See State v. Salinas, 181 Ariz. 104, 106 (1994) (explaining a factual basis "does not require a finding of guilty beyond a reasonable doubt" and can be established by evidence "derived from any part of the record including presentence reports, preliminary hearing transcripts, or admissions of the defendant.")
¶9 The superior court did not abuse its discretion in summarily dismissing Murphy's PCR. Accordingly, we grant review but deny relief.