State v. Swatsenburg ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
ROHN DWAYNE SWATSENBURG, Petitioner.
No. 1 CA-CR 17-0568 PRPC
FILED 3-22-2018
Petition for Review from the Superior Court in Maricopa County
No. CR2013-418126-001
The Honorable Rosa Mroz, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Robert E. Prather
Counsel for Respondent
DeBrigida Law Offices, PLLC, Glendale
By Ronald M. DeBrigida, Jr.
Counsel for Petitioner
STATE v. SWATSENBURG
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the court, in
which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.
J O H N S E N, Judge:
¶1 Rohn Dwayne Swatsenburg petitions this court for review of
the dismissal of his petition for post-conviction relief, filed pursuant to
Arizona Rule of Criminal Procedure 32.1. We have considered the petition
for review and the response and, for the reasons stated, grant review but
deny relief.
¶2 Swatsenburg was indicted in 2013 on three charges of sexual
conduct with a minor, two charges of contributing to the delinquency of a
minor and one charge of misdemeanor assault. The victim of each charged
offense was the same child. The offenses allegedly took place between 1989
and 2005. Swatsenburg pled guilty to one count of molestation of a child, a
Class 2 felony and dangerous crime against children, and two counts of
attempted molestation of a child, each a Class 3 felony and dangerous crime
against children, stipulating to a sentence of prison time within the
statutory sentencing range on the Class 2 felony and lifetime probation on
the others.
¶3 At both the settlement conference and the change-of-plea
hearing, the superior court advised Swatsenburg of the applicable
sentencing ranges. Swatsenburg responded that he understood the ranges.
Before the sentencing hearing, Swatsenburg's counsel filed a memorandum
asking for a mitigated sentence, citing Swatsenburg's military service,
acceptance of responsibility, age, positive risk assessment and polygraph
results that showed no other victims. Counsel also explained that
Swatsenburg had a learning disability and was sexually abused by an adult
when he was a child. In addition, counsel told the court that Swatsenburg
suffered a serious head trauma during his military service that resulted in
a five-month hospitalization and continuing seizures and suicidal ideation.
At sentencing, Swatsenburg's counsel emphasized that his client had
confessed to the crimes. Counsel further explained that Swatsenburg was
"lower functioning, mentally" and "does process information in a different
manner." Swatsenburg's wife spoke, described his family support and
asked for a mitigated sentence. The court also heard a videotaped
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STATE v. SWATSENBURG
Decision of the Court
statement by the victim, who by then was an adult living out of state. The
victim's mother stated that unfortunately, the counseling her daughter
received after the abuse was not from credentialed providers, and stated
that her daughter married a sex offender.
¶4 The court sentenced Swatsenburg to an aggravated term of 20
years' flat time. In imposing sentence, the court stated it had considered the
emotional harm suffered by the victim, the long period of time over which
the abuse occurred and the violation of trust Swatsenburg had caused. On
the other hand, the court stated it also considered that Swatsenburg was
genuinely remorseful; that he had turned himself in to authorities and
agreed to enter a plea to spare the victim from having to testify; his age; that
he suffered from mental and physical health issues including seizures; and
that there were no other victims of his abuse.
¶5 Swatsenburg filed a timely notice of post-conviction relief.
After review, appointed counsel stated that he could find no colorable
claims to raise in a petition for relief. Swatsenburg then filed a pro per
petition for relief, claiming ineffective assistance of counsel and alleging his
trial attorney had failed to properly advise him of the sentencing ranges for
the offenses and at sentencing had failed to present mitigating evidence of
his seizures and his minimal risk to re-offend. Swatsenburg also claimed
that at sentencing, his attorney presented insufficient detail of his physical
and mental health issues and did not challenge the statements of the
victim's mother. The State filed a response asserting that Swatsenburg had
failed to demonstrate that his counsel was ineffective, given that his counsel
had offered mitigation evidence at sentencing; that his claims of ineffective
assistance did not attack the validity of the plea; and that any claims of
ineffective assistance before the plea were not viable. The State further
argued that Swatsenburg could not show he was prejudiced by any
purported ineffective assistance of counsel. The superior court summarily
dismissed the petition, stating it agreed with the State's arguments.
¶6 In his petition for review, Swatsenburg argues the superior
court abused its discretion in dismissing his petition for relief without an
evidentiary hearing. Swatsenburg asserts his counsel was ineffective
because he failed to properly and thoroughly advise him of the sentencing
ranges he faced, did not present mitigating evidence at sentencing and
failed to address comments by the victim's mother at sentencing.
¶7 Absent abuse of discretion, this court will not disturb a
superior court's ruling on a petition for post-conviction relief. See State v.
Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). To state a colorable claim of
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STATE v. SWATSENBURG
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ineffective assistance of counsel, Swatsenburg must show that his counsel's
performance fell below objectively reasonable standards and that the
deficient performance prejudiced him. Strickland v. Washington, 466 U.S.
668, 687-88, 692-93 (1984). A colorable claim is one that, if the allegations
are true, would probably have changed the outcome. State v. Amaral, 239
Ariz. 217, 219-20, ¶¶ 10-11 (2016). If a petitioner fails to make a sufficient
showing on either prong of the Strickland test, the superior court need not
address the other prong. State v. Salazar, 146 Ariz. 540, 541 (1985).
¶8 Swatsenburg presented nothing beyond his own
unsupported assertions to show that his counsel was ineffective. To begin
with, nothing in the record supports any contention that he misunderstood
the applicable sentencing ranges. The sentencing ranges were thoroughly
discussed at both the settlement conference and the change-of-plea hearing,
and, in response to questions from the judge, Swatsenburg said he
understood them. There is no indication that he did not enter his plea
knowingly, intelligently and voluntarily. Even if his lawyer was initially
mistaken about the sentencing ranges he faced, as Swatsenburg alleges but
has not proved, Swatsenburg cannot show any prejudice. See State v.
Rosario, 195 Ariz. 264, 268, ¶ 23 (App. 1999) (petitioner alleging ineffective
assistance of counsel must offer more than "mere speculation").
¶9 The record also refutes Swatsenburg's claim that his counsel
failed to present mitigating evidence. As detailed above, his lawyer argued
several mitigating factors at sentencing. Swatsenburg also spoke on his
own behalf at sentencing, discussing his mental health and physical
challenges. As for his contention that his lawyer should have addressed the
impression left by testimony by the mother of the victim that the victim had
not received receive family support, Swatsenburg fails to show that he was
prejudiced as a result. Indeed, the superior court specifically noted on the
record that it had not aggravated Swatsenburg's sentence based upon the
mother's testimony and that it was not using that against him.
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STATE v. SWATSENBURG
Decision of the Court
¶10 "[A] petition that fails to state a colorable claim may be
dismissed without an evidentiary hearing." State v. Kolmann, 239 Ariz. 157,
160, ¶ 8 (2016). Because Swatsenburg has failed to present any colorable
claims of ineffective assistance of counsel, the superior court did not abuse
its discretion by summarily dismissing the petition without a hearing.
¶11 For the foregoing reasons, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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