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Schmieding v. Commonwealth

United States District Court, M.D. Pennsylvania

June 21, 2018

KARL JOSEPH SCHMIEDING, Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA, HUNTINGDON COUNTY DISTRICT ATTORNEYS OFFIC, et al., Respondents.

          MEMORANDUM

          HON. JOHN E. JONES III JUDGE.

         Petitioner Karl Joseph Schmieding (“Petitioner” or “Schmieding”), a state inmate currently confined at the State Correctional Institution at Forrest (SCI-Forrest), Marienville, Pennsylvania, initially filed his petition (Docs. 1, 7) for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 5, 2011, seeking relief from his pleas of guilty to all counts in Court of Common Pleas of Huntingdon County, Pennsylvania, criminal case CP-31-CR-0000465-2005, and Court of Common Pleas of Franklin County, Pennsylvania, criminal docket number CP-31-0000074-2006. (Doc. 1, p. 1). The matter is proceeding via a second amended petition, dated August 25, 2017. (Doc. 42). The second amended petition is ripe for disposition. (Docs. 42, 43, 50, 52, 53). For the reasons that follow, the Court will deny the petition for writ of habeas corpus.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. State Court Proceedings

         The Superior Court of Pennsylvania, in considering Schmieding's appeal of the denial of relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§9541-9546, set forth the following relevant procedural background:

On September 8, 2006 [sic][1], Appellant pled guilty to various sexual offenses against minors. At [Huntingdon County] docket number CP-31-0000465-2005, Appellant entered a guilty plea to Photographing a Child Involved in Prohibited Sexual Acts, Possession of Child Pornography, Contact with a Minor for the Purpose of Engaging in Sexual Abuse, Unlawful Use of a Computer, Unlawful Contact with a Minor, and four counts of Indecent Assault. [18 Pa.C.S.A. §§ 6312(b); 6312(d); 6318(a)(5); 7611(a)(1); 6318(a)(1); and 3126, respectively.] At [Franklin County] docket number CP-31-0000074-2006, Appellant entered a plea to 13 counts of Possession of Child Pornography and one count of Unlawful Use of a Computer. [18 Pa.C.S.A. §§ 6312(d) and 7611(a)(1), respectively.] After reviewing a pre-sentence investigation report (“PSI”), the trial court sentenced appellant to an aggregate term of incarceration of 89 ½ to 215 months. Appellant did not pursue a direct appeal.
On September 17, 2006, Appellant filed a counseled PCRA petition. An amended PCRA petition followed on September 28, 2012. Although a hearing was conducted on January 9, 2014, Appellant's [PCRA] counsel was subsequently disbarred, for reasons not of record, and new counsel was appointed. A new evidentiary hearing was held on October 3, 2014. The PCRA denied Appellant's petition.

(Doc. 50-5, pp. 2-3).

         In his timely appeal from the denial of PCRA relief to the Superior Court of Pennsylvania, Schmieding raised the following issues:

1. Whether the PCRA [c]ourt erred in ruling that the [guilty plea] was knowingly, voluntar[ily], and intelligently made where there was evidence that neither his attorney nor the [c]ourt understood the plea/sentencing?
2. Whether the PCRA [c]ourt erred in finding [Appellant's trial] attorney effective where said attorney failed to call defense witnesses for [Appellant] at the time of sentencing?
3. Whether [Appellant's] attorney was ineffective for his failure to file an appeal?

(Id. at 3). The Superior Court affirmed the PCRA Court on February 2, 2016. (Doc. 50-5, p. 10). On September 29, 2016, the Supreme Court of Pennsylvania denied Schmieding's Petition for Allowance of Appeal. (Doc. 50-6).

         B. Federal Court Proceedings

         Schmieding initiated this action with the filing of a petition for writ of habeas corpus on May 5, 2011 in the United States District Court for the Western District of Pennsylvania. (Docs. 1, 7). On November 11, 2011, the matter was transferred to this Court. On January 31, 2012, the Court stayed the petition to allow Petitioner to fully exhaust his state court remedies. (Doc. 20). On January 4, 2017, Schmieding filed a motion seeking to lift the stay as he had exhausted his state court remedies. (Doc. 36). On May 2, 2017, the Court granted Petitioner's motion, lifted the stay, and afforded him the opportunity to file an amended petition. (Doc. 38). He filed an amended petition on June 23, 2017. (Doc. 39). He filed a second amended petition two months later. (Doc. 42). The Respondent filed a response on January 23, 2018 (Doc. 50) and on February 12, 2018, Petitioner filed a traverse. On April 10, 2018, the Court issued an order directing the parties to supplement their filings to address all seven grounds raised by Petitioner. Respondent filed a supplemental response on April 13, 2018. (Doc. 55); Petitioner filed a supplemental reply on May 4, 2018 (Doc. 56).

         II. ISSUES PRESENTED IN FEDERAL PETITION

1. The sentences were grossly disportinate [sic] to the crimes which violated the petitiners [sic] constitutional right agaist [sic] cruel and unusual punishment.
2. Petioner [sic] was denied his right to direct appeal on every sentencing by Counsel Abeln.
3. Ineffective Assistance of Counsel Abeln.
4. Ineffective Assistance of Counsel Rominger and Counsel Ghaner PCRA Attorneys. Ablen Trial Attorney.
5. Ineffective Assistance of Counsel Ghaner.
6. Breach of Plea Agreement.
7. Failure to consolidate or/and merge offenses for plea agreement/or then separated case after petitioner accepted plea.

(Doc. 42, pp. 10-11).

         III. DISCUSSION

         A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the “fact or duration” of his confinement.

         Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). Petitioner's case is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996 (“AEDPA”). 28 U.S.C. § 2254, provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. ...
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding....

28 U.S.C. § 2254. Section 2254 sets limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner. Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir. 2014). A federal court may consider a habeas petition filed by a state prisoner only “on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

         By limiting habeas relief to state conduct which violates “the Constitution or laws or treaties of the United States, ” § 2254 places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings resulted in a “fundamental defect which inherently results in a complete miscarriage of justice” or was completely inconsistent with rudimentary demands of fair procedure. See, e.g., Reed v. Farley, 512 U.S. 339, 354 (1994).

         A. Non-Cognizable Claims

         “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975) (per curiam).” Estelle v. McGuire, 502 U.S. 62, at 67-68 (1991). “[F]ederal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Pulley v. Harris, 465 U.S. 37, 41 (1984).

         In grounds four and five, Petitioner contends that PCRA counsel were ineffective in failing to communicate with each other and with trial counsel to obtain critical information.[2] (Doc. 42, pp. 10, 11). Freestanding claims of ineffective assistance of PCRA counsel are not cognizable on federal habeas review. 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”); see also Coleman v. Thompson, 501 U.S. 722, 752-53 (1991); Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987). Accordingly, these claims will be denied as non-cognizable.

         B. Exhaustion and Procedural Default

         Habeas relief “shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The state courts must have the first opportunity to redress any claimed violation of a habeas petitioner's federal rights. Picard v. Connor, 404 U.S. 270, 275-76 (1971). The habeas statute codifies this principle by requiring that a petitioner exhaust the remedies available in the courts of the State, 28 U.S.C. § 2254(b)(1)(A), meaning a state prisoner must “fairly present” his claims in “one complete round of the state's established appellate review process, ” before bringing them in federal court. O'Sullivan, 526 U.S. at 845 (stating “[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established review process.”); see also Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard, 404 U.S. at 275 (1971); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).

         Relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). Federal habeas courts “ ‘will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.' ” Lambrix v. Singletary, 520 U.S. 518, 522 (1997) (quoting Coleman, 501 U.S. at 729.

         The claims contained in grounds one, six and seven, and the ineffective assistance of counsel claim contained in ground 4, are unexhausted as Schmieding wholly failed to present them to the state courts. As noted supra, the state courts must have the first opportunity to redress any claimed violation of a habeas petitioner's federal rights. Picard, 404 U.S. at 275-76. A petitioner has exhausted a federal claim only if he or she presented the “substantial equivalent” of the claim to the state court. Picard, 404 U.S. at 278; see also McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (holding that petitioner must present both “factual and legal substance” of claim to state courts). The exhaustion requirement would “serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts.” Picard 404 U.S. at 276. The federal claims raised in the state courts need not be identical to the claims now pursued in federal court. Id. at 277 (recognizing that petitioner is entitled to “variations in the legal theory or factual allegations used to support a claim”). Review of the record confirms that Schmieding wholly failed to present the aforementioned claims to the state courts.

         “When a claim is not exhausted because it has not been ‘fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, as is the case here, the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.' 28 U.S.C. § 2254(b). In such cases, however, applicants are considered to have procedurally defaulted their claims and federal courts may not consider the merits of such claims unless the applicant establishes ‘cause and prejudice' or a ‘fundamental miscarriage of justice' to excuse his or her default. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).” McCandless, 172 F.3d at 260.

         To demonstrate “cause” for a procedural default, a petitioner must point to some objective external factor which impeded his efforts to comply with the state's procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). “Prejudice” will be satisfied only if he can demonstrate that the outcome of the state proceeding was “unreliable or fundamentally unfair” as a result of a violation of federal law. See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).

         Alternatively, if a petitioner demonstrates that a “constitutional violation has probably resulted in the conviction of one who is actually innocent, ” Murray, 477 U.S. at 496, then a federal court can excuse the procedural default and review the claim in order to prevent a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). The miscarriage of justice exception applies only in extraordinary cases, and actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998); Murray, 477 U.S. at 496. A petitioner establishes actual innocence by asserting “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial, ” showing that no reasonable juror would have voted to find the petitioner guilty beyond a reasonable doubt. Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).

         He fails to demonstrate “cause for the default and prejudice attributable thereto, ” or “that the failure to consider the federal claim will result in a fundamental miscarriage of justice.” Harris v. Reed, 489 U.S. 255, 262 (1989). See also, Werts, 228 F.3d at 192-93 (A petitioner can overcome procedural default, and thereby empower the habeas court to entertain the merits of the habeas claim, with a showing of “cause and prejudice” or by demonstrating a fundamental “miscarriage of justice.”); see also Schlup v. Delo, 513 U.S. 298, 321 (1995) (The miscarriage of justice exception is “explicitly tied...to the petitioner's innocence.”). This matter was stayed for a significant number of years while he pursued collateral relief in state court. During that time period, he twice amended his PCRA petition. However, he neglected to raise the claims contained in grounds one, six or seven. The claims at issue are presented here, in federal court, in the first instance. The failure to raise the issues in state court is wholly attributable to Schmieding and his failure to pursue them during collateral review and, therefore, cannot form the basis for cause and prejudice. Further, Schmieding does not contend that he is actually innocent. Consequently, there is no basis on which to excuse his procedural default of these claims.

         C. Claims Adjudicated on the Merits by the State Courts

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), federal courts reviewing a state prisoner's application for a writ of habeas corpus may not grant relief “with respect to any claim that was adjudicated on the merits in State court proceedings” unless the claim (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         “[B]ecause the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction, ” Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotations and citations omitted), “[t]his is a difficult to meet and highly deferential standard . . . which demands that state-court decisions be given the benefit of the doubt.” Cullen, 563 U.S. at 181(internal quotation marks and citation omitted). The burden is on Kittrell to prove entitlement to the writ. Id.

         A decision is “contrary to” federal law if “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A decision is an “unreasonable application” of federal law if the state court identified the correct governing legal rule but applied the rule to the facts of the case in an objectively unreasonable manner. Renico v. Lett, 559 U.S. 766, 773 (2010). A decision is based on an “unreasonable determination of the facts” if the state court's factual findings are objectively unreasonable in light of the evidence presented to the state court. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

         Finally, Section 2254(e) provides that “[i]n a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

         The claims adjudicated on the merits allege ineffective assistance of trial counsel. Specifically, in ground three, Schmieding contends that counsel was ineffective in failing to adequately advise him with regard to his plea bargain and the subsequent entry of his plea. (Doc. 42, pp. 10, 11). In his second ground for relief, Petitioner argues that counsel was ineffective in failing to file his direct appeal. (Doc. 42, p. 10). It also appears that he is contending that counsel was ineffective in failing to call character witnesses at sentencing. (Doc. 56, pp. 15-19).

         1. Clearly Established Federal Law

         In setting forth the standard for ineffective assistance of counsel, the Superior Court stated as follows:

         It is well settled that

[t]o plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit;(2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act.
Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012), appeal denied, 64 A.3d 631(Pa. 2013) (citation omitted). “Generally where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests.” Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010) (citation omitted). A failure to satisfy any prong of the test will require rejection of the claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

(Doc. 50-5, p. 4).

         The clearly established Federal law governing ineffective assistance of counsel claims, as determined by the Supreme Court of the United States is as follows:

Ineffective assistance of counsel claims are “governed by the familiar two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Shelton v. Carroll, 464 F.3d 423, 438 (3d Cir. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). For AEDPA purposes, the Strickland test qualifies as “clearly established Federal law, as determined by the Supreme Court.” Williams, 529 U.S. at 391, 120 S.Ct. 1495. Under Strickland, a habeas petitioner must demonstrate that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's error, the result would have been different. 466 U.S. at 687, 104 S.Ct. 2052. For the deficient performance prong, “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. This review is deferential:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance....

Id. at 689, 104 S.Ct. 2052

Not every “error by counsel, even if professionally unreasonable, ... warrant[s] setting aside the judgment of a criminal proceeding.” Id. at 691, 104 S.Ct. 2052. “Even if a defendant shows that particular errors of counsel were unreasonable, ... the defendant must show that they actually had an adverse effect on the defense”; in other words, the habeas petitioner must show that he was prejudiced by counsel's deficient performance. Id. at 693, 104 S.Ct. 2052. To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.
In assessing an ineffective assistance of counsel claim, “the ultimate focus of inquiry must be on the fundamental fairness of the proceeding.... In every case the court should be concerned with whether ... the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Id. at 696, 104 S.Ct. 2052.

Rainey v. Varner, 603 F.3d 189, 197-98 (3d Cir. 2010). The Third Circuit has held that the Pennsylvania ineffectiveness test is not contrary to the Supreme Court's Strickland standard. See Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Thus, the state court's application of the Pennsylvania three-pronged test was not “contrary to clearly established federal law.”

         When the state court has decided the claim on the merits, as is the case here, “[t]he question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable—a substantially higher threshold.' ” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Id.

         2. Application of Federal Law and Determination of Facts in Light of Evidence Presented in the State court proceedings.

         a. Guilty Plea

         On September 8, 2006, Schmieding pled guilty to various sexual offenses against minors and numerous child pornography charges; he was subsequently sentenced to an aggregate term of incarceration of 89 ½ to 215 months. He argues that he “was told about the deals 5 max he would be serving in county[;] 20 years if he didn't take the pleas. Petitioner accepted the pleas[, ] signed everything[, ] did everything they wanted. Yet what his advice and promise told petitioner were far apart. Petitioner ended up with what he was threatened with as a max in each county or very close to it.” (Doc. 56, p. 17). He essentially argues that the ineffective assistance of counsel caused him to enter an involuntary or unknowing guilty plea.[3] (Doc. 42, pp. 10, 11; Doc. 56, pp. 17-19).

         On March 17, 2006, Schmieding appeared in the Court of Common Pleas of Huntingdon County for the purpose of entering guilty pleas to the matters at Huntingdon County docket number CP-31-0000465-2005, and Franklin County docket number CP-31-0000074-2006.

The transcript of that guilty plea hearing colloquy follows:
MR. STEWART: Cases Numbers 465-2005 and 74 of 2006, Karl Schmeiding [sic]. Your Honor, these cases are on for guilty plea.
THE COURT: Where are the Informations?
MR. STEWART: I suspect they're still in the file.
THE COURT: Would you endorse the informations to what the young man is pleading to? [Schmieding signed the informations and indicated that he was “guilty as charged.” (Doc. 50-7, pp. 10, 11, 16-18).] What is the criminal offense here?
MR. STEWART: In 465 charges involve sexual abuse of children, unlawful contact with a minor, the unlawful use of a computer and indecent assault. In 74 it's also sexual abuse of children, unlawful use of computer and multiple counts of the possession of child pornography on a computer.
THE COURT: What is the code violation there?
MR. STEWART: For 465 -
THE COURT: What's the Title 18?
MR. STEWART: It's 6312(d). Those are all - they are all third degree felonies.
THE COURT: The charges, young man, in 74 appear to contain 13 counts of por— of child pornography, which is a felony of the third degree. Is that accurate?
MR. STEWART: That's accurate.
THE COURT: First I will tell you, Karl, that a felony of the third degree is punishable by a jail sentence of up to seven years and a fine of up to $15000. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Now it is not at all clear to me whether these charges would be a single charge for purposes of sentencing or not. Mr. Stewart
what's your view on that?
MR. STEWART: My view is that in the first case the charges involve the use of this Defendant photographing himself having indecent contact ...

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