Opinion
No. 2 CA-CR 2018-0047-PR
07-11-2018
THE STATE OF ARIZONA, Respondent, v. SCOTT CHARLES BAUER, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Appellate Bureau Chief, Florence Counsel for Respondent Scott Bauer, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pinal County
No. S1100CR201201201
The Honorable Steven J. Fuller, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Appellate Bureau Chief, Florence
Counsel for Respondent
Scott Bauer, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Brearcliffe and Judge Staring concurred.
VÁSQUEZ, Presiding Judge:
¶1 Scott Bauer seeks review of the trial court's ruling denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Bauer has not shown such abuse here.
¶2 After a jury trial, Bauer was convicted of nineteen counts of sexual exploitation of a minor, dangerous crimes against children, and sentenced to consecutive prison terms totaling 323 years. We affirmed his convictions and sentences on appeal. State v. Bauer, No. 2 CA-CR 2015-0018 (Ariz. App. Apr. 28, 2016) (mem. decision). In doing so, we determined he was not prejudiced by any error in instructing the jury pursuant to A.R.S. § 13-3556 because "no reasonable, properly instructed jury would have failed to determine the images on Bauer's computer depicted actual minors." Id. ¶¶ 4-6. And we rejected his argument that the state was required to allege and prove the identity of his victims. See id. ¶ 2; State v. Bauer, No. 2 CA-CR 2015-0018 (Ariz. App. May 18, 2016) (order).
¶3 Bauer sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but found no claims to raise in a Rule 32 proceeding. Bauer then filed a pro se petition, essentially repeating the arguments he had made on appeal and asserting his trial counsel had been ineffective for failing to raise them. The trial court summarily denied relief, as well as Bauer's motion for reconsideration; this petition for review followed.
¶4 On review, Bauer again argues the state was required to allege and prove the identity of the victims and counsel was ineffective in failing to raise that argument. "To state a colorable claim of ineffective assistance of counsel," Bauer "must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006); accord State v. Kolmann, 239 Ariz.
157, ¶ 9 (2016); see also Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984).
¶5 Bauer is correct that we did not expressly address his underlying argument in our memorandum decision on appeal. See Bauer, No. 2 CA-CR 2015-0018, ¶¶ 2, 4-7 (mem. decision). In our denial of his motion for reconsideration, however, we stated that "Bauer is incorrect in his assertion that the state was required to prove the identity of the child because neither statutory law or case law require it." Bauer, No. 2 CA-CR 2015-0018 (order). On review, Bauer attempts to draw a distinction between a claim that the state was required to prove the identities of the victims at trial and a claim the state was required to allege those identities in the indictment. No relevant legal distinction exists. The core of his argument is that the victim's identity is an element of the offense. We have rejected that argument. Thus, he cannot demonstrate that counsel fell below prevailing professional norms by failing to raise it, nor that he was prejudiced thereby.
¶6 We grant review but deny relief.