Opinion
2 CA-CR 2023-0221-PR
03-12-2024
The State of Arizona, Respondent, v. Aaron Michael Garner, Petitioner.
Aaron M. Garner, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Cochise County No. S0200CR201900163 The Honorable Joel A. Larson, Judge
Aaron M. Garner, Florence In Propria Persona
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE
¶1 Aaron Garner seeks review of the superior court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb this ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Garner has not met his burden of establishing such abuse here.
¶2 In October 2019, Garner pled no contest to luring a minor under the age of fifteen for sexual exploitation. His conviction was based on his interaction with a law enforcement officer posing as a minor under the age of fifteen during which he "offered to pay money for sex." The superior court suspended the imposition of sentence and placed Garner on a five-year term of probation. In March 2021, Garner admitted violating a term of probation. The court revoked probation and imposed a seven-year prison term.
¶3 Garner sought post-conviction relief. Counsel filed a notice stating she had reviewed the record but had found no "colorable claim to raise in this Post-Conviction Relief proceeding." Garner then filed a pro se petition arguing that the officer impersonating a minor had violated A.R.S. §§ 13-3002 and 13-2311 by sending him a "false or forged message." Thus, Garner reasoned, his conviction should be vacated because, had he been aware of those statutes, he "would have never pled no contest to this crime." Garner also asserted that he should not have been sentenced for a dangerous crime against children under A.R.S. § 13-705 because his conviction was based on conversations with a law enforcement officer posing as a minor, rather than an actual minor. The superior court summarily dismissed Garner's petition, concluding Garner's first claim had not been timely raised and his second was not only untimely, but "present[s] no material issue of fact or law that would entitle [Garner] to relief." This petition for review followed.
The superior court directed Garner's counsel to address this issue. Counsel submitted a memorandum concluding that, pursuant to amendments to § 13-705, "there was no longer a requirement that there be an actual child victim to be sentenced" under § 13-705.
¶4 On review, Garner abandons his claim that law enforcement violated the law by posing as a minor and argues only that the superior court erred in rejecting his claim that he could not be sentenced under § 13-705. A sentencing claim may be raised in an otherwise-untimely post-conviction proceeding if the defendant demonstrates the claim has been raised "within a reasonable time after discovering the basis for the claim," Ariz. R. Crim. P. 33.4(b)(3)(B), and "explain[s] the reasons . . . for not raising the claim in a timely manner," Ariz. R. Crim. P. 33.2(b)(1). See also Ariz. R. Crim. P. 33.1(c). Assuming without deciding that Garner has met this burden, he is nonetheless not entitled to relief.
¶5 Garner was convicted under A.R.S. § 13-3554, which states in subsection (C) that the offense of luring a minor for sexual exploitation is punishable as a dangerous crime against children under § 13-705 "if the minor is under fifteen years of age." Section 13-705(S) states "[i]t is not a defense to a dangerous crime against children that the minor is a person posing as a minor or is otherwise fictitious if the defendant knew or had reason to know the purported minor was under fifteen years of age." Garner argues that because § 13-3554(C) refers only to a "minor . . . under fifteen years of age," § 13-705 was not "trigger[ed]" in his case and subsection (S) is therefore "irrelevant."
¶6 We review issues of statutory interpretation de novo and "[w]hen the statute's plain language is clear, we will not resort to other methods of statutory interpretation, 'such as the context of the statute, its historical background, its effects and consequences, and the spirit and purpose of the law.'" State v. Hernandez, 246 Ariz. 407, ¶¶ 8, 12 (App. 2019) (quoting State v. Gray, 227 Ariz. 424, ¶ 5 (App. 2011)). "In construing a specific provision, we look to the statute as a whole and we may also consider statutes that are in pari materia-of the same subject or general purpose-for guidance and to give effect to all of the provisions involved." Stambaugh v. Killian, 242 Ariz. 508, ¶ 7 (2017).
¶7 Even if we agreed with Garner's interpretation in isolation, it fails when we consider the whole of §§ 13-705 and 13-3554 as we are required to do. The definition of a dangerous crime against children includes luring a minor for sexual exploitation "committed against a minor who is under fifteen years of age." § 13-705(T)(1)(t). And, as noted above, § 13-705(S) provides that the sentence enhancement applies even when the minor is fictitious. To read § 13-3554(C) as Garner suggests would create a conflict with § 13-705. We are instead required to "harmonize and to read consistently statutes on the same subject matter." State v. Keener, 206 Ariz. 29, ¶ 10 (App. 2003). Garner was properly sentenced under § 13-705, and the superior court did not err in summarily rejecting this claim.
¶8 We grant review but deny relief.