Opinion
No. 2 CA-CR 2019-0001-PR
03-21-2019
THE STATE OF ARIZONA, Respondent, v. JON HARRY IRWIN, Petitioner.
COUNSEL Barton & Storts P.C., Tucson By Brick P. Storts III Counsel for Petitioner
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NOT FOR PUBLICATION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 Pima County
No. CR20102663001
The Honorable Christopher Browning, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barton & Storts P.C., Tucson
By Brick P. Storts III
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred. EPPICH, Presiding Judge:
¶1 Jon Irwin seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Irwin has not shown such abuse here.
¶2 After a jury trial, Irwin was convicted of six counts of sexual exploitation of a minor under the age of fifteen, based on his possession of child pornography, and was sentenced to consecutive prison terms totaling seventy-seven years. We affirmed his convictions and sentences on appeal. State v. Irwin, No. 2 CA-CR 2012-0019 (Ariz. App. Dec. 27, 2012) (mem. decision). He subsequently sought and was denied post-conviction relief, and this court denied relief on review. State v. Irwin, No. 2 CA-CR 2013-0536-PR (Ariz. App. Apr. 28, 2014) (mem. decision).
¶3 In September 2018, Irwin filed a petition for post-conviction relief arguing under Rule 32.1(g) that Wright v. Gates, 243 Ariz. 118 (2017), was a significant change in the law applicable to his case. He asserted the court in that case had determined that the enhanced sentences imposed for dangerous crimes against children (DCAC) were "not warranted when the specific harm done is either not known or non-existent." He further claimed the court had concluded "that when touching is not completed, the punishment must decrease." (Emphasis omitted.)
¶4 Irwin further argued his consecutive sentences were unconstitutional, claiming the fact that an individual who had committed similar offenses in Nevada had been placed on probation "shows a disparity between jurisdictions that amounts to a violation of equal protection." Also relying on that Nevada case, he argued that the "simultaneous possession of multiple images of child pornography constitutes one crime," and asserted his consecutive sentences constituted double punishment. Finally, he claimed his sentences were excessive under the Eighth Amendment. The trial court summarily dismissed the petition; this petition for review followed.
¶5 On review, Irwin first repeats his claim that Wright is a significant change in the law that renders improper his enhanced sentences. See Ariz. R. Crim. P. 32.1(g). A significant change in law "requires some transformative event, a clear break from the past." State v. Poblete, 227 Ariz. 537, ¶ 8 (App. 2011) (quoting State v. Shrum, 220 Ariz. 115, ¶ 15 (2009)). Section 13-705, A.R.S., provides for enhanced punishment for DCAC offenses; sexual exploitation of a minor under the age of fifteen is a DCAC offense. § 13-705(Q)(1)(g). In Wright, the defendant had "spoke[n] to a woman about allowing him to engage in sexual acts with her two young children." 243 Ariz. 118, ¶ 2. However, the woman was a postal inspector, and the children were fictitious. Id. The trial court imposed lifetime probation pursuant to the DCAC statute. Id. On review, our supreme court determined his offenses could not be designated as DCAC because, to qualify as a DCAC offense, the victim of the offense had to have been an "actual child." Id. ¶ 18.
¶6 On review, Irwin seems to recognize that the holding in Wright does not expressly apply to him because his victims were not fictitious. Instead, he seizes on language in Wright in which the court observed that the sanctions identified in § 13-705 are "graduated" from crimes "when the victims are youngest and most vulnerable and the touching is most invasive" to offenses "where the victim is older or the touching is not completed." 243 Ariz. 118, ¶ 15. Based on that language, he concludes that he should not be "sentenced the same as a person who has, in fact, improperly touched a child victim."
¶7 We cannot agree with Irwin's interpretation of the court's reasoning in Wright. The court noted the progressive punishment only to confirm that the legislature intended "less severe punishment when there is no actual child victim," and in no way suggested that touching was required for an offense to be designated as DCAC. Id. Nor is that reading supported by the statute's language. See § 13-705(Q)(1)(g); A.R.S. § 13-3553(A)(2), (C) (sexual exploitation of a minor includes "possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct" and is punishable under DCAC statute if minor is under fifteen). Wright does not apply to Irwin, and the trial court did not err in summarily rejecting this claim.
¶8 Irwin also repeats his argument that his consecutive sentences are unconstitutional as violating equal protection and the prohibitions against double punishment and cruel and unusual punishment. This claim cannot be raised in an untimely proceeding. See Ariz. R. Crim. P. 32.1(a), (c), 32.4(a)(2)(A). And Irwin has identified no applicable exemption to that requirement. Thus, this claim also warranted summary rejection.
To the extent Irwin could have properly asserted such a claim, the trial court was correct that the Nevada case he cited below and on review does not constitute a significant change in Arizona law. --------
¶9 We grant review but deny relief.