Opinion
2 CA-CR 2023-0102-PR
06-01-2023
The State of Arizona, Respondent, v. Craig Charles Rose, Petitioner.
Rachel Mitchell, Maricopa County Attorney By Robert A. Walsh, Deputy County Attorney, Phoenix Counsel for Respondent Grand Canyon Law Group LLC, Mesa By Angela Poliquin Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2002012446 The Honorable John R. Doody, Judge Pro Tempore REVIEW GRANTED; RELIEF DENIED
Rachel Mitchell, Maricopa County Attorney
By Robert A. Walsh, Deputy County Attorney, Phoenix
Counsel for Respondent
Grand Canyon Law Group LLC, Mesa
By Angela Poliquin
Counsel for Petitioner
Vice Chief Judge Staring authored the decision of the Court, in which Judge O'Neil and Judge Kelly concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE:
¶1 Craig Rose seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 33, 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). Rose has not met his burden of establishing such abuse here.
¶2 In 2005, Rose pled guilty to two counts of attempted sexual exploitation of a minor. The trial court suspended the imposition of sentence and placed Rose on lifetime terms of probation for each count. In 2006, Rose filed a notice of post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but found no "colorable claims for relief." The court gave Rose leave to file a pro se petition but dismissed the proceeding after Rose failed to do so.
¶3 In December 2017, Rose admitted violating a term of his probation, and, the following month, the court revoked his probation as to one conviction, sentencing Rose to a ten-year prison term. It continued Rose on lifetime probation for the second conviction.
¶4 Rose sought post-conviction relief, arguing that his counsel during his revocation proceeding had been ineffective, that the prosecutor had committed misconduct during those proceedings, that the trial court had erred by revoking his probation, and that his ten-year prison term was unconstitutional. He additionally asserted that "new law suggest[ed]" the offense of attempted sexual exploitation of a minor is "unconstitutional." He noted that this court had recently determined in State v. Hood that a defendant did not have to know the victim's age to be guilty of sexual exploitation. 251 Ariz. 57, ¶¶ 9-10 (App. 2021). He reasoned, then, that because attempt crimes require "specific intent," his convictions of attempted sexual exploitation of a minor were unconstitutional because there had been "no mental state asserted or found in relation to the alleged age of the persons depicted in the photographs used to support his convictions." Although he initially framed this argument as a constitutional claim, he recharacterized the argument in his reply as falling under Rule 33.1(c) and (h) after the state had argued in response that the claim was precluded. The court summarily dismissed Rose's petition. This petition for review followed.
¶5 On review, Rose repeats the bulk of the arguments he made below. However, Rose has completed his prison term and has been discharged from custody on that count. We agree with the state that his discharge renders moot his arguments related to the revocation of his probation and the sentence imposed. Sedona Private Prop. Owners Ass'n v. City of Sedona, 192 Ariz. 126, ¶ 5 (App. 1998) ("A case becomes moot when an event occurs which would cause the outcome of the appeal to have no practical effect on the parties."). We therefore further address only Rose's argument that his underlying convictions for attempted sexual exploitation of a minor are not "cognizable under Arizona law."
He does not reassert his claim that his ten-year prison term was unconstitutional.
This case is distinguishable from State v. Brandt, in which this court determined a defendant's completion of his sentence did not render moot his appeal from the revocation of his probation. 19 Ariz.App. 172, 172-73 (1973). We reasoned that revocation could affect a future effort to have his conviction set aside. Id. at 173. But Rose's convictions cannot be set aside because they require him to register as a sex offender. See A.R.S. §§ 13-905(N)(2), 13-3821(A)(13).
¶6 The state asserts that Rose waived this claim because he did not characterize it as falling under Rule 33.1(c) or (h) until his reply to the state's response. The state is correct that a trial court need not address arguments first raised in reply, including when a defendant has recharacterized a claim as falling under a different basis for post-conviction relief. State v. Royalty, 236 Ariz. 125, n.9 (App. 2014) (declining to address claim of newly discovered evidence when first raised as claim of ineffective assistance). And there is no indication the trial court considered Rose's belated argument here.
¶7 Rose argues, however, that because his "claim is that such a crime does not exist," it is not subject to waiver, citing State v. Reed, 252 Ariz. 236 (App. 2021). That case does not support his position. There, we rejected a defendant's constitutional challenge that his sentence was illegal, raised in a successive petition years after his guilty plea to that offense, but "acknowledge[d] that he sought to raise an illegal sentence claim under Rule 33.1(c) in his petition." Id. n.3 &¶¶ 3-4. The state conceded that the defendant s conviction of attempted reckless child abuse was not a cognizable offense. Id. ¶¶ 7-8. We observed that claims under Rule 33.1(b) through (h) had to be raised within a reasonable time of discovery. Id. ¶ 10; see Ariz. R. Crim. P. 33.4(b)(3)(B). We determined that a claim under Rule 33.1(c) or (h) "is not time-barred if there is no evidence presented beyond the mere passage of time to suggest unreasonable delay." Reed, 252 Ariz. 236, ¶ 15.
¶8 But that is not the issue presented in this case. The question here is whether Rose properly presented his claim to the trial court. By raising it for the first time in his reply brief, he did not. See Royalty, 236 Ariz. 125, n.9. The court was not required to address his claim under Rule 33.1(c) and (h), and neither are we. See id.
The argument Rose raises on review is different than the argument he raised in his petition for post-conviction relief. In his petition below, he argued his convictions were unconstitutional because "there was no mental state asserted or found in relation to the alleged age of the persons depicted in the photographs used to support his convictions"-that is, no evidence he knew the victims were "under 15 years of age." On review, he argues instead that there was no evidence that he believed the victims were children. And, although Rose has asserted there is no "cognizable" offense of attempted sexual exploitation of a minor, neither of his arguments supports that conclusion, even were they otherwise correct. Instead, his argument appears to be that the factual basis was insufficient. That argument is unsupported by the record in any event. Rose admitted at the change-of-plea hearing that he knew the images depicted "children under the age of fifteen having sex."
¶9 We grant review but deny relief.