Opinion
No. 1 CA-CR 18-0815 PRPC
03-26-2019
STATE OF ARIZONA, Respondent, v. JAMAL SHAREEF BRADLEY, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane M. Meloche Counsel for Respondent Jamal Shareef Bradley, Florence Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Review from the Superior Court in Maricopa County
No. CR2007-142931-001
The Honorable Maria Del Mar Verdin, Judge (retired)
The Honorable George H. Foster, Jr., Judge
The Honorable David O. Cunanan, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Diane M. Meloche
Counsel for Respondent Jamal Shareef Bradley, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in which Judge Randall M. Howe and Judge Jennifer B. Campbell joined. McMURDIE, Judge:
¶1 Petitioner Jamal Shareef Bradley petitions this court for review from the denial of his third petition for post-conviction relief. For reasons that follow, we grant review but deny relief.
This is the fourth time this court has reviewed Bradley's case. In State v. Bradley, 1 CA-CR 09-0821, 2011 WL 315662 (Ariz. App. Jan. 25, 2011) (mem. decision), this court affirmed the convictions and sentences on direct appeal. In State v. Bradley, 1 CA-CR 12-0723 PRPC (Ariz. App. Jan. 14, 2013), this court dismissed Bradley's petition for review from the denial of his first petition for post-conviction relief. In State v. Bradley, 1 CA-CR 17-0185 PRPC, 2017 WL 5709609 (Ariz. App. Nov. 28, 2017) (mem. decision), this court granted review of the denial of Bradley's second petition for post-conviction relief, but again denied relief. --------
FACTS AND PROCEDURAL BACKGROUND
¶2 A jury found Bradley guilty of three counts of child abuse, two counts of sexual conduct with a minor, six counts of kidnapping, one count of sexual abuse, one count of attempted molestation of a child, and three counts of molestation of a child. The superior court sentenced him to consecutive sentences on all counts including consecutive life sentences on the sexual conduct counts. In his petition for post-conviction relief, Bradley argued that a recent statutory amendment should apply to his case and is not precluded. See Ariz. R. Crim. P. 32.1(g), 32.2(b). The superior court summarily denied the petition. Bradley petitioned for review, arguing that the superior court abused its discretion by refusing to apply the amendment. Finding no error, we grant review but deny relief.
DISCUSSION
¶3 Absent an abuse of discretion or error of law, this court will not disturb a superior court's ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). It is Bradley's burden to show that the superior court abused its discretion by denying the petition for post-conviction relief. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011) (petitioner has the burden of establishing an abuse of discretion on review).
¶4 The statutory amendment changed the definition of sexual contact and eliminated the lack of sexual motivation defense to the crimes of sexual abuse and molestation. 2018 Ariz. Sess. Laws, ch. 266, §§ 1, 2 (2d Reg. Sess.). Bradley argues this is a significant change in the law that should apply to his case. See Ariz. R. Crim. P. 32.1(g).
¶5 Statutory amendments are not retroactive unless expressly provided, Ariz. Rev. Stat. ("A.R.S.") § 1-244, and the only exception to this rule is if the amendment is a procedural, as opposed to a substantive change, in the law, State v. Fell, 210 Ariz. 554, 560, ¶¶ 21-22 (2005). Here, the amendment in question does not expressly state that it is to be applied retroactively. 2018 Ariz. Sess. Laws, ch. 266, §§ 1, 2 (2d Reg. Sess.). Bradley recognizes that the revision to chapter 14 (sexual offenses) is not procedural, but rather is a substantive change in the law. Therefore, Bradley, whose offense was committed before the effective date of the amended statute, is not entitled to application of the new statute.
¶6 Moreover, substantively the amendment does not offer Bradley relief. The amendment eliminated as a defense to sexual abuse (A.R.S. § 13-1404) and molestation (A.R.S. § 13-1410) that a defendant was not "motivated by a sexual interest." Compare A.R.S. § 13-1407(E) (2005) with A.R.S. § 13-1407 (2018). The legislature also added to the definition of "Sexual contact" the following:
[Sexual contact does] not include direct or indirect touching or manipulating during caretaking responsibilities, or interactions with a minor . . . that an objective, reasonable person would recognize as normal and reasonable under the circumstances.A.R.S. § 13-1401(A)(3)(b). The amendment substantively changes how juries are to be instructed in future criminal prosecutions on sexual abuse and molestation when the issue is whether a defendant touched, fondled, or manipulated the child's genitals, anus, or female breast for sexual gratification or for caretaking responsibilities. However, in this case, Bradley did not receive a lack of sexual motivation instruction, and the issue of whether the alleged touching was for anything other than his prurient interest was not before the jury. Simply stated, the problem addressed by the amendment would not have changed the outcome of Bradley's sexual abuse and molestation convictions.
¶7 Regarding Bradley's convictions for child abuse, sexual conduct with a minor, and kidnapping, the amendment has no applicability because the term "sexual contact" and the former defense did not apply to those crimes. The superior court did not abuse its discretion by summarily denying the petition for post-conviction relief.
CONCLUSION
¶8 We grant review but deny relief.