Opinion
2 CA-CR 2022-0154-PR
12-13-2022
The State of Arizona, Respondent, v. Robert Charles Thompson, Petitioner.
Sheila Polk, Yavapai County Attorney By George D. Rodriquez, Deputy County Attorney, Prescott Counsel for Respondent Robert Thompson, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Yavapai County Nos. V1300CR201880171 and V1300 CR201980004 The Honorable Michael R. Bluff, Judge
Sheila Polk, Yavapai County Attorney By George D. Rodriquez, Deputy County Attorney, Prescott Counsel for Respondent
Robert Thompson, Florence In Propria Persona 1
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eckerstrom and Judge Cattani concurred.
MEMORANDUM DECISION
VÁSQUEZ, CHIEF JUDGE
¶1 Robert Thompson seeks review of the trial court's ruling 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). Thompson has not met his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement, Thompson was convicted of three counts each of sexual exploitation of a minor and attempted sexual exploitation of a minor in CR201880171 and one count of failure to appear in CR201980004. The trial court sentenced Thompson to a combination of concurrent and consecutive prison terms totaling thirty-five years.
As relevant here, a person commits sexual exploitation of a minor by knowingly "[d]istributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct." A.R.S. § 13-3553(A)(2).
¶3 Thereafter, Thompson sought post-conviction relief, and appointed counsel filed a notice that he was unable to find any colorable claim to raise in a Rule 33 petition. The trial court granted Thompson an extension of time in which to file a pro se petition. In that petition, Thompson argued trial counsel had rendered ineffective assistance by failing to conduct a pretrial investigation, to interview witnesses, "to effectively assist [Thompson], to be loyal to him, and to avoid conflicts of interest." In addition, he maintained trial counsel was deficient in negotiating the terms of the plea agreement. He further asserted that his due process and equal protection rights had been violated because the trial court did not allow him to withdraw from the plea agreement. In support of that argument, Thompson maintained that his convictions were not supported by sufficient evidence because there was "[n]o proof" that the visual depictions for which he was convicted were for "sexual stimulation" or were of "actual minors" who were "Arizona-state residents." Finally, he 2 challenged the constitutionality of A.R.S. § 13-3553, suggesting that his multiple convictions and sentences for sexual exploitation of a minor amounted to cruel and unusual punishment.
¶4 The trial court summarily dismissed Thompson's petition. The court rejected each of his claims of ineffective assistance of counsel, explaining, in part, that Thompson had failed to allege "specific facts" supporting his claims and instead relied on "broad conclusionary statements." The court next determined that Thompson's plea was "supported by a sufficient factual basis for each count." In part, the court noted that "establishing [Thompson had] possessed the images for the purpose of sexual stimulation [was] not required" and that "Arizona law does not require the persons in the visual depictions be Arizona residents." Finally, the court determined that Thompson's argument as to cruel and unusual punishment must fail in light of State v. McPherson, 228 Ariz. 557 (App. 2012). This petition for review followed.
¶5 On review, Thompson first repeats his claims of ineffective assistance, asserting that trial counsel "refused" to file any pretrial motions, "would not interview state witnesses," and "cajoled [Thompson's] signing of [the] plea agreement." Thompson suggests the trial court failed to properly apply the standard from Strickland v. Washington, 466 U.S. 668, 687 (1984), when evaluating his claims.
¶6 "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland, 466 U.S. at 687). Whether conduct is objectively reasonable is measured by the "'practice and expectations of the legal community' at the time the lawyer provides representation." State v. Miller, 251 Ariz. 99, ¶ 10 (2021) (quoting Hinton v. Alabama, 571 U.S. 263, 272-73 (2014)). A defendant establishes prejudice by showing a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Bennett, 213 Ariz. 562, ¶ 25 (quoting Strickland, 466 U.S. at 694). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id. ¶ 21.
¶7 Here, the trial court properly applied Strickland. We agree with the court's initial assessment that Thompson failed to adequately support his claims of ineffective assistance, instead relying on broad generalizations. See State v. Donald, 198 Ariz. 406, ¶ 17 (App. 2000) (to avoid summary dismissal, defendant must present more than conclusory assertions, including "specific factual allegations that, if true, would entitle 3 him to relief"). Nevertheless, the court addressed each of Thompson's claims, concluding Thompson had failed to show that "his trial counsel's performance fell below objectively reasonable standards." The court additionally determined that Thompson had failed to establish prejudice.
¶8 Thompson nevertheless relies on State v. Watson, 134 Ariz. 1 (1982), and United States v. Tucker, 716 F.2d 576 (9th Cir. 1983), to support his claim that trial counsel was deficient in failing to file pretrial motions and interview witnesses. But "[b]y entering a guilty plea, a defendant waives all non-jurisdictional defects and defenses, including claims of ineffective assistance of counsel, except those that relate to the validity of a plea." State v. Banda, 232 Ariz. 582, ¶ 12 (App. 2013). Thompson's claims are therefore waived.
¶9 Thompson next appears to reassert his claim that the trial court erred by not allowing him to withdraw from the plea agreement because it lacked a sufficient factual basis. He again maintains that a conviction for attempted sexual exploitation of a minor must involve "depiction of actual, only verified, Arizona minors." We disagree.
¶10 Thompson's reliance on State v. Williams, 175 Ariz. 98 (1993), is unavailing. While that case mentions the legislature's intent of punishing "predators who pose a direct and continuing threat to the children of Arizona," id. at 102, § 13-3553(A)(2) does not limit the offense of sexual exploitation of a minor to Arizona victims, see State v. Dixon, 231 Ariz. 319, ¶ 9 (App. 2013) (statute's plain language controls). Notably, "when the legislature enacted the predecessor to § 13-3553, it recognized its interest was not limited to protecting the minor victims depicted, but extended to combating 'the climate encouraging the sexual exploitation of other children.'" Id. (quoting 1978 Ariz. Sess. Laws, ch. 200, § 2). In addition, the legislature recognized that such depictions are "very harmful to . . . society as a whole." Id. (quoting 1978 Ariz. Sess. Laws, ch. 200, § 2).
¶11 Last, Thompson challenges his combined thirty-four-year prison sentence for the three counts each of sexual exploitation of a minor and attempted sexual exploitation of a minor. Pointing to A.R.S. § 21-102(A), Thompson argues that because his sentence is more than thirty years, the trial court was required to "reject[]" the plea agreement and give him either "a lesser sentence" or a "12-member jury trial." But Thompson 4 did not make this argument below, and we therefore do not address it. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not address claims not raised below); Ariz. R. Crim. P. 33.16(c)(2)(B) (petition for review must contain issues decided by trial court that defendant is presenting for review).
Section 21-102(A) provides: "A jury for trial of a criminal case in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons . . . ."
¶12 To the extent Thompson is re-urging his cruel and unusual punishment argument, the trial court properly rejected it. The Arizona Supreme Court has decided that the sentencing scheme provided by § 13-3553(A)(2) does not violate the Eighth Amendment's prohibition against cruel and unusual punishment. See State v. Berger, 212 Ariz. 473, ¶¶ 4-6, 51 (2006); see also McPherson, 228 Ariz. 557, ¶ 16. "We have no authority to overrule or disregard the decisions of our supreme court." State v. Brown, 233 Ariz. 153, ¶ 27 (App. 2013). The trial court therefore did not abuse its discretion in summarily dismissing Thompson's petition. See Roseberry, 237 Ariz. 507, ¶ 7.
We do not address Thompson's arguments raised in his Rule 33 petition but not reasserted on review. See Ariz. R. Crim. P. 33.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue.").
¶13 Accordingly, we grant review but deny relief. 5