State v. Thompson ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
KYLE MATTHEW THOMPSON, Petitioner.
No. 1 CA-CR 15-0622 PRPC
FILED 3-30-17
Petition for Review from the Superior Court in Mohave County
No. CR-2011-601
The Honorable Derek C. Carlisle, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Respondent
Kyle Matthew Thompson, Florence
Petitioner
STATE v. THOMPSON
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.
N O R R I S, Judge:
¶1 Kyle Matthew Thompson petitions this court for review from
the dismissal of his petition for post-conviction relief. We grant review but
deny relief.1
¶2 In 2013, Thompson pled guilty pursuant to N. Carolina v.
Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)2 to one count of
attempted sexual exploitation of a minor. At the change of plea hearing, the
prosecutor stated Thompson had possessed an electronic image of “a girl,
a minor under 15 years of age, engaging in masturbatory conduct.” Given
his plea, counsel for Thompson neither agreed nor objected to the factual
basis established by the prosecutor. Instead, counsel informed the court as
to the appropriate nature of the Alford plea and why it was in the best
interest of justice. The superior court accepted the plea and sentenced
Thompson to five years’ probation.
¶3 The terms of Thompson’s probation prohibited him from
accessing the internet without prior written permission from his probation
officer. Roughly two months after his probation began, Thompson’s
1Although Thompson’s petition for post-conviction relief was
untimely under Ariz. R. Crim. P. 32.4(a) (notice must be filed within 90 days
after entry of judgment and sentence), he was still entitled to raise a claim
under Ariz. R. Crim. P. 32.1(h) (petition for post-conviction relief based on
actual innocence).
2“Alford stands for the proposition that a trial court may,
without violating the Constitution, accept a plea of guilty from a defendant
who maintains that he did not commit a crime.” Duran v. Superior Court In
& for Maricopa Cty., 162 Ariz. 206, 207, 782 P.2d 324, 325 (App. 1989). In
deciding whether to enter an Alford plea, a defendant must “assess the
weight of the evidence and measure the probability of a guilty verdict and
a longer sentence against a definite and lesser sentence to be imposed in
accordance with the plea agreement.” Id. at 208, 782 P.2d at 326.
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STATE v. THOMPSON
Decision of the Court
probation officer petitioned to revoke his probation, alleging Thompson
had violated his probation by accessing “the internet via Facebook on at
least seven (7) occasions soliciting friends, including a 13 year [old] female.”
The superior court held a contested violation hearing on the petition and
found Thompson had violated his probation. The court revoked
Thompson’s probation and sentenced him to five years’ imprisonment.
¶4 Thompson petitioned the superior court for post-conviction
relief. The superior court denied the petition without setting an evidentiary
hearing.
¶5 In his petition for review, Thompson argues, first, the
superior court should not have summarily dismissed his petition for post-
conviction relief under Arizona Rule of Criminal Procedure 32.1(h) because
the State failed to identify any “actual” minor under Arizona Revised
Statutes (“A.R.S.”) section 13-3553(A)(2) (2010) (defining crime of sexual
exploitation of a child as possessing “any visual depiction in which a minor
is engaged in exploitative exhibition or other sexual conduct”). In support
of this argument, Thompson argues State v. Hazlett, 205 Ariz. 523, 527, ¶ 11,
73 P.3d 1258, 1262 (App. 2003) (violation of A.R.S. § 13-3553 requires actual
living human being), State v. Tschilar, 200 Ariz. 427, 435, ¶ 34, 27 P.3d 331,
339 (App. 2001) (because kidnapping and aggravated assault statutes
prohibit conduct committed against “another person,” convictions under
both statutes require a victim), and State v. Olquin, 216 Ariz 250, 254, ¶ 21,
165 P.3d 228, 232 (App. 2007) (statutes proscribing offenses against “another
person” require the identity of the victim) establish, when viewed together,
that the State must prove the actual identity of the minor to sustain a
conviction under A.R.S. § 13-3553. Reviewing the superior court’s ruling for
an abuse of discretion, we reject this argument. See State v. Swoopes, 216
Ariz. 390, 393, ¶ 4, 166 P.3d 945, 948 (App. 2007) (appellate court reviews
ruling on post-conviction petition for abuse of discretion) (citations
omitted).
¶6 A defendant claiming actual innocence in a post-conviction
petition must show “by clear and convincing evidence that . . . no
reasonable fact-finder would have found [the] defendant guilty of the
underlying offense beyond a reasonable doubt . . . .” Ariz. R. Crim. P.
32.1(h). None of the authority Thompson cites required the State to prove
the “actual identity” (i.e., the name and age) of the minor victim. And, this
court “will not read into a statute something that is not within the manifest
intent of the legislature as indicated by the statute itself . . . .” Cicoria v. Cole,
222 Ariz. 428, 431, ¶ 15, 215 P.3d 402, 405 (App. 2009) (citation omitted).
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STATE v. THOMPSON
Decision of the Court
Therefore, the superior court properly dismissed Thompson’s petition for
post-conviction relief based on his claim of actual innocence.
¶7 Thompson also argues the State failed to establish an
adequate factual basis for his plea. Reviewing the superior court’s ruling
for an abuse of discretion, we disagree. See Swoopes, 216 Ariz. at 393, ¶ 4,
166 P.3d at 948; State v. Ovante, 231 Ariz. 180, 184, ¶ 12, 291 P.3d 974, 978
(2013) (appellate court reviews superior court’s acceptance of guilty plea for
abuse of discretion).
¶8 Under Ariz. R. Crim. P. 17.1(c), the superior court may accept
a plea of no contest after “due consideration of the views of the parties and
the interest of the public in the effective administration of justice.” Similar
to a guilty plea, a plea of no contest is an admission of guilt. State v.
Anderson, 147 Ariz. 346, 350, 710 P.2d 456, 460 (1985) (citing Hudson v. United
States, 272 U.S. 451, 455, 47 S. Ct. 127, 129, 71 L. Ed. 347 (1926)). Here,
Thompson did not and does not contest the prosecutor’s description of the
image he possessed. Instead, he argues he did not have any personal
knowledge of the actual identity (the name and age) of the victim. As
discussed, see supra ¶ 6, the State was not required to establish the victim’s
name and age. The superior court can accept a plea based on “strong
evidence of guilt” of every element of the offense contained in the record.
Ovante, 231 Ariz. at 184, ¶ 12, 291 P.3d at 978. The prosecutor’s description
of the image Thompson possessed, which he did not and does not
challenge, was sufficient to support a conviction under A.R.S. § 13-3553.
¶9 For the foregoing reasons, although we grant review, we deny
relief.
AMY M. WOOD • Clerk of the Court
FILED: JT
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