State v. Warner ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
THOMAS HOWARD WARNER, Petitioner.
No. 1 CA-CR 15-0616 PRPC
FILED 10-19-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2012-108952-001
The Honorable Roland J. Steinle, III, Judge Retired
REVIEW GRANTED AND RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent
Thomas Howard Warner, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Maria Elena Cruz joined.
STATE v. WARNER
Decision of the Court
H O W E, Judge:
¶1 Thomas Howard Warner petitions this Court for review from
the summary dismissal of his petition for post-conviction relief of-right.
Warner pled guilty to sexual exploitation of a minor and two counts of
attempted sexual exploitation of a minor, all dangerous crimes against
children. The charges were based on Warner’s admitted possession of
images of children under the age of 15 engaged in sexual conduct. The trial
court sentenced Warner to ten years’ imprisonment for sexual exploitation
and placed him on lifetime probation for both counts of attempted sexual
exploitation. Warner timely petitioned for post-conviction relief. The trial
court summarily dismissed the petition pursuant to Arizona Rule of
Criminal Procedure 32.6(c).
¶2 Warner argues on review that the trial court erred by
summarily dismissing his petition without an evidentiary hearing. Warner
argues that he demonstrated a colorable claim that entitled him to relief. “A
decision as to whether a petition for post-conviction relief presents a
colorable claim is, to some extent, a discretionary decision for the trial
court.” State v. D’Ambrosio, 156 Ariz. 71, 73 (1988). An appellate court will
reverse a trial court’s summary dismissal only if an abuse of discretion
affirmatively appears. State v. Watton, 164 Ariz. 323, 325 (1990).
¶3 Warner argues on review that prosecutors engaged in
misconduct during the grand jury proceedings. We deny relief on this issue
because Warner waived it when he pled guilty. A plea agreement waives
all non-jurisdictional defenses, errors, and defects which occurred before
the plea. State v. Moreno, 134 Ariz. 199, 200 (App. 1982). The waiver of non-
jurisdictional defects includes deprivations of constitutional rights. Tollett
v. Henderson, 411 U.S. 258, 267 (1973).
¶4 Warner also argues that the offenses are not dangerous crimes
against children because there were no actual victims. As charged and
convicted in this case, a person commits sexual exploitation of a minor if
the person knowingly distributes, transports, exhibits, receives, sells,
purchases, electronically transmits, possesses or exchanges “any visual
depiction in which a minor is engaged in exploitive exhibition or other
sexual conduct.” A.R.S. § 13–3553(A)(2). Sexual exploitation of a minor
under the age of 15 is punishable as a dangerous crime against children
pursuant to A.R.S. § 13–705. A.R.S. § 13–3553(C). Attempted sexual
exploitation of a minor under the age of 15 is also punishable as a dangerous
crime against children. A.R.S. § 13–705(D), (J), and (O). As noted above,
Warner admitted he possessed images of children under the age of 15
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STATE v. WARNER
Decision of the Court
engaged in sexual conduct. Therefore, the offenses to which he pled guilty
were dangerous crimes against children as defined by Arizona law.
¶5 Warner next argues that he has a variety of mental health
issues that would have been “defenses” to the charges, some of which
defense counsel failed to investigate during the pretrial phase and some of
which are newly discovered evidence. We deny relief on this issue because
Warner failed to present any evidence that he suffers from any mental
health issue, let alone any issue that would constitute a legal defense to the
charges or have any effect on his sentences.1 We also deny relief because
Warner attempts to present and argue this issue by simply referring this
Court to the petition he filed below. A petition for review may not
incorporate by reference any issue or argument. The petition must set forth
specific claims, present sufficient argument supported by legal authority,
and include citation to the record. Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition
must state “[t]he issues which were decided by the trial court and which
the defendant wishes to present to the appellate court for review”); Ariz. R.
Crim. P. 32.9(c)(1)(iv) (petition must contain “[t]he reasons why the petition
should be granted” and either an appendix or “specific references to the
record,” but “shall not incorporate any document by reference, except the
appendices”); State v. Rodriguez, 227 Ariz. 58, 61 n.4 ¶ 12 (App. 2010)
(declining to address argument not presented in petition).
¶6 Finally, Warner claims that defense counsel coerced Warner
into accepting the plea offer; the State, trial court, and defense counsel
collaborated and conspired against Warner; and the trial court was biased
against Warner. We deny relief on these issues because Warner did not raise
them in the petition for post-conviction relief he filed below. A petition for
review may not present issues not first presented to the trial court. Ariz. R.
Crim. P. 32.9(c)(1)(ii); State v. Bortz, 169 Ariz. 575, 577 (App. 1991); See also
State v. Swoopes, 216 Ariz. 390, 403 ¶ 41 (App. 2007) (holding that there is no
review for fundamental error in a post-conviction relief proceeding).2
1 The ten-year prison sentence was the minimum sentence available
for sexual exploitation of a minor. A.R.S. § 13–705(D).
2 Warner raised new issues in the two replies he filed below, but the
trial court limited its decision to the issues in Warner’s petition for post-
conviction relief and the State’s response.
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STATE v. WARNER
Decision of the Court
¶7 Accordingly, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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