State v. Kim

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

SONG POK KIM, Petitioner.

No. 1 CA-CR 18-0829 PRPC
FILED 5-2-2019

Petition for Review from the Superior Court in Maricopa County
No. CR2016-001686-001 DT
The Honorable Justin Beresky, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent

Maricopa County Office of the Legal Advocate, Phoenix
By Consuelo M. Ohanesian
Counsel for Petitioner
 STATE v. KIM
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge Kenton D. Jones joined.

W I N T H R O P, Judge:

¶1 Song Pok Kim petitions this court for review from the
dismissal of his petition for post-conviction relief (“PCR”) of-right pursuant
to Arizona Rule of Criminal Procedure 32.1. We have considered the
petition for review and, for the reasons stated, grant review, but deny relief.

¶2 Kim was charged with five counts of the sale or transportation
of dangerous drugs and one count of possession of dangerous drugs for
sale. He was working as a convenience store clerk when an undercover
officer entered the store and asked him if he could purchase a product
called “Head Rush 50X,” which contained a statutorily prohibited
substance. Kim initially refused to sell the product because it was “making
people pass out.” After the officer reassured Kim he wanted to purchase
the product, Kim sold it to him. The officer returned to the store on several
occasions to purchase the same product from Kim. He was arrested and
subsequently pled guilty to four counts of the sale or transportation of
dangerous drugs. The other two charged counts were dismissed as part of
his plea deal.

¶3 In his PCR petition, Kim argued he did not knowingly and
voluntarily enter his guilty plea. He also claimed actual innocence, the
factual basis of the plea was insufficient, and his counsel was ineffective.
The court denied his claims for relief. In his petition for review, Kim
requests review of the denial of the claims involving the insufficiency of his
plea’s factual basis and his counsel’s ineffectiveness.

¶4 We will not disturb a superior court’s ruling on a petition for
post-conviction relief unless the court abused its discretion. State v.
Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). The petitioner has the burden to
show the court abused its discretion. See State v. Poblete, 227 Ariz. 537, 538,
¶ 1 (App. 2011).

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 STATE v. KIM
Decision of the Court

I. Sufficiency of Factual Basis

¶5 When Kim entered his guilty plea, his counsel stated the
following:

. . . Mr. Kim was a clerk at a convenience store. An undercover
police officer came in on each . . . date[] and purchased from
him an incense called Head Rush, which Mr. Kim did
knowingly sell. This particular incense contained a
[proscribed substance] as defined in the dangerous drug
statute, making this a sale of a dangerous drug.

In his petition for review, Kim argues the factual basis does not address his
knowledge regarding the contents of the product he sold—an element he
argues must be established under Arizona Revised Statutes section 13-
3407(A)(7). See generally State v. Norris, 221 Ariz. 158, 161, ¶ 9 (App. 2009).
The element of knowledge may be established by proving the appellant was
aware of the high probability the product contained a dangerous drug and
acted with a conscious purpose to avoid learning the true contents of the
package. See State v. Diaz, 166 Ariz. 442, 445 (App. 1990), vacated in part on
other grounds, 168 Ariz. 363, 366 (1991). Even if the factual basis itself does
not address this element, a factual basis can be supplemented by other
documents in the record. State v. Salinas, 181 Ariz. 104, 106 (1994). Further,
a factual basis does not need to be supported by evidence indicating guilt
beyond a reasonable doubt; it only needs to be supported by strong
evidence of guilt. Id.

¶6 Here, the record establishes that Kim was aware of the high
probability the product contained a dangerous drug. He knew ingesting
even small amounts of the product was causing people to “pass out.” The
product had a label that included the imperative: “Warning! Not for
Human Consumption.” When initially asked about the item, Kim said the
product was not sold at the store. The product was not displayed for sale
but was kept in a concealed area. After the undercover officer purchased
the product, Kim instructed him to not tell anyone where he had purchased
it. These facts are strong evidence of mens rea and guilt, satisfying the
necessary factual basis.

II. Ineffective Assistance of Counsel

¶7 Kim argues his counsel was ineffective because his counsel
advised him that his alleged lack of knowledge about the contents of the
sold product was not a defense. Kim claims his counsel should have been
aware of the relevant law establishing that the State must prove a defendant

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 STATE v. KIM
Decision of the Court

knew the contents of a product he sold. Although that is true, self-imposed
ignorance cannot shield defendants from criminal responsibility. See Diaz,
166 Ariz. at 445. As we have recognized, substantial circumstantial
evidence established Kim’s knowledge of the product’s contents. Given
these facts, the court did not abuse its discretion in finding his counsel was
not ineffective.

¶8 Accordingly, we grant review, but deny relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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