State v. Green

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT WILBUR GREEN, JR., Petitioner.

No. 1 CA-CR 20-0074 PRPC
FILED 7-14-2020

Petition for Review from the Superior Court in Maricopa County
No. CR2017-142311-001
The Honorable Susanna C. Pineda, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Respondent

Robert Wilbur Green, Jr., Florence
Petitioner

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma, Judge Randall M. Howe and Judge
Cynthia J. Bailey delivered the decision of the Court.
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Decision of the Court

PER CURIAM:

¶1 Robert Wilbur Green, Jr., petitions this court for review from
the dismissal of his petition for post-conviction relief, filed pursuant to
Arizona Rule of Criminal Procedure (Rule) 33.1 We have considered the
petition for review and, for the reasons stated, grant review and deny relief.

BACKGROUND

¶2 The grand jury charged Green with ten counts of sexual
exploitation of a minor based on images and videos police found on his
home computer. Green retained counsel and eventually pleaded guilty to
two amended counts of attempted sexual exploitation of a minor, class 3
felonies and dangerous crimes against children in the second degree.
Abiding by the parties’ agreement, the superior court dismissed the
remaining charges and imposed a presumptive ten-year prison term
followed by lifetime probation.

¶3 Green subsequently pursued post-conviction relief (PCR).
Assigned PCR counsel reviewed the case record and plea counsel’s file but
was unable to find any colorable claims for relief. Green proceeded to
represent himself, and he timely filed a PCR petition and addendum.

¶4 Green primarily challenged his sentence as unlawful. He also
claimed the superior court violated his double jeopardy rights by relying
upon only one illicit image to support both convictions. Finally, Green
argued the search warrant that led to his arrest and convictions was
improper, and he raised claims of ineffective assistance of plea and PCR
counsel (IAC) based on allegations counsel failed to challenge the warrant.
The superior court summarily dismissed the petition.

DISCUSSION

¶5 Absent an abuse of discretion or error of law, this court will
not disturb the superior court’s ruling on a petition for post-conviction
relief. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). The petitioner bears

1 Effective January 1, 2020, our supreme court amended the
post-conviction relief rules. State v. Botello-Rangel, 1 CA-CR 19-0332 PRPC,
2020 WL 896477, at *1, ¶ 1 n.1 (Ariz. App. Feb. 25, 2020). The amended rules
apply to all cases pending on the effective date unless a court determines
that “applying the rule or amendment would be infeasible or work an
injustice.” Id. Because there were no substantive changes to the respective
rules related to this decision, we apply and cite to the current rules.

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the burden of establishing an abuse of discretion. State v. Poblete, 227 Ariz.
537, 538, ¶ 1 (App. 2011).

¶6 Green first challenges the superior court’s dismissal order
because it is unsigned. Green also contends “[t]he lower court merely
recites the defendant’s Rule 32 w/o law or factors . . . [and without
conducting an] . . . independent review of the entire record . . . for
fundamental error . . . [as required by Pacheco v. Ryan, CV-15-02264-PHX-
DGC, 2016 WL 7407242 (D. Ariz. Dec. 22, 2016).]”

¶7 Green’s arguments fail. Nothing in the post-conviction rules
requires either a signed order or an independent Anders-type2 review before
summarily dismissing a PCR petition. State v. Chavez, 243 Ariz. 313, 314, ¶
1 (App. 2017); see Ariz. R. Crim. P. 33.11(a) (“If, after identifying all
precluded and untimely claims, the court determines that no remaining
claim presents a material issue of fact or law that would entitle the
defendant to relief under this rule, the court must summarily dismiss the
petition.”). To the extent the District Court in Pacheco determined such a
review is required, we are not bound by that court’s decisions. State v.
Gates, 118 Ariz. 357, 359 (1978).

¶8 Green next contends he did not knowingly, intelligently, and
voluntarily waive his rights when he pleaded guilty. Green did not raise
this issue in the PCR petition he filed in superior court. A petition for
review may not present issues not first presented to the superior court.
Ariz. R. Crim. P. 33.16(c)(2)(B); State v. Rodriguez, 227 Ariz. 58, 61, ¶ 12 n.4
(App. 2010). In any event, the record indicates the court properly reviewed
Green’s rights with him, and he knowingly, intelligently, and voluntarily
waived them at the change of plea hearing.

¶9 Turning to the charged offenses of sexual exploitation of a
minor, Green claims only one image supported both convictions; thus, he
argues the factual basis for his convictions was insufficient. Green also
contends the offenses were victimless because he “only” possessed
pictures. Green is incorrect in both respects. The record reflects the grand
jury considered ten digital images and videos, and each count in the
indictment refers to a different image. Further, at the change of plea
hearing, defense counsel referred to the sexually explicit images of children
under the age of 15 that Green possessed on his computer. Green concurred
with counsel’s recited factual basis. And “only” possessing child
pornography as a form of sexual exploitation of minors is not a victimless

2 Anders v. California, 386 U.S. 738 (1967).

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crime. See State v. McPherson, 228 Ariz. 557, 564, ¶¶ 19–21 (App. 2012)
(recognizing that possession of child pornography “continue[s] to haunt
and harm the children depicted”); see also A.R.S. § 13-3553(A)(2) (“A person
commits sexual exploitation of a minor by knowingly . . . possessing . . . any
visual depiction in which a minor is engaged in exploitive exhibition or
other sexual conduct.”).

¶10 As he did in superior court, Green next argues his lack of a
criminal history required a lesser sentence under Arizona law, and he
otherwise contends the court failed to consider mitigating factors. But
when he pleaded guilty, Green expressly agreed to a 10-year prison
sentence followed by lifetime probation, and he waived any objections to
the court’s imposition of sentence. Green pleaded guilty to offenses that
are class 3 felonies and dangerous crimes against children in the second
degree, for which our legislature has provided a presumptive ten-year
prison term for first offenders. See A.R.S. §§ 13-705(J), (O), -3553(C);
McPherson, 228 Ariz. at 564–65, ¶¶ 23–24 (“[W]ithin constitutional confines,
it is the legislature’s prerogative, not ours, to determine the appropriate
punishment to impose for particular offenses. Our state supreme court
already has determined that the sentences currently mandated for the
possession of child pornography violate neither the Eighth Amendment to
the United States Constitution nor article II, § 15 of the Arizona
Constitution. This court is bound to follow that authority.”). Accordingly,
Green’s sentence conforms with the law.

¶11 Finally, Green re-urges his challenge to the search warrant
and the related IAC claims. By pleading guilty, however, Green has waived
any assertion that the search of his computer violated his privacy rights. See
State v. Chavez, 243 Ariz. 313, 318, ¶ 14 (App. 2017) (“A defendant who
pleads guilty waives the right to assert on review all non-jurisdictional
defenses, including deprivations of constitutional rights.”). Green’s claim
that counsel was ineffective for failing to contest the warrant’s validity also
fails. See State v. Banda, 232 Ariz. 582, 585, ¶¶ 12–13 (App. 2013) (guilty plea
waives claims of IAC except for those claims “that relate to the validity of
the plea”); State v. Quick, 177 Ariz. 314, 316 (App. 1993) (Rule 32 petitioner’s
claim of IAC is limited to “matters directly relating to the entry of a guilty
plea [not] allegedly deficient performance as to other aspects of the
representation”).

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CONCLUSION

¶12 Green fails to establish an abuse of the superior court’s
discretion. Therefore, we grant review and deny relief.

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

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