State v. Maloney

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

EDWARD BERNARD MALONEY, Petitioner.

No. 1 CA-CR 24-0563 PRPC
FILED 03-25-2025

Petition for Review from the Superior Court in Yavapai County
No. V1300CR201680128
The Honorable Michael R. Bluff, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott
By Dennis M. McGrane
Counsel for Respondent

Edward Bernard Maloney, III, Buckeye
Petitioner
 STATE v. MALONEY
Decision of the Court

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Vice Chief Judge Randall M. Howe
joined.

J A C O B S, Judge:

¶1 Edward Maloney petitions this Court to review the superior
court’s denial of his first petition for post-conviction relief under Arizona
Rule of Criminal Procedure (“Rule”) 32.1. We grant review but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In March 2016, law enforcement discovered a computer at
Maloney’s residence containing images of child pornography. A grand jury
indicted Maloney on twelve counts of sexual exploitation of a minor, all
class 2 felonies. Following a trial in April 2021, a jury rendered guilty
verdicts on all counts and determined that each count was based upon
exploitive depictions of minors under fifteen years old.

¶3 The superior court sentenced Maloney to twelve consecutive
sentences of ten years each and gave Maloney credit for 178 days of
presentence incarceration. The court designated each sentence as for the
commission of dangerous crimes against children. On direct appeal, this
Court affirmed Maloney’s convictions. State v. Maloney, 1 CA-CR 21-0401,
2022 WL 16570925, at *1 ¶ 2 (Ariz. App. Nov. 1, 2022) (mem. decision).

¶4 Maloney petitioned the superior court for post-conviction
relief, and the court denied Maloney’s petition, concluding Maloney “ha[d]
not raised a colorable claim entitling him to an evidentiary hearing.”

¶5 Maloney seeks review of the court’s denial of his petition. See
Ariz. R. Crim. P. 32.1, 32.16; A.R.S. § 13-4239. We grant review.

DISCUSSION

¶6 We review the superior court’s denial of post-conviction relief
for abuse of discretion. State v. Escareno-Meraz, 232 Ariz. 586, 586 ¶ 1 (App.
2013). The court abuses its discretion “if the court makes an error of law or
fails to adequately investigate the facts necessary to support its decision.”

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Decision of the Court

State v. Bigger, 251 Ariz. 402, 407 ¶ 6 (2021). The petitioner bears the burden
to show the court abused its discretion by denying a petition for post-
conviction relief. State v. Poblete, 227 Ariz. 537, 538 ¶ 1 (App. 2011).

I. Maloney’s Sentence Does Not Violate His Constitutional
Protections Against Double Jeopardy.

¶7 Pursuant to Rule 32.1(a), a defendant may obtain post-
conviction relief when the imposed sentence violates the United States or
Arizona Constitutions. Here, Maloney argues the superior court erred by
concluding he failed to present a colorable claim relating to the
constitutionality of his sentence, claiming his sentences violate his
constitutional protections against double jeopardy.

¶8 “The Double Jeopardy Clauses of the United States and
Arizona Constitutions protect criminal defendants from multiple . . .
punishments for the same offense.” State v Ortega, 220 Ariz. 320, 323 ¶ 9
(App. 2008); see also U.S. Const. amend. V; Ariz. Const. art. II, § 10. This
Court has previously concluded that convictions and punishments for
different images discovered on one device “are constitutionally permissible
because the legislature intended the unit of prosecution to be each
individual ‘depiction.’” State v. McPherson, 228 Ariz. 557, 560 ¶ 7 (App.
2012) (citing A.R.S. § 13-3553(A)(2)).

¶9 Here, even though law enforcement discovered twelve
images of child pornography on a single computer at Maloney’s residence,
each image is a ‘depiction’ under A.R.S. § 13-3553(A)(2) and thus can be
punished separately. See id.; State v. Berger, 212 Ariz. 473, 474 ¶ 3 (2006)
(“[T]he possession of each image of child pornography is a separate
offense.”). We therefore conclude the superior court did not abuse its
discretion by finding Maloney failed to raise a colorable claim that his
double jeopardy rights had been violated.

II. Maloney’s Crimes Were Properly Designated as Dangerous
Crimes Against Children.

¶10 Next, Maloney argues the superior court abused its discretion
by finding no colorable claim as to the designation of each of his offenses as
dangerous crimes against children. Under A.R.S. § 13-3553(C), “[s]exual
exploitation of a minor is a class 2 felony” and is punishable pursuant to
A.R.S. § 13-705 “if the minor is under fifteen years of age[.]” According to
A.R.S. § 13-705(T)(1)(g), sexual exploitation of a minor is a dangerous crime
against children. Our supreme court has also recognized the legislature’s
intent to designate possession of child pornography among crimes as

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Decision of the Court

dangerous crimes against children “to punish and deter those predators
who pose a direct and continuing threat to the children of Arizona.” Berger,
212 Ariz. at 478 ¶ 22 (cleaned up).

¶11 Here, the jury convicted Maloney of twelve counts of sexual
exploitation of a minor in violation of A.R.S. § 13-3553(C), and the jury
separately found that every count was based upon illicit depictions of
minors under fifteen years old. Under A.R.S. § 13-705(T)(1)(g), Maloney’s
offenses were properly designated as dangerous crimes against children.
We therefore find the superior court did not abuse its discretion in finding
no colorable claim relating to the classification of Maloney’s convictions.

III. Maloney’s Sentences Were Properly Imposed Consecutively.

¶12 Finally, Maloney contends that the sentencing court erred in
sentencing each conviction consecutively, instead of concurrently. We
disagree. Pursuant to A.R.S. § 13-705(P), each sentence imposed for sexual
exploitation of a minor convictions “shall be consecutive to any other
sentence imposed on the person at any time[.]” This Court has previously
acknowledged the legislature’s intent for this elevated punishment for
crimes of this nature. See McPherson, 228 Ariz. at 561 ¶ 8 (“[T]he legislature
intended separate punishments for separate or duplicate images of child
pornography, even when those images are acquired at the same time.”).

¶13 Here, the sentencing court imposed twelve sentences of ten
years each, the minimum sentence required under A.R.S. § 13-705(F). The
sentencing court was required by A.R.S. § 13-705(P) to run each sentence
consecutively. We therefore find that the superior court did not abuse its
discretion in finding no colorable claim relating to Maloney’s argument that
his sentences were run consecutively in error.

CONCLUSION

¶14 We grant review but deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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