State v. Reed

Decision Date02 November 2021
Docket NumberNo. 1 CA-CR 21-0065 PRPC,1 CA-CR 21-0065 PRPC
Citation56 Arizona Cases Digest 14,501 P.3d 748
Parties STATE of Arizona, Respondent, v. Joshua Ethan REED, Petitioner.
CourtArizona Court of Appeals

56 Arizona Cases Digest 14
501 P.3d 748

STATE of Arizona, Respondent,
v.
Joshua Ethan REED, Petitioner.

No. 1 CA-CR 21-0065 PRPC

Court of Appeals of Arizona, Division 1.

FILED November 2, 2021


Maricopa County Attorney's Office, Phoenix By Daniel Strange Counsel for Respondent

Robert J. Campos & Associates, P.L.C., Phoenix By Robert J. Campos Counsel for Petitioner

Judge Paul J. McMurdie delivered the Court's opinion, in which Presiding Judge Peter B. Swann and Judge David D. Weinzweig joined.

McMURDIE, Judge:

¶1 Joshua Ethan Reed petitions this court to review the summary dismissal of his post-conviction relief petition filed under Arizona Rule of Criminal Procedure 33.1.1 We grant review and hold that Rule 33.4 imposes no filing deadline when a defendant who pled guilty to an offense not cognizable under Arizona law petitions for post-conviction relief based on actual innocence or an illegal sentence.

FACTS2 AND PROCEDURAL BACKGROUND

¶2 In January 2015, Reed posted an advertisement on Craigslist looking for "teen girls who love receiving oral." A police investigator responded with an email posing as a 14-year-old girl, and they exchanged emails for several weeks. Police contacted Reed, and he admitted to having an online conversation with someone he believed to be a 14-year-old girl about meeting to engage in sexual acts.

¶3 Reed was arrested and charged with luring a minor under 15 for sexual exploitation. See A.R.S. § 13-3554 ; State v. Moninger , 251 Ariz. 487, 500, ¶ 49, 494 P.3d 74, 77 (App. 2021) ( A.R.S. § 13-3554 defines luring by reference to the defendant's actions and "allows for prosecution of a defendant who solicits sex even from a fictitious minor."). He

501 P.3d 750

eventually pled guilty to an amended charge of attempt to commit child abuse, a class 6 felony, in violation of A.R.S. §§ 13-1001 and -3623. In the plea agreement, the parties stipulated that Reed would be placed on probation for ten years.

¶4 The superior court suspended Reed's sentence and placed him on probation in April 2016. In August 2018, he petitioned for post-conviction relief. The superior court dismissed the petition, finding it was untimely and failed to state a claim upon which relief could be granted. In March 2020, Reed filed a successive PCR petition raising several grounds for relief, including ineffective assistance of trial and PCR counsel, involuntariness of the plea, lack of a factual basis for the plea, and an illegal sentence.3 Once again, the court dismissed the petition as untimely. Reed then petitioned this court for review.

¶5 We have jurisdiction under A.R.S. §§ 13-4031 and -4239 and Arizona Rule of Criminal Procedure 33.16.

DISCUSSION

¶6 This court will not disturb a superior court's ruling on a petition for post-conviction relief absent an abuse of discretion or error of law. State v. Gutierrez , 229 Ariz. 573, 577, ¶ 19, 278 P.3d 1276, 1280 (2012) ; State v. Macias , 249 Ariz. 335, 340, ¶ 16, 469 P.3d 472, 477 (App. 2020). It is the petitioner's burden to show the superior court abused its discretion by denying the petition for post-conviction relief. See State v. Poblete , 227 Ariz. 537, 538, ¶ 1, 260 P.3d 1102, 1103 (App. 2011). But as noted below, the State concedes the factual and legal basis for the claim we are reviewing. As a result, it has the burden to show the error was harmless. See Ariz. R. Crim. P. 33.13(c). We review the court's legal conclusions de novo . State v. Pandeli , 242 Ariz. 175, 180, ¶ 4, 394 P.3d 2, 7 (2017).

¶7 On review, the State concedes error in Reed's plea agreement—that Reed pled guilty to an offense not cognizable under Arizona law.

¶8 Reed pled guilty to "attempt to commit child abuse" as a class 6 felony. See A.R.S. §§ 13-1001, -3623. Although his plea agreement did not specify a subsection of the child abuse statute, the attempt statute states that "[a]ttempt is a ... [c]lass 6 felony if the offense attempted is a class 5 felony." A.R.S. § 13-1001(C)(5). And for child abuse to be designated as a class 5 felony, it must be committed "recklessly." A.R.S. § 13-3623(B)(2).

¶9 Thus, Reed's plea presumed he attempted a reckless act. But "attempt is a specific intent crime and by definition involves intentional conduct." State v. Kiles , 175 Ariz. 358, 370, 857 P.2d 1212, 1214 (1993). Attempt to commit a reckless act is not cognizable under Arizona law because "there is no such criminal offense as an attempt to achieve an unintended result." State v. Adams , 155 Ariz. 117, 120, 745 P.2d 175, 178 (App. 1987) (citing State v. Galan , 134 Ariz. 590, 592, 658 P.2d 243, 245 (App. 1982) ). Thus, as...

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  • State v. Evans
    • United States
    • Arizona Court of Appeals
    • March 1, 2022
    ...authorized by the substantive law in effect at the time of sentencing. See, e.g. , State v. Reed , ––– Ariz. ––––, ––––, ¶ 15, 501 P.3d 748, 751 (App. 2021) (the sentence is illegal when imposed after a plea to a non-existent crime). When Evans was sentenced, A.R.S. § 13-702(B) provided:The......

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