State v. Simpson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JASON D. SIMPSON, Petitioner.
No. 1 CA-CR 20-0092 PRPC
FILED 6-8-2021
Petition for Review from the Superior Court in Maricopa County
No. CR2015-134762-001
The Honorable Warren J. Granville, Judge (Retired)
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Respondent
DuMond Law Firm PLLC, Phoenix
By Samantha Kelli DuMond
Counsel for Petitioner
Fahringer & Dubno, New York NY
By Erica T. Dubno
Counsel for Petitioner, admitted pro hac vice
STATE v. SIMPSON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David B. Gass, Judge Michael J. Brown, and Judge David
D. Weinzweig delivered the decision of the court.
PER CURIAM:
¶1 Jason D. Simpson petitions for review from the dismissal of
his petition for post-conviction relief filed under Arizona Rule of Criminal
Procedure 33. For the reasons stated, we grant review and deny relief.
BACKGROUND
¶2 Simpson pled guilty to two counts of attempted sexual
conduct with a minor (Counts 13 and 14) and one count of sexual abuse
(Count 23), class 3 felonies and dangerous crimes against children.
Simpson also pled guilty to one count of public sexual indecency (Count
26), a class 5 felony. Consistent with the parties’ stipulations in the plea
agreement, the superior court sentenced Simpson to presumptive prison
terms for Counts 23 and 26, to be followed by lifetime probation for Counts
13 and 14. The court ordered the prison sentences to run consecutively to
each other.
¶3 Simpson then sought post-conviction relief (“PCR”) and
raised four claims: (1) the factual basis supporting his conviction for Count
23 insufficiently established his “sexual intent” to commit sexual abuse, (2)
the superior court impermissibly relied on the victim’s age twice to impose
enhanced sentences, (3) the prosecution took vindictive action against him
in refusing to consider his counter-offer during plea negotiations, and (4)
his counsel was ineffective. The superior court summarily dismissed the
petition.
DISCUSSION
¶4 We will affirm the superior court’s ruling on a PCR petition
absent an abuse of discretion. State v. D’Ambrosio, 156 Ariz. 71, 73 (1988).
Repeating his claims made in superior court, Simpson first contends the
factual basis for his sexual abuse conviction was insufficient. He argues the
facts presented at the change of plea hearing did not establish he
“personally engaged in any sexual contact” with the victim or that he
otherwise acted with the requisite sexual intent.
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STATE v. SIMPSON
Decision of the Court
¶5 Contrary to Simpson’s assertion, a conviction for sexual abuse
does not require a defendant to “personally” touch the victim. See A.R.S.
§§ 13-1404 (sexual abuse committed “by intentionally or knowingly
engaging in sexual contact . . . with any person under fifteen years of age if
the sexual contact involves only the female breast”); 13-1401(A)(3)(a)
(defining “[s]exual contact” as “any direct or indirect touching . . . of any
part of the . . . female breast . . . or causing a person to engage in such contact”)
(emphasis added). Here, the factual basis established that Simpson
“knowingly directed D.L. . . . to touch the breast of S.D., a minor under the
age of 15 years[.]” The record reflects Simpson expressly agreed the factual
basis was “accurate[.]”
¶6 Simpson argues nonetheless that causing someone else to
engage in the touching is “constitutionally defective” because it fails to
establish he was motivated by sexual intent. In support, he relies on
statutory amendments in 2018 that changed the definition of sexual contact
and eliminated the lack of sexual motivation as a defense to the crimes of
sexual abuse and molestation, thereby effectively imposing on the State the
burden of proving a defendant was sexually motivated when committing
the offenses. 2018 Ariz. Sess. Laws, ch. 266, §§ 1–2 (2d Reg. Sess.).
¶7 But Simpson committed sexual abuse in 2015, three years
before the statutory revisions became effective. Thus, the amendments
apply to Simpson only if they are retroactive. Statutory amendments are
not retroactive unless expressly provided, A.R.S. § 1-244, and the only
exception is if the amendment is a procedural, rather than substantive,
change in the law. State v. Fell, 210 Ariz. 554, 560, ¶¶ 21–22 (2005). Here,
the amendments do not apply retroactively because they changed the law
substantively and the legislature did not expressly provide for their
retroactive application. The factual basis the superior court considered
when accepting Simpson’s change of plea was thus factually and legally
sufficient. See State v. Holle, 240 Ariz. 300, 304, ¶ 19 (2016) (“[T]he [pre-2018
amendment] statutory scheme clearly and unambiguously identifies the
elements of . . . sexual abuse, . . . does not include sexual motivation as an
element the state must prove, and instead unequivocally identifies lack of
sexual motivation as an affirmative defense.”).
¶8 Second, Simpson argues the sexual abuse statute is
unconstitutional because it “allows for punishment to be enhanced twice
based solely upon the victim’s age.” By pleading guilty, however, Simpson
waived any challenge to the statute’s constitutionality. State v. Crocker, 163
Ariz. 516, 517 (App. 1990); see also United States v. DeVaughn, 694 F.3d 1141,
1154 (10th Cir. 2012) (“When a defendant admits guilt of a substantive
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STATE v. SIMPSON
Decision of the Court
crime, he cannot reverse course on appeal and claim the criminal statute is
unconstitutional.”). This claim is precluded. Ariz. R. Crim. P. 33.2(a)(1).
¶9 Third, Simpson contends the prosecutor acted vindictively
because, after Simpson effectively rejected the original plea offer by
extending a counter-offer, the prosecutor retaliated by extending an offer
containing harsher terms than in the original offer. But the prosecutor was
not required to accept Simpson’s counter-offer; indeed, the prosecutor had
no obligation to enter into any plea agreement in this case, let alone to make
a second offer after Simpson rejected the first offer. See Ariz. R. Crim. P.
17.4(a)(1) (“The parties may negotiate and reach agreement on any aspect of
a case.”) (emphasis added); Restatement (Second) of Contracts § 39(1), cmt.
a (1981) (“It is often said that a counter-offer is a rejection, and it does have
the same effect in terminating the offeree’s power of acceptance.”); United
Cal. Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238, 272 (App. 1983) (citing
Restatement and finding counter-offer “was a rejection of the offer”). In
any event, the record supports the superior court’s determination that
Simpson knowingly, intelligently, and voluntarily accepted the terms that
were ultimately offered. See State v. Gill, 242 Ariz. 1, 5, ¶ 14 (2017) (“[P]lea
discussions may involve a series of offers, rejections, and counter-offers
before they are successfully concluded or terminated.”).
¶10 Finally, Simpson claims his counsel was ineffective for failing
to inform him his counter-offer would constitute a rejection of the State’s
initial plea offer. Had counsel provided proper advice, Simpson asserts, he
would have accepted the State’s initial offer and thereby obtained more
lenient and concurrent prison sentences.
¶11 To state a colorable claim of ineffective assistance of counsel
(“IAC”), a defendant must show counsel’s performance fell below
objectively reasonable standards and that the deficient performance
resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S.
668, 687–88 (1984); State v. Nash, 143 Ariz. 392, 397–98 (1985) (adopting the
Strickland test). Failure to satisfy either prong of the Strickland test is fatal
to an IAC claim. State v. Salazar, 146 Ariz. 540, 541 (1985). To establish
prejudice, a defendant must show “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
¶12 Both the initial plea offer and the offer Simpson ultimately
accepted provided for the imposition of a prison term for Count 26 and no
less than the five-year presumptive prison term for Count 23. The relevant
difference between the offers is that the initial one contained no specific
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STATE v. SIMPSON
Decision of the Court
agreement as to whether the imposed prison terms would run concurrently
or consecutively to each other, whereas the offer accepted by Simpson
specified consecutive terms. Thus, as explained to Simpson at the
settlement conference, the first offer did not require imposition of
concurrent sentences; rather, it gave the court discretion to impose either
concurrent or consecutive prison terms. But Simpson has not offered any
evidence showing the court would have imposed concurrent sentences had
Simpson accepted the initial plea offer. See State v. Rosario, 195 Ariz. 264,
268, ¶ 23 (App. 1999) (To state a colorable IAC claim, “[t]he petitioner . . .
must offer some evidence of a reasonable probability that, but for counsel’s
unprofessional errors, the outcome of the [proceeding] would have been
different.”). Because Simpson has not satisfied the prejudice prong under
Strickland, his IAC claim necessarily fails. See State v. Salazar, 173 Ariz. 399,
414 (1992) (“If no prejudice is shown, the court need not inquire into
counsel’s performance.”).
CONCLUSION
¶13 Simpson has not established that the superior court abused its
discretion by denying his PCR petition. We therefore deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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