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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  EVERETT RANDEL KNAPP, Petitioner.

                         No. 1 CA-CR 18-0645 PRPC
                             FILED 1-31-2019


     Petition for Review from the Superior Court in Mohave County
                         No. S8015CR201100920
                  The Honorable Derek C. Carlisle, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Mohave County Attorney’s Office, Kingman
By Matthew J. Smith
Counsel for Respondent

Carr Law Office PLLC, Kingman
By Sandra Carr
Counsel for Petitioner
                             STATE v. KNAPP
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.


M c M U R D I E, Judge:

¶1             Everett Knapp petitions this court for review from the
dismissal of his petition for post-conviction relief. 1 We have considered the
petition for review and, for the reasons stated, grant review but deny relief.

¶2            Knapp was charged with two counts of sexual conduct with
a minor. Regarding the first count, a victim’s relative stated she saw Knapp
inappropriately touching the victim. The victim confirmed this occurred.
Concerning the second count, the victim stated Knapp inappropriately
touched her after she exited the shower. Before trial, Knapp moved to
obtain specific discovery items to support his defense. The court denied his
motion. Pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), Knapp pled
guilty to two counts of attempted child molestation.

¶3           In his petition for post-conviction relief, Knapp presented
Child Protective Services (“CPS”) reports claiming the victim’s relatives
had been sexually and physically abusing the victim during the period
when Knapp was arrested. The superior court granted an evidentiary
hearing on Knapp’s petition. After hearing the evidence, the court denied
relief.

¶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).




1      Knapp also requests relief based on Arizona Rule of Criminal
Procedure 17.5, which permits the withdrawal from a guilty plea based on
manifest injustice. Because he has already been sentenced, this is not a
viable ground for relief. State v. Hanley, 108 Ariz. 144, 146 (1972).



                                      2
                            STATE v. KNAPP
                           Decision of the Court

¶5           To obtain relief based on newly-discovered evidence, the
petitioner must establish “newly discovered material facts probably exist
and those facts probably would have changed the verdict or sentence.”
Ariz. R. Crim. P. 32.1(e). Here, Knapp claims that if he had known of the
CPS reports he would not have entered the Alford plea. The superior court
did not abuse its discretion by rejecting Knapp’s claim.

¶6            The superior court found there was not a reasonable
probability that the CPS report would have changed the outcome of the
case. Knapp’s defense attempted to characterize the victim as “a very
troubled, attention seeking (sic) pre-teen who had been sexualized by
another.” The CPS reports mostly disprove this theory. While the reports
contain claims that the victim’s relatives had sexual contact with her, a
subsequent CPS investigation found all claims to be unsubstantiated. The
victim denied that her relatives had ever sexually or physically abused her.
Moreover, even if Knapp’s defense theory was true, it does not disprove his
sexual conduct with the victim. The court did not abuse its discretion by
denying the petition for post-conviction relief.

¶7           We grant review but deny relief.




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




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