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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  MORTON ROBERT BERGER, Petitioner.

                         No. 1 CA-CR 16-0298 PRPC
                             FILED 7-20-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 2002-013657
                    The Honorable Rosa Mroz, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Morton Robert Berger, Florence
Petitioner
                             STATE v. BERGER
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Donn Kessler1 joined.



D O W N I E, Judge:

¶1            Morton Robert Berger petitions for review of the superior
court’s dismissal of his petition for post-conviction relief. For the following
reasons, we grant review but deny relief.

¶2             A jury found Berger guilty of 20 counts of sexual exploitation
of a minor (under 15 years of age). The superior court imposed consecutive
mitigated prison terms of ten years for each count. On direct appeal, this
Court affirmed Berger’s convictions and sentences. State v. Berger, 209 Ariz.
386 (App. 2004), opinion vacated in part, and otherwise affirmed by State v.
Berger, 212 Ariz. 473 (2006). On direct appeal, Berger did not challenge the
factual basis for his convictions, instead contesting the length of his
sentence. Indeed, this Court noted that Berger did not “protest the State’s
contention that, when discovered, he possessed thousands of images of
child pornography.” 209 Ariz. at 393, ¶ 25. And the supreme court
observed that “the images involved some fifteen different child victims.”
Id. at 479, ¶ 26.

¶3            In 2007, Berger filed a notice and petition for post-conviction
relief, again challenging the length of his sentence and requesting an
evidentiary hearing. After briefing, the superior court dismissed that
petition, and this Court denied relief.

¶4            Berger filed two petitions in 2015 challenging the factual and
legal bases for his convictions and asserting an actual innocence claim.
Berger contended the State failed to establish the identities of “actual
minor” victims depicted in the images he possessed, thus failing to prove
an essential element necessary for conviction under Arizona Revised


1      The Honorable Donn Kessler, Retired Judge of the Arizona Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.



                                      2
                              STATE v. BERGER
                             Decision of the Court

Statutes (“A.R.S.”) section 13-3553(A)(2). Treating Berger’s filings as one
petition, the superior court entered an order of dismissal, stating, in
pertinent part:

       The evidence provided by the defendant fails to meet the
       standard that must be met for the defendant to obtain post-
       conviction relief pursuant to Rule 32.1(h). The defendant
       must prove by clear and convincing evidence that, based on
       the facts presented, a reasonable fact finder could not find the
       defendant guilty of the underlying offense beyond a
       reasonable doubt. Here, one transcript Defendant supplies
       contains a doctor’s testimony that the images possessed by
       Defendant showed actual children. . . . The defendant has
       thus failed to meet his burden for Rule 32.1(h) relief.

       The defendant’s claim is more appropriately analyzed
       pursuant to Arizona Rule [of] Criminal Procedure 32.1(a), in
       that the evidence is insufficient to support a conviction.
       Defendant cannot raise such claims in an untimely or
       successive Rule 32 proceeding because the notice may only
       raise claims pursuant to Rule 32.1(d), (e), (f), (g), or (h). . . . In
       addition, the claim the defendant has raised concerning the
       sufficiency of the evidence was required to be raised on
       appeal and is therefore barred.

¶5            We agree with the superior court.2 Trial courts may
summarily dismiss a Rule 32 proceeding based on preclusion. Ariz. R.
Crim. P. 32.2(a), 32.6(c). A claim is precluded when it “has been waived at
trial, on appeal, or in any previous collateral proceeding.” Ariz. R. Crim. P.
32.2(a)(3). Any claim that could have been (or was) raised in an earlier Rule
32 proceeding is precluded. Ariz. R. Crim. P. 32.2(a); see also State v. Bennett,
213 Ariz. 562, 566, ¶ 14 (2006). To sustain his successive notice, Berger was
required to include in the notice “meritorious reasons . . . substantiating the


2    We reject Berger’s contention he is entitled to relief because the State
did not timely respond to his filings. The authorities Berger cites do not
require the court to treat the failure to respond as a confession of error and
grant relief. State ex rel. McDougall v. Superior Court, 174 Ariz. 450, 452 (App.
1993), holds that treating a failure to respond as a confession of error is
discretionary and is inappropriate if the record contains sufficient
information. The record here contains sufficient information.




                                         3
                             STATE v. BERGER
                            Decision of the Court

claim and indicating why the claim was not stated in the previous petition
or in a timely manner.” Ariz. R. Crim. P. 32.2(b).

¶6             Defense counsel raised the arguments Berger currently
asserts in the superior court. Counsel filed motions challenging the
constitutionality of the statute and argued Berger was not subject to A.R.S.
§ 13-604.01 because he did not commit an offense against a specific child.
At trial, the court modified its jury instructions to require proof that each
image was of a minor who was an “actual person.” Two witnesses testified
that the images depicted “real people” or “actual children.” The State’s
expert opined that the videos and images appeared to be of real persons.
Berger’s attorney argued to the jury that the State had not proven the
victims were actual minors, but jurors obviously disagreed. Berger did not
re-urge these claims on appeal or in a timely petition for post-conviction
relief. And he cites no relevant authority for his assertion that the State was
required to prove the actual identity of the victims. Neither applicable
statutes nor case law imposes such a requirement.

                               CONCLUSION

¶7            For the foregoing reasons, we grant review but deny relief.




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




                                        4
