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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    STEPHEN LEWIS SMITH, Petitioner.

                         No. 1 CA-CR 15-0037 PRPC
                                FILED 1-3-17


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2007-008780-001
                    The Honorable Rosa Mroz, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Stephen Lewis Smith, Kingman
Petitioner
                             STATE v. SMITH
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Paul J. McMurdie joined.


N O R R I S, Judge:

¶1           Stephen Lewis Smith petitions this court for review from the
summary dismissal of his third petition for post-conviction relief. We grant
review, but deny relief.

¶2             In 2008, Smith pled guilty to two counts of attempted sexual
exploitation of a minor, both class 3 felonies. In his petition for review,
Smith argues the superior court should not have summarily denied his
petition for post-conviction relief under Arizona Rule of Criminal
Procedure 32.1(h) because the State failed to identify any “actual” minor
under Arizona Revised Statutes (“A.R.S.”) section 13-3553(A)(2) (2010)
(defining crime of sexual exploitation of a child as possessing “any
depiction in which a minor is engaged in exploitative exhibition or other
sexual conduct”),1 and State v. Hazlett, 205 Ariz. 523, 527, ¶ 11, 73 P.3d 1258,
1262 (App. 2003) (violation of A.R.S. § 13-3553 requires actual living human
being). Therefore, Smith argues he was actually innocent of the crimes he
pled guilty to, and the superior court should not have summarily denied
his third petition for post-conviction relief. Reviewing the superior court’s
ruling for an abuse of discretion, we reject this argument. See State v.
Swoopes, 216 Ariz. 390, 393, ¶ 4, 166 P.3d 945, 948 (App. 2007) (appellate
court reviews ruling on post-conviction petition for abuse of discretion)
(citations omitted).

¶3               Under Rule 32.1(h), a defendant claiming actual innocence in
a post-conviction petition must show “by clear and convincing evidence
that . . . no reasonable fact-finder would have found defendant guilty of the
underlying offense beyond a reasonable doubt.” At the change of plea
hearing, the prosecutor described the electronic images Smith possessed on
his computer as images that were “visual depictions in which minors were
engaged in exploitative sexual conduct.” Counsel for Smith added, “[s]ome
of them were very obviously under 15 years of age.” The superior court

              1The Legislature has not amended this statute since the date
of Smith’s offenses. Thus, we cite to the current version of the statute.


                                       2
                             STATE v. SMITH
                            Decision of the Court

asked Smith if he agreed with the factual basis as set out by the prosecutor
and his attorney. Smith responded, “yes.” In his third petition for post-
conviction relief, Smith offered no evidence to support that he was actually
innocent. Instead, without citation to authority, he asserted the state was
required to establish the actual identity of the minor or minors to satisfy the
actual victim requirement of Hazlett. Neither Hazlett nor A.R.S. § 13-3553,
however, require proof of the actual identity of the minor or minors.
Because Smith has not presented any evidence he was actually innocent, we
agree with the superior court that he has not met his burden under Rule
32.1(h).

¶4             To the extent Smith challenges the adequacy of the factual
basis for his plea, he is barred from doing so here. Pursuant to Ariz. R. Crim.
P. 32.2(a)(2), a defendant is precluded from relief on a ground raised and
adjudicated on the merits in a previous collateral proceeding. Smith
challenged the factual basis for his plea in the second petition for post-
conviction relief. Because the superior court adjudicated that challenge on
the merits in denying Smith’s second petition for post-conviction relief,
Smith is precluded from asserting that challenge again.

¶5          For the foregoing reasons, the superior court properly
dismissed Smith’s third petition for post-conviction relief. Accordingly,
although we grant review, we deny relief.




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

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