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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THOMAS HOWARD WARNER, Petitioner.

No. 1 CA-CR 15-0616 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2012-108952-001

The Honorable Roland J. Steinle, III, Judge Retired

REVIEW GRANTED AND RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Gerald R. Grant

Counsel for Respondent

Thomas Howard Warner, Florence

Petitioner

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in 

which Judge Peter B. Swann and Judge Maria Elena Cruz joined.

FILED 10-19-2017
STATE v. WARNER

Decision of the Court

2

H O W E, Judge:

¶1 Thomas Howard Warner petitions this Court for review from 

the summary dismissal of his petition for post-conviction relief of-right.

Warner pled guilty to sexual exploitation of a minor and two counts of 

attempted sexual exploitation of a minor, all dangerous crimes against 

children. The charges were based on Warner’s admitted possession of

images of children under the age of 15 engaged in sexual conduct. The trial

court sentenced Warner to ten years’ imprisonment for sexual exploitation 

and placed him on lifetime probation for both counts of attempted sexual 

exploitation. Warner timely petitioned for post-conviction relief. The trial 

court summarily dismissed the petition pursuant to Arizona Rule of 

Criminal Procedure 32.6(c).

¶2 Warner argues on review that the trial court erred by

summarily dismissing his petition without an evidentiary hearing. Warner 

argues that he demonstrated a colorable claim that entitled him to relief. “A 

decision as to whether a petition for post-conviction relief presents a 

colorable claim is, to some extent, a discretionary decision for the trial 

court.” State v. D’Ambrosio, 156 Ariz. 71, 73 (1988). An appellate court will 

reverse a trial court’s summary dismissal only if an abuse of discretion 

affirmatively appears. State v. Watton, 164 Ariz. 323, 325 (1990).

¶3 Warner argues on review that prosecutors engaged in 

misconduct during the grand jury proceedings. We deny relief on this issue 

because Warner waived it when he pled guilty. A plea agreement waives 

all non-jurisdictional defenses, errors, and defects which occurred before

the plea. State v. Moreno, 134 Ariz. 199, 200 (App. 1982). The waiver of nonjurisdictional defects includes deprivations of constitutional rights. Tollett 

v. Henderson, 411 U.S. 258, 267 (1973).

¶4 Warner also argues that the offenses are not dangerous crimes 

against children because there were no actual victims. As charged and 

convicted in this case, a person commits sexual exploitation of a minor if 

the person knowingly distributes, transports, exhibits, receives, sells, 

purchases, electronically transmits, possesses or exchanges “any visual 

depiction in which a minor is engaged in exploitive exhibition or other 

sexual conduct.” A.R.S. § 13–3553(A)(2). Sexual exploitation of a minor 

under the age of 15 is punishable as a dangerous crime against children 

pursuant to A.R.S. § 13–705. A.R.S. § 13–3553(C). Attempted sexual 

exploitation of a minor under the age of 15 is also punishable as a dangerous 

crime against children. A.R.S. § 13–705(D), (J), and (O). As noted above, 

Warner admitted he possessed images of children under the age of 15
STATE v. WARNER

Decision of the Court

3

engaged in sexual conduct. Therefore, the offenses to which he pled guilty 

were dangerous crimes against children as defined by Arizona law.

¶5 Warner next argues that he has a variety of mental health 

issues that would have been “defenses” to the charges, some of which 

defense counsel failed to investigate during the pretrial phase and some of 

which are newly discovered evidence. We deny relief on this issue because 

Warner failed to present any evidence that he suffers from any mental 

health issue, let alone any issue that would constitute a legal defense to the 

charges or have any effect on his sentences.

1 We also deny relief because 

Warner attempts to present and argue this issue by simply referring this 

Court to the petition he filed below. A petition for review may not 

incorporate by reference any issue or argument. The petition must set forth 

specific claims, present sufficient argument supported by legal authority,

and include citation to the record. Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition 

must state “[t]he issues which were decided by the trial court and which 

the defendant wishes to present to the appellate court for review”); Ariz. R. 

Crim. P. 32.9(c)(1)(iv) (petition must contain “[t]he reasons why the petition 

should be granted” and either an appendix or “specific references to the 

record,” but “shall not incorporate any document by reference, except the 

appendices”); State v. Rodriguez, 227 Ariz. 58, 61 n.4 ¶ 12 (App. 2010) 

(declining to address argument not presented in petition).

¶6 Finally, Warner claims that defense counsel coerced Warner 

into accepting the plea offer; the State, trial court, and defense counsel 

collaborated and conspired against Warner; and the trial court was biased 

against Warner. We deny relief on these issues because Warner did not raise 

them in the petition for post-conviction relief he filed below. A petition for 

review may not present issues not first presented to the trial court. Ariz. R. 

Crim. P. 32.9(c)(1)(ii); State v. Bortz, 169 Ariz. 575, 577 (App. 1991); See also

State v. Swoopes, 216 Ariz. 390, 403 ¶ 41 (App. 2007) (holding that there is no 

review for fundamental error in a post-conviction relief proceeding).2

 

1 The ten-year prison sentence was the minimum sentence available 

for sexual exploitation of a minor. A.R.S. § 13–705(D).

2 Warner raised new issues in the two replies he filed below, but the 

trial court limited its decision to the issues in Warner’s petition for postconviction relief and the State’s response.
STATE v. WARNER

Decision of the Court

4

¶7 Accordingly, we grant review but deny relief.