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State ex rel. Polk v. Campbell

Court of Appeals of Arizona, First Division

August 4, 2015

STATE OF ARIZONA, ex rel. SHEILA SULLIVAN POLK, Yavapai County Attorney, Petitioner,
v.
THE HONORABLE JENNIFER B. CAMPBELL, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of YAVAPAI, Respondent Judge, FRANCIS FREDERICK KRAPS, Real Party in Interest

Special Action from the Superior Court in Yavapai County. No. P1300CR201400413. The Honorable Jennifer B. Campbell, Judge.

Sheila Sullivan Polk, Yavapai County Attorney, Prescott, By Bill R. Hughes, Counsel for Petitioner.

Law Offices of John M. Sears, P.C., Prescott, By John M. Sears, Counsel for Real Party in Interest.

Judge Jon W. Thompson delivered the Opinion of the Court, in which Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma joined.

OPINION

Page 145

Jon W. Thompson, Judge:

[¶1] Petitioner (State) seeks pre-trial special action relief. At issue is the sentencing range available for knowingly engaging in prostitution with a minor age 15 to 17 following a sting operation where a police officer posed as a 16 year-old. We agree with the State that such a conviction under Arizona Revised Statutes (A.R.S.) § 13-3212(B)(2) (Supp. 2014)[1] is sentenced as a class 2 felony subject to the sentencing enhancements of A.R.S. § 13-3212(G) as if the victim was actually 16 years old. For these reasons, we accept special action jurisdiction and grant relief.

FACTUAL AND PROCEDURAL HISTORY

[¶2] The State alleges that defendant was one of a number of men arrested on April 23, 2014 in a sting operation where officers posed as 16 year-old runaways willing to engage in sexual conduct for money. As alleged, the men had online interactions with the " runaways" followed by face-to-face contact in a hotel room. Defendant was indicted on two class 2 felony charges of child prostitution under A.R.S. § 13-3212(B)(2) and he pled not guilty. In a pretrial hearing, the trial court advised defendant that if convicted he could receive a mandatory prison sentence of 7 to 21 years pursuant to A.R.S. § 13-3212(G), and he would not be eligible for

Page 146

probation.[2]

[¶3] Defendant filed a motion for reconsideration asserting that in order for Subsection (G) to apply the victim must have been a true minor age 15 to 17. The trial court did reconsider and after oral argument found that the plain language of Subsection (G) and this court's opinion in State v. Regenold, 227 Ariz. 224, 226, ¶ 4, 255 P.3d 1028, 1030 (App. 2011) required the alleged victim to be a true minor for the enhanced terms of Subsection (G) to apply. The court found that defendant, if convicted, would be subject only to sentencing for a class 2 felony without special sentencing requirements. The State challenged that ruling in this special action.

JURISDICTION

[¶4] Special action jurisdiction is available when there is no other equally plain, speedy or adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a). Special action jurisdiction is appropriately invoked when there is an issue of statewide importance. See State v. Bernini, 230 Ariz. 223, 225, ¶ 5, 282 P.3d 424, 426 (App. 2012) citing State ex rel. Romley v. Martin, 203 Ariz. 46, 47, ¶ 4, 49 P.3d 1142, 1143 (App. 2002) (" Special action jurisdiction is appropriate in matters of statewide importance, issues of first impression, cases involving purely legal questions, or issues that are likely to arise again." ), aff'd, 205 Ariz. 279, 69 P.3d 1000 (2003). ...


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