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Wright v. Gates

Court of Appeals of Arizona, First Division

September 27, 2016

DALE ALLEN WRIGHT, Petitioner
v.
THE HONORABLE PAMELA GATES, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, STATE OF ARIZONA, Real Party in Interest.

         Petition for Special Action from the Superior Court in Maricopa County No. CR 1992-003917 The Honorable Pamela S. Gates, Judge

          Maricopa County Legal Advocate's Office, Phoenix By Frances J. Gray Counsel for Petitioner.

          Maricopa County Attorney's Office, Phoenix By Christine A. Davis, David R. Cole Counsel for Real Party in Interest.

          Judge Patricia A. Orozco delivered the opinion of the Court, in which Judge Kenton D. Jones joined and to which Presiding Judge Diane M. Johnsen dissented.

          OPINION

          OROZCO, Judge.

         ¶1 Dale Allen Wright seeks special action relief from a trial court order finding that his convictions were properly classified as dangerous crimes against children (DCAC) and that a conviction for solicitation to commit molestation of a child does not require the existence of an actual child victim. For the following reasons, we accept jurisdiction, but deny relief.

         FACTS AND PROCEDURAL HISTORY

         ¶2 In April 1992, Wright was charged with several counts of solicitation to commit molestation of a child, as DCAC, after soliciting a postal inspector to allow him to engage in sexual conduct with her two fictitious children, represented as under thirteen. He pled guilty to two counts of solicitation to commit molestation of a child, both class three felonies and DCAC, and was sentenced to lifetime probation on each count. In August 2002, Wright's probation was revoked as to one of the counts and Wright was sentenced to ten years' imprisonment. Upon release from prison in 2008, Wright's lifetime probation on the second count was reinstated.

         ¶3 Wright was arraigned on a petition to revoke probation in September 2014. Wright moved to dismiss the DCAC designation and requested a delayed Rule 32 petition. Without deciding the merits, the trial court denied the request, finding that such relief could be achieved by "withdrawing] from the plea agreement for manifest injustice."

         ¶4 In July 2015, Wright was again arraigned on a petition to revoke his probation. Wright renewed his request that the court "strike the DCAC designation" and modify his sentence accordingly. The court again declined to hear Wright's motion on the merits, because "a probation violation [proceeding] is [not] the appropriate vehicle" for the requested relief. Wright then filed a petition for special action in this court, requesting a remand for "consideration of the substantive issues." This court accepted jurisdiction and granted relief, directing the trial court to "address the merits of Wright's motion by treating it as a motion for modification of probation under Rule 27.3 of the Arizona Rules of Criminal Procedure."

         ¶5 On remand, the trial court heard oral argument on Wright's motion to strike the DCAC designation. After taking the matter under advisement, the trial court denied Wright's motion, finding that the crimes were properly designated as DCAC. This special action followed. We subsequently requested additional briefing, which we also consider.

         SPECIAL ACTION JURISDICTION

         ¶6 Special action jurisdiction is appropriate because Wright does not have an equally plain, speedy, and adequate remedy by appeal, and this is an issue of first impression and statewide importance. See Ariz. R.P. Spec. Act. 1(a), 8(a); Vo v. Super. Ct. In and For Cty. of ...


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