Petition for Special Action from the Superior Court in
Yavapai County No. P1300CR201600966 The Honorable Bradley H.
Office of John M. Sears PC, Prescott By John M. Sears Counsel
Yavapai County Attorney's Office, Prescott By Susan L.
Eazer Counsel for Real Party in Interest
Presiding Judge Peter B. Swann delivered the opinion of the
court, in which Judge Kent E. Cattani and Judge Donn Kessler
B. Swann, Judge
This special action requires us to decide the
constitutionality of A.R.S. § 13-3961(A)(4) and the
corresponding portion of Ariz. Const. art. II, § 22(A),
which provide that a person in custody must be denied bail if
he or she is charged with molestation of a child under the
age of fifteen and the proof is evident or the presumption
great that he or she is guilty.
The petitioner, Thomas Jonathan Chantry, is being held
without bail under § 13-3961(A)(4). He seeks
special-action relief from the superior court's refusal
to consider his entitlement to bail under the standard
prescribed by § 13-3961(D), which imposes a higher
burden on the state. We accepted jurisdiction by earlier
order because the issue is one of first impression and
statewide importance, and Chantry has no adequate remedy by
appeal. Inzunza-Ortega v. Superior Court (State),
192 Ariz. 558, 560, ¶ 7 (App. 1998); Costa v.
Mackey, 227 Ariz. 565, 569, ¶ 6 (App. 2011).
The supreme court recently held, in Simpson v. Miller
("Simpson II"), that § 13-3961(A)(3) and
the corresponding portion of Ariz. Const. art. II, §
22(A), are facially unconstitutional. 241 Ariz. 341, 349,
¶ 31 (2017). Section 13-3961(A)(3) is identical to
§ 13-3961(A)(4) in all respects except that the former
statute pertains to those charged with sexual conduct with a
person under the age of fifteen, rather than molestation of a
person under the age of fifteen. Molestation of a person
under the age of fifteen is a lesser-included offense of
sexual conduct with a person under the age of fifteen.
State v. Ortega, 220 Ariz. 320, 328, ¶¶
24-25 (App. 2008). Both the greater and the lesser offense
"can be committed by a person of any age, and may be
consensual." Simpson v. Miller, 241 Ariz. at
349, ¶ 27. Because Simpson II holds that bail
cannot be denied under the standard prescribed by §
13-3961(A) for the greater offense, the statute is a
fortiori invalid with respect to the lesser offense. In
view of Simpson II, we must hold that §
13-3961(A)(4) and the corresponding portion of Ariz. Const.
art. II, § 22(A), are facially unconstitutional.
¶4 Consistent with Simpson II,
Chantry may be held without bail under § 13-3961 (D),
which provides that a person charged with a felony may be
held without bail if, after a hearing, the court finds by
clear and convincing evidence that the proof is evident or
the presumption great that the person committed the offense,
that the person poses a substantial danger to another person
or the community or engaged in conduct constituting a violent
offense, and that no condition or combination of conditions
of release may be imposed that will reasonably assure the
safety of the other person or the community. 241 Ariz. at
349-51, ¶¶ 29, 31.
Though the state contends that the court already made the
requisite findings, our review of the record reveals
otherwise. The court, in denying Chantry's motion for
reconsideration of the denial of his request for a hearing
under Simpson II, did indicate at one point that the
state had proved dangerousness in the initial bail hearing by
clear and convincing evidence. But the court then clarified
that dangerousness was "still subject to
litigation" because it "wasn't on the table at
th[e] time" of the initial hearing and Chantry therefore
might have additional evidence to present. Further, the court
stated that it had no evidence and therefore made no finding
regarding whether release conditions could reasonably assure
the safety of others and the community.
For the foregoing reasons, we grant relief. Chantry cannot be
held without bail absent compliance with the procedures and
the entry ...