from the Superior Court in Maricopa County The Honorable
Pamela Gates, Judge No. CR1992-003917
of the Court of Appeals, Division One 240 Ariz. 525 (App.
F. Peterson, Maricopa County Office of the Legal Advocate,
Frances J. Gray (argued), Deputy Legal Advocate, Phoenix,
Attorneys for Dale Allen Wright.
William G. Montgomery, Maricopa County Attorney, Jeffrey R.
Duvendack (argued), Deputy County Attorney, Phoenix,
Attorneys for State of Arizona.
Feinman, Pima County Public Defender, Erin K. Sutherland
(argued), Assistant Public Defender, Tucson, Attorneys for
Amicus Curiae Pima County Public Defender's Office.
JUSTICE BALES authored the opinion of the Court, in which
VICE CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER,
BOLICK, GOULD, and LOPEZ joined.
We here consider whether enhanced sentences may be imposed
under the dangerous crimes against children
("DCAC") statute in the absence of an actual child
victim. Consistent with the text of A.R.S. §
13-705(P)(1), which defines a DCAC offense as one that is
"committed against a minor who is under fifteen years of
age, " we hold that enhanced DCAC sentencing does not
apply when a defendant commits a crime against a fictitious
In 1992, Dale Allen Wright spoke to a woman about allowing
him to engage in sexual acts with her two young children. The
woman was actually a postal inspector, and the children were
fictitious. Wright pleaded guilty to two counts of
solicitation to commit molestation of a child. Wright's
crimes were classified as DCAC, and he was sentenced to
lifetime probation on each count in accordance with the DCAC
sentencing statute, then codified as A.R.S. § 13-604.01.
Since Wright's sentencing, § 13-604.01 has been
amended and renumbered as A.R.S. § 13-705. Because the
relevant provisions remain the same, we refer to the current
In 2002, Wright's probation was revoked as to one count,
and Wright was sentenced to ten years' imprisonment. Upon
his release, Wright's lifetime probation on the second
count was reinstated. In 2014, the State moved to revoke his
probation. Wright moved to dismiss the DCAC designation and
requested a delayed petition for post-conviction relief under
Arizona Rule of Criminal Procedure 32. Without deciding the
merits, the trial court denied Wright's request and
ultimately reinstated Wright on probation.
In 2015, the State again moved to revoke Wright's
probation, and Wright again moved to dismiss the DCAC
designation. When the court once more declined to hear his
motion on the merits, Wright petitioned for special action
relief in the court of appeals, requesting a remand for
"consideration of the substantive issues." The
court of appeals granted relief. On remand, the trial court
denied Wright's motion, finding that the crimes were
properly designated as DCAC.
Wright again brought a special action in the court of
appeals. A divided panel of that court upheld the trial
court, ruling that DCAC sentencing applies to convictions for
solicitation to commit molestation of a child when the victim
is fictitious. Wright v. Gates, 240 Ariz. 525, 528
¶¶ 14-15 (App. 2016). The dissenting judge would
have granted relief, reasoning that "one cannot be
convicted of soliciting another to commit molestation of a
child in the absence of an actual child." Id.
at 529 ¶ 20 (Johnsen, J., dissenting).
We granted review because application of the DCAC sentencing
statute is a recurring issue of statewide importance. Wright
sought Rule 32 relief only from the enhancement of his
sentences, and he only petitioned for review with respect to
the DCAC issues. Accordingly, we do not here address whether,
as the dissenting appellate judge argued, solicitation to
commit child molestation can be committed in violation of
A.R.S. § 13-1002(A) when no actual ...