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Wright v. Gates

Supreme Court of Arizona

October 4, 2017

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

         Appeal from the Superior Court in Maricopa County The Honorable Pamela Gates, Judge No. CR1992-003917

         Opinion of the Court of Appeals, Division One 240 Ariz. 525 (App. 2016)

          Bruce 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.

          Joel Feinman, Pima County Public Defender, Erin K. Sutherland (argued), Assistant Public Defender, Tucson, Attorneys for Amicus Curiae Pima County Public Defender's Office.

          CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER, BOLICK, GOULD, and LOPEZ joined.

          OPINION

          BALES, CHIEF JUSTICE.

         ¶1 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 child.

         I.

         ¶2 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 statute.

         ¶3 In 2002, Wright's probation was revoked as to one count, and Wright was sentenced to ten years' imprisonment.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.

         ¶4 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.

         ¶5 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).

         ¶6 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. ยง 13-1002(A) when no actual ...


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