Wright v. Hon. gates/state

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

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.

No. 1 CA-SA 16-0058
FILED 9-27-2016

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

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

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
 WRIGHT v. HON. GATES/STATE
Opinion of the Court

OPINION

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.

O R O Z C O, 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In August 2002, Wright’s probation was revoked as to one of the counts and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
“withdraw[ing] 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

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 WRIGHT v. HON. GATES/STATE
Opinion of the Court

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 Maricopa, 172 Ariz. 195, 198,
(App. 1992). Therefore, we accept jurisdiction.

DISCUSSION

I. Solicitation as a DCAC Offense

¶7 Wright argues that the legislature did not intend solicitation
to be classified as DCAC based on general rules of statutory interpretation
and the applicable statutory scheme.

¶8 We review a trial court’s construction of a statute de novo,
“looking first to the provision’s plain language and considering the
common meaning of any undefined terms.” State v. Decker, 239 Ariz. 29, 32,
¶ 14 (App. 2016). When statutes relate to the same subject matter, we
construe them together and attempt to reconcile them to give effect to all
provisions involved. Bell v. Indus. Comm’n, 236 Ariz. 478, 480, ¶ 7 (2015).
We apply the terms of a statute “without resorting to other tools of statutory
interpretation, unless doing so leads to impossible or absurd results.” Orca
Comm’ns Ultd., LLC v. Noder, 236 Ariz. 180, 182, ¶ 9 (2014). When there is
only one reasonable interpretation, it is applied without further analysis.
Backus v. State, 220 Ariz. 101, 104, ¶ 11 (2009).

¶9 In 1992, Arizona Revised Statutes (A.R.S.) section 13-604.01
included a list of specific crimes defined as DCAC offenses when
“committed against a minor under fifteen years of age.” A.R.S.
§ 13-604.01.K.1 (1992). Presumably, the goal of the legislature in
designating certain crimes as DCAC was to protect children and provide
more severe punishments for crimes against them. See State v. Wagstaff, 164

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 WRIGHT v. HON. GATES/STATE
Opinion of the Court

Ariz. 485, 490-91 (1990). A DCAC offense could be either completed or
preparatory, and included “molestation of a child” as one of the specific
crimes delineated as a DCAC offense. A.R.S. § 13-604.01.K.1.d. Solicitation
is a preparatory offense. A.R.S. § 13-1002 (West 2016).1

¶10 According to A.R.S. § 13-604.01.K.1, a DCAC offense “is in the
first degree if it is a completed offense and is in the second degree if it is a
preparatory offense.” Wright argues that only crimes specifically identified
in the statute are DCAC. He argues that because A.R.S. § 13-604.01.K.1 did
not specifically include solicitation, it was not a DCAC offense. Wright
further argues that “subsection (K) is specific: it does not define a second
degree DCAC offense as any preparatory offense or all preparatory offenses.
The definition simply says a preparatory offense, thereby distinguishing
between complete and incomplete offenses listed in subsection (a) – (m).”

¶11 Wright’s interpretation of A.R.S. § 13-604.01 is inconsistent
with the statute’s plain meaning and interpretation. As defined by A.R.S.
title 13, chapter 10, none of the crimes specifically identified in A.R.S.
§ 13-604.01 are preparatory offenses. If we accept Wright’s interpretation,
the sections of the statute that reference preparatory offenses would be
meaningless. Compare A.R.S. § 13-604.01.K.1, with A.R.S. §§ 13-1001 to -1004
(defining the preparatory crimes of attempt, solicitation, conspiracy and
facilitation).

¶12 Although solicitation is not an enumerated DCAC offense, in
reading A.R.S. § 13-604.01 in its entirety, the only explanation for the
legislature’s inclusion of the language regarding preparatory offenses is
that it intended any offense in preparation of any DCAC offense, as defined
by the statute, to also qualify as a DCAC offense. Simply put, any
preparatory conduct in furtherance of the crimes identified as DCAC
pursuant to A.R.S. § 13-604.01.K constitutes a DCAC offense; it is the illegal
nature of the conduct solicited that gives rise to the DCAC designation. See,
e.g., State v. Peek, 219 Ariz. 182, ¶¶ 7, 19 (2008) (finding that the reference in
§ 13-604.01 to preparatory crimes is “clear language subjecting attempt
offenses” to its provisions, including designation and sentencing as DCAC).

1 Absent a material change relevant to our opinion, we cite to the most
recent version of a statute.

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 WRIGHT v. HON. GATES/STATE
Opinion of the Court

II. Solicitation Does Not Require an Actual Victim

¶13 Wright also argues that the trial court erred because “the
legislature intended DCAC penalties to apply only to crimes involving
actual minors.”

¶14 Pursuant to A.R.S. § 13-1002, a person is guilty of solicitation
when he intends to “promote or facilitate the commission of a felony” by
“command[ing], encourag[ing], request[ing] or solicit[ing]” another to
engage in illegal conduct. A.R.S. § 13-1002.A. Solicitation does not require
any agreement by the solicited child to engage in such conduct. The crime
is complete “when the solicitor, acting with the requisite intent, makes the
command or request.” State v. Miller, 234 Ariz. 31, 41, ¶ 32 (2013) (first
quoting State v. Johnson, 131 Ariz. 299, 302 n. 1 (1982) and then quoting W.
LaFave & A. Scott, Handbook on Criminal Law (1972)). The crime of
solicitation is a “crime separate from the crime solicited.” State v. Flores, 218
Ariz. 407, 410, ¶ 7 (App. 2008). Legal incapability of “committing the
offense that is the object of the solicitation” is not a defense to solicitation.
A.R.S. § 13-1006.B; see also State v. Carlisle, 198 Ariz. 203, 207, ¶ 17 (App.
2000) (“The absence of an actual victim under the age of fifteen does not
preclude an attempted crime from being a dangerous crime against
children.”); State v. McElroy, 128 Ariz. 315, 317 (1981) (holding that factual
impossibility is not a defense to an attempt crime).

¶15 Wright solicited a postal inspector “posing as the parent of
two children whom she offered to make available for sex acts.” The act of
solicitation was complete when Wright requested the postal worker allow
him to engage in sexual conduct with those children. A preparatory offense
is one committed “in preparation for committing a completed crime.”
Mejak v. Granville, 212 Ariz. 555, 558, ¶ 18 (2006). The trial court properly
determined that the conduct solicited, the sexual molestation of a child, was
a DCAC offense and sentenced Wright accordingly. Therefore, the trial
court did not err in denying Wright’s motion for modification of probation.

III. The Model Penal Code is Irrelevant

¶16 The dissent contends that because the legislature did not
include the Model Penal Code’s additional language that solicitation
includes “an attempt to commit such crime,” that the legislature intended
that “the object of a solicitation must be conduct for which one actually
could be convicted.” Supra ¶ 25. The difference in wording has no bearing
on cases involving solicitation. The crime is completed when the solicitor
makes the request. State v. Miller, 234 Ariz. at 41, ¶ 32.

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 WRIGHT v. HON. GATES/STATE
Opinion of the Court

¶17 Solicitation is a preparatory offense (A.R.S. § 13-1002) and
preparatory offenses are included in the DCAC statute. Therefore, so long
as the preparatory conduct is in furtherance of one of the crimes identified
as a DCAC pursuant to A.R.S. § 13-604.01.K, in this case child molestation,
a defendant is guilty of solicitation also a DCAC. As previously stated, it is
the illegal nature of the conduct solicited that gives rise to the DCAC
designation.

CONCLUSION

¶18 For the foregoing reasons, we accept jurisdiction but deny
relief.

J O H N S E N, Judge, dissenting:

¶19 Wright pled guilty 24 years ago to two counts of solicitation
to commit child molestation, stipulating that his offenses were dangerous
crimes against children pursuant to Arizona Revised Statutes (“A.R.S.”)
section 13-604.01 (1992). That statute provided, inter alia, that “molestation
of a child” is a “[d]angerous crime against children” when committed
“against a minor under fifteen years of age.” A.R.S. § 13-604.01(K)(1)(d).
Wright was sentenced pursuant to § 13-604.01(K)(1), under which “[a]
dangerous crime against children . . . is in the second degree if it is a
preparatory offense.” At every step of the way, Wright’s pleas to
solicitation to commit child molestation have been treated as “second
degree” dangerous crimes against children because the statute defining
“solicitation” appears in chapter 10 of our criminal code, titled “Preparatory
offenses.” Wright served the prison sentence imposed on one of the two
convictions, and now seeks relief from the lifetime probation imposed on
the other.

¶20 I respectfully dissent from the denial of relief to Wright
because I am compelled to conclude that, under the language of the Arizona
statute defining solicitation, one cannot be convicted of soliciting another
to commit molestation of a child in the absence of an actual child. I agree
that a valid conviction of solicitation to commit child molestation may
constitute a dangerous crime against children. More broadly, I agree that
solicitation to commit any crime that constitutes a dangerous crime against
children may itself be a (second-degree) dangerous crime against children.
But that is not what we have here. Because our record contains insufficient
evidence to support a conviction for solicitation to commit child
molestation in the first place, Wright is entitled to relief.

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 WRIGHT v. HON. GATES/STATE
Johnsen, J. Dissenting

¶21 Under A.R.S. § 13-1002(A) (2016), someone other than a peace
officer “commits solicitation if, with the intent to promote or facilitate the
commission of a felony or misdemeanor, such person commands,
encourages, requests or solicits another person to engage in specific conduct
which would constitute the felony or misdemeanor or which would
establish the other’s complicity in its commission.” Wright was convicted
of solicitation to commit child molestation under A.R.S. § 13-1410 (2016),
which is committed by “intentionally or knowingly engaging in or causing
a person to engage in sexual contact . . . with a child who is under fifteen
years of age.” Thus, the charges to which Wright pled required proof that
he solicited another “to engage in specific conduct which would constitute the
felony” of child molestation, meaning, sexual contact with a child under
fifteen. A.R.S. §§ 13-1002(A) (emphasis added), -1410.

¶22 But the conduct that Wright solicited the postal inspector to
commit would not have constituted child molestation. As the State
acknowledges, under § 13-1410, the crime of child molestation requires
sexual conduct “with an actual child.” The “children” that Wright spoke
about with the postal inspector were not real, but made-up. Thus, when
Wright “command[ed], . . . request[ed] or solicit[ed]” the postal inspector
to engage in sexual contact with the fictitious “children,” the sexual contact
they discussed would not have “constituted the felony” of child
molestation pursuant to § 13-1002(A) because no actual child was involved.

¶23 In urging this court to deny relief, the State overlooks the
distinction between the crime of attempt, pursuant to A.R.S. § 13-1001
(2016), and the crime of solicitation, pursuant to § 13-1002(A). A person is
guilty of attempt if, acting with the requisite intent, the person
“intentionally engages in conduct which would constitute an offense if the
attendant circumstances were as such person believes them to be.” A.R.S.
§ 13-1001(A)(1). Thus, a person who intends to molest someone he
mistakenly believes is a child may be guilty of attempted child molestation.
And the crime that person commits may be a second-degree dangerous
crime against children pursuant to § 13-604.01(K). See State v. Carlisle, 198
Ariz. 203, 207, ¶ 17 (App. 2000) (“The absence of an actual victim under the
age of fifteen does not preclude an attempted crime from being a dangerous
crime against children.”).

¶24 Contrary to the State’s contention, however, we may not
sweep all “preparatory crimes” with the same broad brush. Attempt and
solicitation are two separate crimes, with distinct elements. Carlisle did not
address solicitation, which, by contrast to attempt, does not permit a
conviction when the defendant solicits conduct that he mistakenly believes

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 WRIGHT v. HON. GATES/STATE
Johnsen, J. Dissenting

would constitute a crime. The State argues that solicitation is a preparatory
crime that can constitute a second-degree dangerous crime against children,
pursuant to § 13-604.01(K). That is true, but only so long as a defendant has
committed solicitation. Arizona’s solicitation statute requires the
defendant to solicit conduct that would actually constitute a crime; it does
not allow a conviction for soliciting conduct that the defendant incorrectly
believes would constitute a crime. To say simply that a solicitation is
complete upon the solicitor’s request is to disregard the other elements of
the crime of solicitation, which require solicitation of conduct that actually
would constitute another crime.

¶25 The history of § 13-1002 eliminates any doubt that the
legislature meant to require that the object of a solicitation must be conduct
for which one actually could be convicted. The legislature enacted
Arizona’s solicitation statute in 1977 as part of a broad overhaul of the
state’s criminal code. By and large, the legislature based its comprehensive
revisions on the Model Penal Code. Rudolph J. Gerber, State Bar of
Arizona, Criminal Law of Arizona, at vi (1978). In crafting the language of
our solicitation statute, however, the legislature significantly departed from
the language of the Model Code. The relevant section of the Model Code
defined solicitation as follows:

A person is guilty of solicitation to commit a crime if with the
purpose of promoting or facilitating its commission he
commands, encourages or requests another person to engage
in specific conduct which would constitute such crime or an
attempt to commit such crime or which would establish his
complicity in its commission or attempted commission.

Model Penal Code § 5.02 (Am. Law Inst. 1962) (emphasis added).2

2 With regard to solicitation to perform an act that would not
constitute a crime, the commentary to the Model Code explains:

It ordinarily should not be necessary to charge an actor with
soliciting another to attempt to commit a crime, since a
rational solicitation would never seek an unsuccessful effort
but always the completed crime; the charge, therefore, should
be one of solicitation to commit the completed crime. But in
some cases the actor may solicit conduct which he and the
party solicited believe to be the completed crime, but which,

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 WRIGHT v. HON. GATES/STATE
Johnsen, J. Dissenting

¶26 With only minor stylistic changes, Arizona’s solicitation
statute is identical to the Model Code section -- except with respect to the
Model Code’s provision that one may be convicted of soliciting another to
commit an “attempted” offense. While the Model Code expressly allows a
conviction for soliciting conduct that would constitute an attempted crime,
our legislature chose to omit that language when it enacted Arizona’s
version of the offense. Our statute allows a conviction for soliciting another
“to engage in specific conduct which would constitute the felony or
misdemeanor,” but does not include the Model Code’s additional language
that would make it a crime to solicit another to engage in conduct that
would constitute “an attempt to commit such crime.” Given how closely
our legislature otherwise chose to follow the Model Code’s definition of
“solicitation,” its decision to omit the Model Code’s reference to an
“attempt to commit such crime” must have been a deliberate choice to
which we must give meaning. This is particularly true, given that the
distinction between a solicitation and an attempt has long been known. See
State v. Mandel, 78 Ariz. 226, 228 (1954) (“The general rule is that solicitation
alone or mere preparation is not sufficient to sustain a conviction for an
attempt to commit a crime.”).3

¶27 In sum, although I agree that solicitation to commit child
molestation may constitute a dangerous crime against children, I dissent

for the kind of reasons discussed in connection with legal
impossibility, does not in fact constitute the crime. Such
conduct will constitute an attempt, and under the present
section the actor will be liable for soliciting conduct which
constitutes an attempt.

§ 5.02 cmt. 3(a) (Am. Law. Inst. 1962).

3 I do not believe that the majority’s reference to A.R.S. § 13-1006(B)
(2016) bears on this analysis. That statute states, “It is not a defense to a
prosecution for solicitation or conspiracy that the defendant is, by definition
of the offense, legally incapable in an individual capacity of committing the
offense that is the object of the solicitation or conspiracy.” As the title of the
statute makes clear (“Effect of immunity, irresponsibility or incapacity of a
party to solicitation, conspiracy or facilitation”), under this rule, one may
be convicted for soliciting a crime or participating in a conspiracy to commit
a crime even though, because of immunity, irresponsibility or incapacity,
one could not perform the crime himself. See, e.g., State v. Barragan-Sierra,
219 Ariz. 276, 282, ¶ 18 (App. 2008) (defendant prosecuted for conspiring
with others to smuggle himself into country).

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 WRIGHT v. HON. GATES/STATE
Johnsen, J. Dissenting

from the court’s decision to deny relief to Wright. Based on the facts in our
record, because the “children” who were the object of Wright’s discussions
with the postal inspector were not real children, his guilty pleas to the two
counts of solicitation to commit child molestation lacked sufficient factual
bases. Accordingly, my view is that his remaining lifetime term of
probation must be vacated. Cf. State v. Dean, 226 Ariz. 47, 52, ¶ 17 (App.
2010) (“precedent suggests that a court must modify the period of probation
if . . . the period is found to be illegal or unauthorized by statute”); Jackson
v. Schneider ex rel. County of Maricopa, 207 Ariz. 325, 383-84, ¶ 10 (App. 2004)
(“fundamental error to prescribe a probationary term that exceeds the
period permitted by statute”).

AMY M. WOOD • Clerk of the Court
FILED: AA

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