                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                         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. CR-16-0435-PR
                          Filed October 4, 2017

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

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

COUNSEL:

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
                       WRIGHT V. GATES (STATE)
                         Opinion of the Court

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

CHIEF JUSTICE BALES, opinion of the Court:

¶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

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                        WRIGHT V. GATES (STATE)
                          Opinion of the Court

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. § 13-1002(A) when no actual child is involved. We have jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S.
§ 12-120.24.

                                      II.

¶7            “This case presents an issue of statutory interpretation, which
we review de novo.” State v. Jurden, 239 Ariz. 526, 528 ¶ 7 (2016). A statute’s
words are “given their ordinary meaning unless it appears from the context
or otherwise that a different meaning is intended.” State v. Miller, 100 Ariz.
288, 296 (1966).

¶8            Section 13-705(P)(1) identifies certain crimes, including child
molestation, as DCAC when they are “committed against a minor who is
under fifteen years of age.” 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.”
A.R.S. § 13-705(O).




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                       WRIGHT V. GATES (STATE)
                         Opinion of the Court

                                    A.

¶9             As a preliminary matter, we must determine whether
solicitation to commit child molestation is a second-degree preparatory
offense under A.R.S. § 13-705(O). We conclude that it is.

¶10           Section 13-705(P) lists twenty-two offenses that qualify as
DCAC if they are committed against a minor younger than fifteen,
including child molestation. The list of qualifying offenses does not itself
refer to preparatory offenses. Instead, § 13-705(O) states that a DCAC
offense “is in the second degree if it is a preparatory offense.” Because
§ 13-705 does not itself define “preparatory offense,” the phrase is best
understood as referencing the offenses identified in Title 13, chapter 10
(“Preparatory Offenses”) of the criminal code—attempt, solicitation,
conspiracy, and facilitation, see A.R.S. §§ 13-1001 to -1006—if they involve
one of the DCAC qualifying offenses listed in § 13-705(P). This conclusion
is supported by the fact that § 13-705(J), which specifies sentences for
second-degree DCAC offenses, states that it applies “[n]otwithstanding
chapter 10 of this title,” thereby indicating that the offenses would
otherwise be subject to chapter 10.

¶11           Wright argues that “preparatory offense” for purposes of
DCAC only embraces conduct reflecting an “incomplete effort to commit
one of the enumerated DCAC offenses.” Thus, a DCAC enhancement
might apply to an attempt, see A.R.S. § 13-1001, but not to solicitation
because that offense is completed with communication and cannot
comprise “conduct in furtherance of a DCAC offense.” Such a narrow
reading of “preparatory offense” is not tenable. “As the name implies, a
preparatory offense is committed in preparation for committing a
completed crime.” Mejak v. Granville, 212 Ariz. 555, 558 ¶ 18 (2006).
Whether committed by communication or conduct, a preparatory offense,
as provided in Title 13, chapter 10, in furtherance of an enumerated DCAC
offense, is punishable under the DCAC statute.

¶12        Accordingly, we conclude that solicitation of an enumerated
DCAC offense is a second-degree dangerous crime against children.




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                        WRIGHT V. GATES (STATE)
                          Opinion of the Court


                                      B.

¶13           We next turn to whether the DCAC sentencing statute applies
to offenses when the victim is a fictitious child. The statute defines a
dangerous crime against children as any of the enumerated crimes
“committed against a minor who is under fifteen years of age.” A.R.S.
§ 13-705(P)(1). By referring to “a” minor who “is” under fifteen, the statute
ostensibly refers to an actual person. This reading comports with the
legislature’s general directive that unless a statute’s context requires
otherwise, “‘[m]inor’ means a person under the age of eighteen years.”
A.R.S. § 1-215(21).

¶14           In some cases, however, the context and history of a statute
have compelled us to define “minor” differently. See State ex rel. Polk v.
Campbell, 239 Ariz. 405 (2016). For example, in Polk, we examined the child
prostitution sentencing provisions of A.R.S. § 13-3212 and concluded that,
in that context, the legislature intended “minor” to include adult peace
officers posing as minors. Id. at 409 ¶ 17. The child prostitution statute
specified different felony classifications depending on how the offender
committed child prostitution and whether the minor involved was younger
or older than fifteen. Id. at 407 ¶ 10. Although the legislature
simultaneously enacted a provision allowing convictions when the “minor”
involved was in fact a peace officer posing as a minor, the legislature did
not separately identify sentences for such offenses. Id. at 407-08 ¶¶ 10-11.
We concluded that “[i]t is implausible to infer that the legislature intended
to exclude such violations [from the sentencing provisions of the child
prostitution statute] while not otherwise identifying their punishment.” Id.
at 408 ¶ 13.

¶15            But the statute here is unlike that in Polk. The context and
history of the DCAC statute do not support reading the phrase “minor who
is under fifteen years of age” to include fictitious children. First, the
sentencing scheme of A.R.S. § 13-705 prescribes the greatest penalties when
the victims are youngest and most vulnerable and the touching is most
invasive, and the severity of punishment decreases where the victim is
older or the touching is not completed. These graduated sanctions suggest
that the legislature similarly intended less severe punishment when there
is no actual child victim. In that situation, the crime will be punished as the
law generally provides rather than with an enhanced DCAC sentence.

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                        WRIGHT V. GATES (STATE)
                          Opinion of the Court


¶16            Second, the legislative history supports applying § 13-705 by
its terms, that is, when the victim in fact is “a minor who is under fifteen
years of age.” The DCAC statute began as a Senate bill that described the
law as “prescribing sentences for sexual offenses if children are victims,”
S.B. 1021, 37th Leg., 1st Reg. Sess. (Ariz. Jan. 1985), and the bill’s sponsor
explained that “[t]he concept behind these increased sentences is that the
young people are scarred for life.” Hearing on S.B. 1021 Before the S. Comm.
on Judiciary, 37th Leg., 1st Reg. Sess. 2 (Ariz. 1985) (statement of Sen. Kay,
Chairman). Thus, the purpose of the statute was to provide enhanced
punishment for offenders who harmed actual—not fictitious—children.

¶17           Moreover, if the legislature intended to include fictitious
children within the DCAC sentencing scheme, it would have included
language such as “a person posing as a minor under the age of fifteen” in
A.R.S. § 13-705(P)(1). The legislature has done so when the distinction
between actual and putative children is relevant. For example, the child
prostitution statute at issue in Polk uses the term “minor” to define how the
offense is committed, but then provides that “[i]t is not a defense to a
prosecution . . . that the other person is a peace officer posing as a minor or
a person assisting a peace officer posing as a minor.” A.R.S. § 13-3212.

¶18          In sum, we conclude that A.R.S. § 13-705(P)(1) requires an
actual child victim for DCAC enhanced sentences to apply to the
enumerated offenses.

¶19            The court of appeals reached a different conclusion in State v.
Carlisle, 198 Ariz. 203 (App. 2000), which upheld a DCAC enhanced
sentence for a defendant convicted of attempted sexual conduct with a
minor, even though the “minor” was an adult posing as a young boy. In
Carlisle, the court reasoned that because factual impossibility is not a
defense to attempt, it is not a defense to DCAC enhancement under A.R.S.
§ 13-705. Id. at 207-08 ¶ 17. This argument, however, conflates the elements
of a preparatory offense with the statutory conditions for imposing a DCAC
enhanced sentence. Cf. State v. Williams, 175 Ariz. 98, 102 (1993) (noting the
need to distinguish between elements of offenses that may qualify as DCAC
and additional conditions for imposing sentence enhancements). Under
subsection (P), enhancements only apply when the offense “is committed
against a minor who is under fifteen years of age.” Because subsection (O)
only authorizes enhanced sentences for DCAC offenses, even if the offense

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                      WRIGHT V. GATES (STATE)
                        Opinion of the Court

is preparatory, it must have been committed against an actual child. We
thus overrule Carlisle insofar as it holds that DCAC sentencing may be
imposed under A.R.S. § 13-705 when a defendant commits a crime against
a fictitious child.

                                   III.

¶20          For the foregoing reasons, we vacate the opinion of the court
of appeals, reverse the trial court’s order denying Wright’s request to
dismiss the DCAC designation, and remand to the trial court for further
proceedings consistent with this opinion.




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