                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                        AMILE JONES, JR., Appellant.

                             No. 1 CA-CR 16-0353
                               FILED 3-14-2017


          Appeal from the Superior Court in Maricopa County
                       No. CR 1992-010142-001
         The Honorable Charles Donofrio, III, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By David A. Simpson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Thomas K. Baird, Tennie B. Martin
Counsel for Appellant
                            STATE v. JONES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.


D O W N I E, Judge:

¶1            Amile Jones, Jr., appeals from an order reinstating him to
lifetime probation after a probation violation, arguing his attempted child-
abuse conviction is not a dangerous crime against children (“DCAC”), so
lifetime probation is unavailable. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Jones pleaded guilty in 1994 to one count of second-degree
murder and one count of attempted child abuse stemming from the 1992
death of a 23-month-old child. The superior court sentenced Jones to 21
years in prison for the murder and suspended sentence and imposed
lifetime probation for the attempted child-abuse conviction.

¶3            Jones was released from prison in November 2013 and began
serving lifetime probation. In February 2016, his probation officer filed a
revocation petition based on several alleged probation violations.1 After
an evidentiary hearing, the superior court adjudicated Jones in violation of
probation.

¶4            Although Jones did not contest the lifetime-probation term
at the time of his 1994 sentencing,2 he did so during the 2016 probation-
violation proceedings, arguing the attempted child-abuse conviction was
not a DCAC, and lifetime probation was thus unavailable.

¶5            The superior court ruled that Jones’s challenge was untimely
and also concluded the DCAC designation was proper. The court
reinstated Jones to lifetime probation. Jones timely appealed. We have

1       There were earlier probation revocation proceedings, but they are
not at issue in this appeal.
2       On the contrary, the plea agreement Jones signed stated:
“Defendant shall be sentenced to prison on Count 1 [second degree
murder] and lifetime probation on Count II [attempted child abuse].”



                                     2
                            STATE v. JONES
                           Decision of the Court

jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and Arizona Revised Statutes (“A.R.S.”) section 13-4033(A).

                              DISCUSSION

¶6            Jones contends the court erroneously deemed his challenge
to lifetime probation untimely and also erred by refusing to strike the
DCAC designation. We address only the second argument because, as the
State concedes, Arizona Supreme Court precedent establishes that Jones’s
challenge was timely. See State v. Regenold, 226 Ariz. 378, 379, ¶8 (2011)
(sentence imposed in contested probation revocation proceeding is not
entered pursuant to underlying plea agreement); see also State v. Sullivan,
205 Ariz. 285, 288, ¶ 15 (App. 2003) (court of appeals may not overrule,
modify or disregard decisions of Arizona Supreme Court).

¶7            The plea agreement recites that Jones pleaded guilty to
“attempted child abuse, a class 3 felony and dangerous crime against
children in the second degree, in viol. of A.R.S. secs. 13-3623(A) (B),
13-1001, 13-604.01, 13-701, 13-702, 13-801 and 13-812.”3 The crime to
which he admitted, A.R.S. § 13-1001, was “in the second degree” because
it was a preparatory offense.

¶8           Jones contends that because he pleaded guilty to a class 3
felony, he was not subject to DCAC-enhanced sentencing. The State
counters that Jones pleaded guilty “to attempted child abuse with a
knowing or intentional mental state, and the law at the time expressly
allowed for lifetime-probation sentences for that crime.” We agree with
the State.

¶9           Section 13-3623(B) identifies three felony classifications
based on the perpetrator’s mental state for child abuse committed
“[u]nder circumstances likely to produce death or serious physical
injury”:

      1. If done intentionally or knowingly, the offense is a class 2
         felony and if the victim is under fifteen years of age it is
         punishable pursuant to section 13-604.01.

      2. If done recklessly, the offense is a class 3 felony.


3       We cite the 1992 version of statutes because they were the statutes
in effect at the time of the underlying offenses.



                                      3
                            STATE v. JONES
                           Decision of the Court


      3. If done with criminal negligence, the offense is a class 4
         felony.

Section 13-604.01, in turn, lists crimes that are DCAC offenses when
“committed against a minor under fifteen years of age.” A.R.S.
§ 13-604.01(K)(1). One such crime is “Child abuse as defined in § 13-3623,
subsection B, paragraph 1.” A.R.S. § 13-604.01(K)(1)(h). A person
convicted of a DCAC in the second degree may be placed on probation
“for any term up to the rest of the person’s life.” A.R.S. § 13-604.01(I).

¶10            A completed violation of A.R.S. § 13-3623(B)(2) (reckless
child abuse) would have resulted in a class 3 felony, and an attempted
violation of (B)(2) would have been a class 4 felony. A.R.S. § 13-1001(C)(3)
(“Attempt is a . . . . [c]lass 4 felony if the offense attempted is a class 3
felony.”). As the State observes, Jones could only have committed
attempted child abuse as a class 3 felony by attempting to commit
knowing or intentional child abuse under subsection (B)(1).

¶11           Although A.R.S. § 13-604.01 does not use the word
“attempt,” § 13-604.01(K)(1) specifies that a DCAC is “in the first degree if
it is a completed offense and is in the second degree if it is a preparatory
offense.” Attempt is a preparatory offense. State v. Newell, 212 Ariz. 389,
405 n.13, ¶ 83 (2006). Preparatory conduct in furtherance of the crimes
identified as DCAC in § 13-604.01(K) constitutes a DCAC offense. State v.
Peek, 219 Ariz. 182, 183–85, ¶¶ 7–8, 19 (2008) (Holding that § 13-604.01
reference to preparatory crimes is “clear language subjecting attempt
offenses” to its provisions, including designation and sentencing as
DCAC, and noting that “[b]efore 1994, a person convicted of any second
degree DCAC could be placed on lifetime probation.”); Wright v. Gates,
240 Ariz. 525, 527, ¶ 11 (App. 2016) (“[N]one 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.”); State v. Carlisle, 198 Ariz.
203, 207, ¶ 17 (App. 2000) (“The legislature specifically classified
preparatory offenses such as attempt, other than attempted first degree
murder, as dangerous crimes against children in the second degree
provided the completed offense would have been a dangerous crime
against children in the first degree.”).

¶12          Because Jones was convicted of a preparatory offense in
furtherance of a DCAC crime, he was subject to lifetime probation.



                                     4
                          STATE v. JONES
                         Decision of the Court

                            CONCLUSION

¶13           For the reasons stated, we affirm Jones’s reinstatement to
lifetime probation.




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




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