                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Respondent,

                                        v.

                 BENJAMIN JOE ESCALANTE, Petitioner.

                         No. 1 CA-CR 16-0313 PRPC
                              FILED 11-2-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2014-117628-001
                  The Honorable Danielle J. Viola, Judge

             REVIEW GRANTED AND RELIEF GRANTED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent

Maricopa County Office of the Legal Advocate, Phoenix
By Andrew C. Marcy
Counsel for Petitioner
                           STATE v. ESCALANTE
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Maria Elena Cruz joined.


H O W E, Judge:

¶1             Benjamin Joe Escalante petitions this Court for review from
the dismissal of his petition for post-conviction relief. We have considered
the petition for review and for the reasons stated, grant review and relief.

¶2            Escalante pled guilty to counts one and two for attempted
child prostitution, class 3 felonies, and count three for attempted sexual
conduct with a minor, a class 3 felony and dangerous crime against children
(“DCAC”). The trial court sentenced Escalante to 3.5 years’ imprisonment
for count one, a probation term of four years for count two, and a lifetime
probation term for count three. On review, Escalante contends that his
conviction for attempted sexual conduct with a minor was improperly
designated as a DCAC, which resulted in an unlawful sentence.

¶3              In the trial court, Escalante timely petitioned for post-
conviction relief, claiming that designating his attempted sexual conduct
with a minor offense a DCAC was improper because the “minor” was
actually an undercover police officer posing as a minor. Escalante argued
that State v. Regenold, 227 Ariz. 224 (App. 2011) and State v. Villegas, 227 Ariz.
344 (App. 2011) supported his claim. In both Regenold and Villegas, this
Court held that luring a minor for sexual exploitation is not a DCAC if the
victim is in fact not a minor.

¶4            The State responded that Escalante’s claim had already been
considered and rejected in State v. Carlisle, 198 Ariz. 203 (App. 2000), and
that notwithstanding Regenold and Villegas, Carlisle was still controlling
authority. Relying on the Carlisle decision, the trial court summarily
dismissed Escalante’s petition for post-conviction relief. Escalante timely
petitioned this Court for review.

¶5           After Escalante petitioned this Court for review, the Arizona
Supreme Court decided Wright v. Gates, __ Ariz. __, 402 P.3d 1003 (2017), in
which the supreme court concluded that “A.R.S. § 13–705(P)(1) requires an
actual child victim for DCAC enhanced sentences to apply to the



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                          STATE v. ESCALANTE
                           Decision of the Court

enumerated offenses.” Id. at __ ¶ 18, 402 P.3d at 1007. The supreme court
overruled 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.” Id. ¶ 19. Because Wright requires an actual child victim
for a conviction to be properly designated a DCAC, Escalante’s conviction
and sentence for a crime committed against an undercover police officer
cannot be designated as a DCAC. Therefore, Escalante’s sentence is
unlawful.

¶6             Accordingly, we grant review and relief. We remand to the
trial court for proceedings consistent with this decision.




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