AZ Sup. Ct. rules unanimously against enhancements where no child is involved
By Howard Fischer . . . Judges cannot impose enhanced sentences on those convicted of soliciting sex with a minor when it turns out there was no child to begin with, the Arizona Supreme Court ruled Wednesday.
In their unanimous decision, the justices upheld a lower court ruling that said Dale A. Wright can be found guilty even though the person he contacted actually was a postal inspector. In that ruling, the Court of Appeals said the crime of solicitation does not require that a victim actually engage in the conduct — or that there is an actual victim.
The justices said the offenses can be designated as a “dangerous crime against children,” allowing a judge to place Wright on lifetime probation.
But Chief Justice Scott Bales said it’s quite something else to impose longer prison terms based on the supposed age of the non-existent child who, by definition, was never molested in the first place.
Bales said that’s not how the law is worded, and was not the intent of lawmakers who enacted it more than three decades ago.
Wright was convicted in 1992 after pleading guilty to two counts of soliciting to have sex with a minor. That was based on his soliciting a postal inspector, posing as a mother of two children younger than 13, to have sex with her children.
After being sentenced to 10 years in prison, he was placed on lifetime probation as the offenses he was trying to commit are designated by law as “dangerous crimes against children.”
When the state sought to have his probation revoked — the ruling does not explain why — Wright asked the court to look at the question of whether the offenses to which he pleaded guilty fall into the “dangerous crimes against children” category.
The appellate court concluded they do, saying it’s irrelevant that there never was a child victim. That paved the way for him to be sent back to prison.
But that still left the question of how much more time Wright would have to serve. And that goes to the question of whether the presumptive 10-year term for a dangerous crime against children was proper.
Bales said it was not.
He pointed out that the sentencing scheme prescribes the harshest penalties when the victims are youngest and most vulnerable, and when the touching is most invasive.
“The severity of punishment decreases where the victim is old or the touching not completed,” the chief justice continued. “These graduated sanctions suggest that the Legislature similarly intended less severe punishment when there is no actual child victim.”
Bales said that is backed up by legislative history.
“The concept behind these increased sentences is that the young people are scarred for life,” Bales quoted then-Sen. Peter Kay, sponsor of the 1985 legislation, saying at that time.
“Thus the purpose of the statute was to provide enhanced punishment for offenders who harmed actual — not fictitious — children,” Bales said.
If lawmakers wanted increased penalties in these circumstances they could have written the measure to say they apply even in cases where there is “a person posing as a minor under the age of 15,” the chief justice wrote.
Wednesday’s ruling requires that Wright be resentenced. The presumptive term available under the new court ruling is 3 1/2 years.
Maricopa County Attorney Bill Montgomery, whose office prosecuted Wright, said he agrees with the ruling.
Source: Tucson.com
