Does Enhanced Sentencing Apply under DCAC if Victim is Fictitious?

The Arizona Supreme Court recently ruled that enhanced sentencing does not apply if the victim is fictitious.

Under Arizona’s Dangerous Crimes against Children statute (DCAC), a person convicted of a sexual crime against a child is subject to enhanced sentencing. These penalties are severe and designed to provide greater punishments to those convicted of the offenses.

The question for the Court in this case was whether or not enhanced sentencing should be imposed under A.R.S. § 13-705(P) (1), when there was no actual victim.

The case arose after a defendant spoke with a woman who was a federal postal law enforcement officer.  The defendant inquired about sexual involvement with the woman’s two young children, who were fictitious.

After the incident, the defendant was charged with solicitation to molest a child.  The defendant entered into a guilty plea, and was sentenced to lifetime probation.

Later, the defendant’s probation for one of the counts was revoked which resulted in an order for the defendant to serve 10 years in prison.  Upon release from prison the defendant’s lifetime probation on the second count would be reinstated.

The defendant moved to get the dangerous crimes designation dismissed.  The court denied his request for a dismissal of the charges.  However, the judge allowed him to be put back on probation as an alternative to serving a long term prison sentence.

A divided appellate court panel upheld the lower court’s decision.  It found that the enhanced sentencing applied to solicitation to commit child molestation, even though victims were fictitious.

The defendant appealed to the Arizona Supreme Court.  The Court explained that certain crimes are identified by section 13-705 as dangerous crimes against children which are perpetrated for persons less than 15 years of age.  A crime under this statute is in the first degree when the offense is actually completed.  The crime is in the second degree if the defendant attempts to commit a crime but falls short of completing the offense under A.R.S. § 13-1001.

The Court determined that in this case, solicitation to commit child molestation was a second-degree preparatory offense under A.R.S. § 13-705(O).

The defendant argued that a preparatory offense only included actions that showed a partial effort to commit a listed offense. The Court reasoned that a preparatory offense is one in which the defendant is preparing to engage, but has not committed.  Therefore, it found that soliciting under the DCAC is a second-degree dangerous crime.

The Court reasoned that the language in the statute refers to actual minors under the age of 15.  However, previous interpretation of the word minor has compelled a different meaning based on the context in which it is used.  For example, lawmakers simultaneously enacted a law allowing convictions when the minor was a law enforcement officer pretending to be a minor; it didn’t separately specify a sentence for that type of offense.

In this case, the Court found that the case law didn’t bolster an interpretation that would include fictitious children. It explained that the imposition of enhanced sentencing was reserved only for those who actually committed serious crimes against children, and that the purpose of enhanced sentencing is to address the lifelong harm to a child victim of a sex crime.  Further the Court explained that sentencing is reduced when older victims are involved, and if the molestation was not completed.

In conclusion, the Court decided that graduated penalties suggested that the lawmakers intended less serious punishments when an actual child was not victimized.  It reasoned that if fictitious children were supposed to be included in the scheme, the legislature would have included language to that effect.

Determining that there must be an actual child victim for the enhanced sentences to apply under A.R.S. § 13-705(P)(1), the Arizona Supreme Court returned the case to the lower court to continue proceedings that are consistent with this decision.

What is the Dangerous Crimes against Children law? 

The Arizona Dangerous Crimes against Children statute describes certain offenses under A.R.S. 13-705 for which enhanced sentencing is imposed. The DCAC applies when a person 18 years or older is convicted of committing specified offenses against children under the ages of 12 to 15.  The sentencing ranges vary by named offenses under the law. For example a person convicted of sexual assault on a victim faces a sentencing range of 13 years minimum and 27 years maximum years in prison. This increases to a range of 23 to 37 years in prison if the person has a prior predicated felony. In another example, luring of a minor for sexual exploitation calls for sentences of 5 years minimum and 15 years maximum prison terms. This range increases to 8 years minimum and 22 years maximum if the person is convicted and has a prior predicated felony.

Below are some of the offenses listed under the statute:

  • Attempted murder, or murder in the second degree;
  • Felony assault that results in serious physical harm;
  • Aggravated assault involving display or use of a deadly weapon;
  • Sexual assault, abuse or exploitation;
  • Child trafficking, smuggling, kidnapping, kidnapping for purposes of prostitution;
  • Drug offenses that involve a child;
  • Ongoing sexual abuse;
  • Physical injury resulting from the manufacturing of methamphetamine;
  • Bestiality;
  • Solicitation, luring or aggravated luring for sexual exploitation;
  • Misrepresentation of age;
  • Mutilation;
  • Predicated felony

A predicated felony is an offense involving child abuse, sexual crimes, or serious physical harm.  It also includes offenses that in which threatening or use of a deadly weapon occurred.

What is enhanced sentencing?

Enhanced sentencing refers to increased penalty ranges to be imposed for particular criminal convictions.  Enhanced sentencing statutes are laws enacted by the Arizona legislature intend to impose greater punishments for those convicted of felony crimes against victims, especially when the victim is a child.

Examples of crimes that fall within this category include Dangerous Crimes against Children, serious or violent crimes, and aggravated or predicated offenses.

Aggravated offenses are those that involve at least one aggravated factor.  Some aggravated factors include use or display of a deadly or dangerous weapon, and repeat offenses.

How a criminal defense attorney can help if you’ve been charged with a sex crime offense

The State of Arizona prosecutes sexual crimes against children egregiously.  A conviction of child molestation or other crimes against children call for harsh penalties which can include lengthy prison terms.  A sex crime conviction can result in a defendant being identified on public registries as a registered sexual offender.

State’s mission is to prosecute the charges.  They do not have an obligation to defend them on your behalf, or to make the process easier for you.  Neither the judge nor prosecutor will challenge weak or invalid evidence that will be used against you.  Further they will not help you find a way to mitigate charges or sentencing.  It is crucial for you to retain your own legal advocate, who will look out of your interests.

An experienced criminal defense attorney who defends persons charged with dangerous sexual crimes understands that your future and freedom are at stake.  A charge or complaint is serious, but it is not a conviction.  An accusation does not mean you will be found guilty.  You have constitutional rights that must be protected.   An effective criminal defense attorney like James Novak, of the Law Office of James Novak, can defend your charges and protect your rights.

There may be defenses available that you are not aware of, that can be used to get your charges including pre-conviction and post-conviction challenges.

Pre-conviction defenses involve attempting to get the charges dismissed or reduced by using challenges that apply to the circumstances of the case. Examples may include raising the entrapment defense,  constitutional violations, or challenging weak evidentiary issues.

Post-conviction defenses involve mitigating harsh sentences, and moving to get alternative sentences to incarceration such as probation.

You should always consult a criminal defense attorney regarding your charges before your first court appearance and before you plead guilty.  James Novak of the Law Office of James Novak, PLLC is an experienced criminal defense attorney.  He is a former prosecutor and effective trial attorney.  If retained in connection with a Tempe sex crime charge, he will make sure your rights are protected and provide you with a strong defense for your charges. He offers a free initial consultation for people facing weapons charges and other criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

If you need legal representation for your sex offense charges, you can complete the on-line form, or call  experienced criminal defense attorney James Novak at (480) 413-1499 to discuss your options for defense.

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