IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

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. 1 CA-SA 16-0058

Petition for Special Action from the Superior Court in Maricopa County

No. CR 1992-003917

The Honorable Pamela S. Gates, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Maricopa County Legal Advocate’s Office, Phoenix

By Frances J. Gray

Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix

By Christine A. Davis, David R. Cole

Counsel for Real Party in Interest 
WRIGHT v. HON. GATES/STATE 

Opinion of the Court 

2

OPINION

Judge Patricia A. Orozco delivered the opinion of the Court, in which Judge 

Kenton D. Jones joined and to which Presiding Judge Diane M. Johnsen 

dissented.

O R O Z C O, Judge:

¶1 Dale Allen Wright seeks special action relief from a trial court 

order finding that his convictions were properly classified as dangerous 

crimes against children (DCAC) and that a conviction for solicitation to 

commit molestation of a child does not require the existence of an actual 

child victim. For the following reasons, we accept jurisdiction, but deny 

relief.

FACTS AND PROCEDURAL HISTORY

¶2 In April 1992, Wright was charged with several counts of 

solicitation to commit molestation of a child, as DCAC, after soliciting a 

postal inspector to allow him to engage in sexual conduct with her two 

fictitious children, represented as under thirteen. He pled guilty to two 

counts of solicitation to commit molestation of a child, both class three 

felonies and DCAC, and was sentenced to lifetime probation on each count. 

In August 2002, Wright’s probation was revoked as to one of the counts and 

Wright was sentenced to ten years’ imprisonment. Upon release from 

prison in 2008, Wright’s lifetime probation on the second count was 

reinstated. 

¶3 Wright was arraigned on a petition to revoke probation in 

September 2014. Wright moved to dismiss the DCAC designation and 

requested a delayed Rule 32 petition. Without deciding the merits, the trial 

court denied the request, finding that such relief could be achieved by 

“withdraw[ing] from the plea agreement for manifest injustice.” 

¶4 In July 2015, Wright was again arraigned on a petition to 

revoke his probation. Wright renewed his request that the court “strike the 

DCAC designation” and modify his sentence accordingly. The court again 

declined to hear Wright’s motion on the merits, because “a probation 

violation [proceeding] is [not] the appropriate vehicle” for the requested 

relief. Wright then filed a petition for special action in this court, requesting 

a remand for “consideration of the substantive issues.” This court accepted 
WRIGHT v. HON. GATES/STATE 

Opinion of the Court 

3

jurisdiction and granted relief, directing the trial court to “address the 

merits of Wright’s motion by treating it as a motion for modification of 

probation under Rule 27.3 of the Arizona Rules of Criminal Procedure.” 

¶5 On remand, the trial court heard oral argument on Wright’s 

motion to strike the DCAC designation. After taking the matter under 

advisement, the trial court denied Wright’s motion, finding that the crimes 

were properly designated as DCAC. This special action followed. We 

subsequently requested additional briefing, which we also consider.

SPECIAL ACTION JURISDICTION

¶6 Special action jurisdiction is appropriate because Wright does 

not have an equally plain, speedy, and adequate remedy by appeal, and this 

is an issue of first impression and statewide importance. See Ariz. R.P. Spec. 

Act. 1(a), 8(a); Vo v. Super. Ct. In and For Cty. of Maricopa, 172 Ariz. 195, 198, 

(App. 1992). Therefore, we accept jurisdiction. 

DISCUSSION

I. Solicitation as a DCAC Offense

¶7 Wright argues that the legislature did not intend solicitation 

to be classified as DCAC based on general rules of statutory interpretation 

and the applicable statutory scheme. 

¶8 We review a trial court’s construction of a statute de novo, 

“looking first to the provision’s plain language and considering the 

common meaning of any undefined terms.” State v. Decker, 239 Ariz. 29, 32, 

¶ 14 (App. 2016). When statutes relate to the same subject matter, we 

construe them together and attempt to reconcile them to give effect to all 

provisions involved. Bell v. Indus. Comm’n, 236 Ariz. 478, 480, ¶ 7 (2015). 

We apply the terms of a statute “without resorting to other tools of statutory 

interpretation, unless doing so leads to impossible or absurd results.” Orca 

Comm’ns Ultd., LLC v. Noder, 236 Ariz. 180, 182, ¶ 9 (2014). When there is 

only one reasonable interpretation, it is applied without further analysis. 

Backus v. State, 220 Ariz. 101, 104, ¶ 11 (2009). 

¶9 In 1992, Arizona Revised Statutes (A.R.S.) section 13-604.01 

included a list of specific crimes defined as DCAC offenses when 

“committed against a minor under fifteen years of age.” A.R.S. 

§ 13-604.01.K.1 (1992). Presumably, the goal of the legislature in 

designating certain crimes as DCAC was to protect children and provide 

more severe punishments for crimes against them. See State v. Wagstaff, 164 
WRIGHT v. HON. GATES/STATE 

Opinion of the Court 

4

Ariz. 485, 490-91 (1990). A DCAC offense could be either completed or 

preparatory, and included “molestation of a child” as one of the specific 

crimes delineated as a DCAC offense. A.R.S. § 13-604.01.K.1.d. Solicitation 

is a preparatory offense. A.R.S. § 13-1002 (West 2016).1 

¶10 According to A.R.S. § 13-604.01.K.1, 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.” Wright argues that only crimes specifically identified 

in the statute are DCAC. He argues that because A.R.S. § 13-604.01.K.1 did

not specifically include solicitation, it was not a DCAC offense. Wright 

further argues that “subsection (K) is specific: it does not define a second 

degree DCAC offense as any preparatory offense or all preparatory offenses. 

The definition simply says a preparatory offense, thereby distinguishing 

between complete and incomplete offenses listed in subsection (a) – (m).”

¶11 Wright’s interpretation of A.R.S. § 13-604.01 is inconsistent 

with the statute’s plain meaning and interpretation. As defined by A.R.S. 

title 13, chapter 10, none 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. Compare A.R.S. § 13-604.01.K.1, with A.R.S. §§ 13-1001 to -1004 

(defining the preparatory crimes of attempt, solicitation, conspiracy and 

facilitation).

¶12 Although solicitation is not an enumerated DCAC offense, in 

reading A.R.S. § 13-604.01 in its entirety, the only explanation for the 

legislature’s inclusion of the language regarding preparatory offenses is 

that it intended any offense in preparation of any DCAC offense, as defined 

by the statute, to also qualify as a DCAC offense. Simply put, any 

preparatory conduct in furtherance of the crimes identified as DCAC 

pursuant to A.R.S. § 13-604.01.K constitutes a DCAC offense; it is the illegal 

nature of the conduct solicited that gives rise to the DCAC designation. See,

e.g., State v. Peek, 219 Ariz. 182, ¶¶ 7, 19 (2008) (finding that the reference in 

§ 13-604.01 to preparatory crimes is “clear language subjecting attempt 

offenses” to its provisions, including designation and sentencing as DCAC). 

 

1 Absent a material change relevant to our opinion, we cite to the most 

recent version of a statute.
WRIGHT v. HON. GATES/STATE 

Opinion of the Court 

5

II. Solicitation Does Not Require an Actual Victim

¶13 Wright also argues that the trial court erred because “the 

legislature intended DCAC penalties to apply only to crimes involving

actual minors.” 

¶14 Pursuant to A.R.S. § 13-1002, a person is guilty of solicitation 

when he intends to “promote or facilitate the commission of a felony” by 

“command[ing], encourag[ing], request[ing] or solicit[ing]” another to 

engage in illegal conduct. A.R.S. § 13-1002.A. Solicitation does not require 

any agreement by the solicited child to engage in such conduct. The crime 

is complete “when the solicitor, acting with the requisite intent, makes the 

command or request.” State v. Miller, 234 Ariz. 31, 41, ¶ 32 (2013) (first 

quoting State v. Johnson, 131 Ariz. 299, 302 n. 1 (1982) and then quoting W. 

LaFave & A. Scott, Handbook on Criminal Law (1972)). The crime of 

solicitation is a “crime separate from the crime solicited.” State v. Flores, 218 

Ariz. 407, 410, ¶ 7 (App. 2008). Legal incapability of “committing the 

offense that is the object of the solicitation” is not a defense to solicitation. 

A.R.S. § 13-1006.B; see also State v. Carlisle, 198 Ariz. 203, 207, ¶ 17 (App. 

2000) (“The absence of an actual victim under the age of fifteen does not 

preclude an attempted crime from being a dangerous crime against 

children.”); State v. McElroy, 128 Ariz. 315, 317 (1981) (holding that factual 

impossibility is not a defense to an attempt crime).

¶15 Wright solicited a postal inspector “posing as the parent of 

two children whom she offered to make available for sex acts.” The act of 

solicitation was complete when Wright requested the postal worker allow 

him to engage in sexual conduct with those children. A preparatory offense 

is one committed “in preparation for committing a completed crime.” 

Mejak v. Granville, 212 Ariz. 555, 558, ¶ 18 (2006). The trial court properly 

determined that the conduct solicited, the sexual molestation of a child, was 

a DCAC offense and sentenced Wright accordingly. Therefore, the trial 

court did not err in denying Wright’s motion for modification of probation.

III. The Model Penal Code is Irrelevant

¶16 The dissent contends that because the legislature did not 

include the Model Penal Code’s additional language that solicitation 

includes “an attempt to commit such crime,” that the legislature intended 

that “the object of a solicitation must be conduct for which one actually 

could be convicted.” Supra ¶ 25. The difference in wording has no bearing 

on cases involving solicitation. The crime is completed when the solicitor

makes the request. State v. Miller, 234 Ariz. at 41, ¶ 32. 
WRIGHT v. HON. GATES/STATE 

Opinion of the Court 

6

¶17 Solicitation is a preparatory offense (A.R.S. § 13-1002) and 

preparatory offenses are included in the DCAC statute. Therefore, so long 

as the preparatory conduct is in furtherance of one of the crimes identified 

as a DCAC pursuant to A.R.S. § 13-604.01.K, in this case child molestation, 

a defendant is guilty of solicitation also a DCAC. As previously stated, it is 

the illegal nature of the conduct solicited that gives rise to the DCAC 

designation. 

CONCLUSION

¶18 For the foregoing reasons, we accept jurisdiction but deny 

relief.

J O H N S E N, Judge, dissenting:

¶19 Wright pled guilty 24 years ago to two counts of solicitation 

to commit child molestation, stipulating that his offenses were dangerous 

crimes against children pursuant to Arizona Revised Statutes (“A.R.S.”) 

section 13-604.01 (1992). That statute provided, inter alia, that “molestation 

of a child” is a “[d]angerous crime against children” when committed 

“against a minor under fifteen years of age.” A.R.S. § 13-604.01(K)(1)(d). 

Wright was sentenced pursuant to § 13-604.01(K)(1), under which “[a] 

dangerous crime against children . . . is in the second degree if it is a 

preparatory offense.” At every step of the way, Wright’s pleas to 

solicitation to commit child molestation have been treated as “second 

degree” dangerous crimes against children because the statute defining 

“solicitation” appears in chapter 10 of our criminal code, titled “Preparatory 

offenses.” Wright served the prison sentence imposed on one of the two 

convictions, and now seeks relief from the lifetime probation imposed on 

the other.

¶20 I respectfully dissent from the denial of relief to Wright 

because I am compelled to conclude that, under the language of the Arizona 

statute defining solicitation, one cannot be convicted of soliciting another 

to commit molestation of a child in the absence of an actual child. I agree 

that a valid conviction of solicitation to commit child molestation may 

constitute a dangerous crime against children. More broadly, I agree that 

solicitation to commit any crime that constitutes a dangerous crime against 

children may itself be a (second-degree) dangerous crime against children. 

But that is not what we have here. Because our record contains insufficient 

evidence to support a conviction for solicitation to commit child 

molestation in the first place, Wright is entitled to relief. 
WRIGHT v. HON. GATES/STATE 

Johnsen, J. Dissenting 

7

¶21 Under A.R.S. § 13-1002(A) (2016), someone other than a peace 

officer “commits solicitation if, with the intent to promote or facilitate the 

commission of a felony or misdemeanor, such person commands, 

encourages, requests or solicits another person to engage in specific conduct 

which would constitute the felony or misdemeanor or which would 

establish the other’s complicity in its commission.” Wright was convicted 

of solicitation to commit child molestation under A.R.S. § 13-1410 (2016), 

which is committed by “intentionally or knowingly engaging in or causing 

a person to engage in sexual contact . . . with a child who is under fifteen 

years of age.” Thus, the charges to which Wright pled required proof that 

he solicited another “to engage in specific conduct which would constitute the 

felony” of child molestation, meaning, sexual contact with a child under 

fifteen. A.R.S. §§ 13-1002(A) (emphasis added), -1410.

¶22 But the conduct that Wright solicited the postal inspector to 

commit would not have constituted child molestation. As the State 

acknowledges, under § 13-1410, the crime of child molestation requires 

sexual conduct “with an actual child.” The “children” that Wright spoke 

about with the postal inspector were not real, but made-up. Thus, when 

Wright “command[ed], . . . request[ed] or solicit[ed]” the postal inspector 

to engage in sexual contact with the fictitious “children,” the sexual contact 

they discussed would not have “constituted the felony” of child 

molestation pursuant to § 13-1002(A) because no actual child was involved.

¶23 In urging this court to deny relief, the State overlooks the 

distinction between the crime of attempt, pursuant to A.R.S. § 13-1001

(2016), and the crime of solicitation, pursuant to § 13-1002(A). A person is 

guilty of attempt if, acting with the requisite intent, the person 

“intentionally engages in conduct which would constitute an offense if the 

attendant circumstances were as such person believes them to be.” A.R.S. 

§ 13-1001(A)(1). Thus, a person who intends to molest someone he 

mistakenly believes is a child may be guilty of attempted child molestation. 

And the crime that person commits may be a second-degree dangerous 

crime against children pursuant to § 13-604.01(K). See State v. Carlisle, 198 

Ariz. 203, 207, ¶ 17 (App. 2000) (“The absence of an actual victim under the 

age of fifteen does not preclude an attempted crime from being a dangerous 

crime against children.”).

¶24 Contrary to the State’s contention, however, we may not 

sweep all “preparatory crimes” with the same broad brush. Attempt and 

solicitation are two separate crimes, with distinct elements. Carlisle did not 

address solicitation, which, by contrast to attempt, does not permit a 

conviction when the defendant solicits conduct that he mistakenly believes 
WRIGHT v. HON. GATES/STATE 

Johnsen, J. Dissenting 

8

would constitute a crime. The State argues that solicitation is a preparatory 

crime that can constitute a second-degree dangerous crime against children, 

pursuant to § 13-604.01(K). That is true, but only so long as a defendant has 

committed solicitation. Arizona’s solicitation statute requires the 

defendant to solicit conduct that would actually constitute a crime; it does 

not allow a conviction for soliciting conduct that the defendant incorrectly 

believes would constitute a crime. To say simply that a solicitation is 

complete upon the solicitor’s request is to disregard the other elements of 

the crime of solicitation, which require solicitation of conduct that actually 

would constitute another crime.

¶25 The history of § 13-1002 eliminates any doubt that the 

legislature meant to require that the object of a solicitation must be conduct 

for which one actually could be convicted. The legislature enacted 

Arizona’s solicitation statute in 1977 as part of a broad overhaul of the 

state’s criminal code. By and large, the legislature based its comprehensive 

revisions on the Model Penal Code. Rudolph J. Gerber, State Bar of 

Arizona, Criminal Law of Arizona, at vi (1978). In crafting the language of 

our solicitation statute, however, the legislature significantly departed from 

the language of the Model Code. The relevant section of the Model Code 

defined solicitation as follows:

A person is guilty of solicitation to commit a crime if with the 

purpose of promoting or facilitating its commission he 

commands, encourages or requests another person to engage 

in specific conduct which would constitute such crime or an 

attempt to commit such crime or which would establish his 

complicity in its commission or attempted commission.

Model Penal Code § 5.02 (Am. Law Inst. 1962) (emphasis added).2

 

2 With regard to solicitation to perform an act that would not 

constitute a crime, the commentary to the Model Code explains:

It ordinarily should not be necessary to charge an actor with 

soliciting another to attempt to commit a crime, since a 

rational solicitation would never seek an unsuccessful effort 

but always the completed crime; the charge, therefore, should 

be one of solicitation to commit the completed crime. But in 

some cases the actor may solicit conduct which he and the 

party solicited believe to be the completed crime, but which, 
WRIGHT v. HON. GATES/STATE 

Johnsen, J. Dissenting 

9

¶26 With only minor stylistic changes, Arizona’s solicitation 

statute is identical to the Model Code section -- except with respect to the 

Model Code’s provision that one may be convicted of soliciting another to

commit an “attempted” offense. While the Model Code expressly allows a 

conviction for soliciting conduct that would constitute an attempted crime, 

our legislature chose to omit that language when it enacted Arizona’s 

version of the offense. Our statute allows a conviction for soliciting another 

“to engage in specific conduct which would constitute the felony or 

misdemeanor,” but does not include the Model Code’s additional language 

that would make it a crime to solicit another to engage in conduct that 

would constitute “an attempt to commit such crime.” Given how closely 

our legislature otherwise chose to follow the Model Code’s definition of 

“solicitation,” its decision to omit the Model Code’s reference to an 

“attempt to commit such crime” must have been a deliberate choice to 

which we must give meaning. This is particularly true, given that the 

distinction between a solicitation and an attempt has long been known. See 

State v. Mandel, 78 Ariz. 226, 228 (1954) (“The general rule is that solicitation 

alone or mere preparation is not sufficient to sustain a conviction for an

attempt to commit a crime.”).3

¶27 In sum, although I agree that solicitation to commit child 

molestation may constitute a dangerous crime against children, I dissent 

 

for the kind of reasons discussed in connection with legal

impossibility, does not in fact constitute the crime. Such 

conduct will constitute an attempt, and under the present 

section the actor will be liable for soliciting conduct which

constitutes an attempt.

§ 5.02 cmt. 3(a) (Am. Law. Inst. 1962).

 

3 I do not believe that the majority’s reference to A.R.S. § 13-1006(B)

(2016) bears on this analysis. That statute states, “It is not a defense to a 

prosecution for solicitation or conspiracy that the defendant is, by definition 

of the offense, legally incapable in an individual capacity of committing the 

offense that is the object of the solicitation or conspiracy.” As the title of the 

statute makes clear (“Effect of immunity, irresponsibility or incapacity of a 

party to solicitation, conspiracy or facilitation”), under this rule, one may 

be convicted for soliciting a crime or participating in a conspiracy to commit 

a crime even though, because of immunity, irresponsibility or incapacity,

one could not perform the crime himself. See, e.g., State v. Barragan-Sierra, 

219 Ariz. 276, 282, ¶ 18 (App. 2008) (defendant prosecuted for conspiring 

with others to smuggle himself into country). 
WRIGHT v. HON. GATES/STATE 

Johnsen, J. Dissenting 

10

from the court’s decision to deny relief to Wright. Based on the facts in our 

record, because the “children” who were the object of Wright’s discussions 

with the postal inspector were not real children, his guilty pleas to the two 

counts of solicitation to commit child molestation lacked sufficient factual 

bases. Accordingly, my view is that his remaining lifetime term of 

probation must be vacated. Cf. State v. Dean, 226 Ariz. 47, 52, ¶ 17 (App. 

2010) (“precedent suggests that a court must modify the period of probation 

if . . . the period is found to be illegal or unauthorized by statute”); Jackson 

v. Schneider ex rel. County of Maricopa, 207 Ariz. 325, 383-84, ¶ 10 (App. 2004) 

(“fundamental error to prescribe a probationary term that exceeds the 

period permitted by statute”).