Opinion
No. 2 CA-CR 2015-0382
12-20-2017
THE STATE OF ARIZONA, Appellee, v. CLAYTON PAUL FARNSWORTH, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, Pima County Public Defender By Michael J. Miller and Erin K. Sutherland, Assistant Public Defenders, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20150660001
The Honorable Jane L. Eikleberry, Judge
VACATED IN PART AND REMANDED IN PART
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
Joel Feinman, Pima County Public Defender
By Michael J. Miller and Erin K. Sutherland, Assistant Public Defenders,
Tucson
Counsel for Appellant
SUPPLEMENTAL MEMORANDUM DECISION ON REMAND
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Espinosa concurred.
BREARCLIFFE, Judge:
¶1 The opinion of this Court filed on January 31, 2017, affirmed Farnsworth's convictions and sentences. State v. Farnsworth, 241 Ariz. 486 (App. 2017) (Farnsworth I). Farnsworth had appealed his sentence on his conviction for count two, second-degree attempted sexual conduct with a minor, because the sentence had been enhanced as a dangerous crime against children ("DCAC") offense. Id. ¶13; see A.R.S. § 13-705. We upheld that sentence under then-existing precedent, including State v. Carlisle, 198 Ariz. 203 (App. 2000). Farnsworth I, 241 Ariz. 486, ¶¶13-24. Farnsworth petitioned the Arizona Supreme Court for review.
¶2 In October 2017, our supreme court issued its opinion in Wright v. Gates, 243 Ariz. 118 (2017). The court held "that enhanced DCAC sentencing does not apply when a defendant commits a crime against a fictitious child." Id. ¶ 1. In its opinion, the court explicitly overruled Carlisle on this basis. Id. ¶ 19.
¶3 Subsequently, the supreme court granted Farnsworth's petition for review in this case. State v. Farnsworth, 243 Ariz. 150 (2017) (Farnsworth II). The court vacated that portion of our opinion affirming Farnsworth's DCAC enhanced sentence in count two and remanded the matter to us for reconsideration in light of Wright. Farnsworth II, 243 Ariz. 150.
¶4 Considering the supreme court's interpretation of A.R.S. § 13-705 in Wright and its attendant rejection of Carlisle, Farnsworth's enhanced sentence under DCAC for count two cannot stand because the victim in that count was not a minor under the age of fifteen, but was, rather, a law enforcement officer impersonating one. Consequently, an enhanced DCAC sentence is impermissible. Farnsworth's sentence for count two is therefore vacated and remanded. Our previous opinion remains unchanged in all other respects.
Disposition
¶5 This matter is remanded to the trial court for re-sentencing consistent with this supplemental decision.