State of Arizona Ex Rel. Polk v. Hon. campbell/francis Frederick Kraps

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA EX REL. SHEILA SULLIVAN POLK, YAVAPAI COUNTY
ATTORNEY,
Petitioner,
v.
THE HONORABLE JENNIFER B. CAMPBELL, JUDGE OF SUPERIOR COURT OF
THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF YAVAPAI,
Respondent Judge,
FRANCIS FREDERICK KRAPS,
Real Party in Interest.
No. CR-15-0303-PR
Filed May 19, 2016
Special Action from the Superior Court in Yavapai County
The Honorable Jennifer B. Campbell, Judge
No. CR 201400413
REVERSED
Opinion of the Court of Appeals, Division One
238 Ariz. 109, 357 P.3d 144 (App. 2015)
VACATED
COUNSEL:
Sheila Sullivan Polk, Yavapai County Attorney, Dennis M. McGrane
(argued), Chief Deputy County Attorney, Bill R. Hughes, Deputy County
Attorney, Prescott, Attorneys for State of Arizona
John M. Sears (argued), Law Offices of John M. Sears, P.C., Prescott,
Attorneys for Francis Frederick Kraps
STATE EX REL. POLK V. CAMPBELL (KRAPS)
Opinion of the Court
JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICE BOLICK
and JUDGE ESPINOSA joined.
JUSTICE TIMMER, opinion of the Court:
¶1 Under A.R.S. § 13-3212, enhanced and consecutive sentencing
provisions apply when a defendant is convicted of engaging in child
prostitution knowing that the person is a minor aged fifteen, sixteen, or
seventeen. We today hold that these provisions also apply when the
“minor” is actually an undercover peace officer.
I. BACKGROUND
¶2 The State indicted Francis Kraps on two counts of child
prostitution in violation of A.R.S. § 13-3212(B)(2).1 During a pre-trial
hearing, the superior court advised Kraps that if he was convicted, the court
was required to impose an enhanced sentence between seven and twenty-
one years’ imprisonment for each count without the possibility of early
release, and that the sentences would be served consecutively. See
A.R.S. §§ 13-3212(D), (G). Kraps moved for reconsideration, asserting that
because the “minors” involved were actually undercover police officers
posing as sixteen-year-old girls, these sentencing provisions did not apply.
The court agreed, ruling that “engaging in any form of child prostitution is
a Class 2 felony,” but that the enhanced sentencing and consecutive
sentencing provisions apply only when actual minors are involved. At the
State’s request, the court stayed the case to permit special action review.
¶3 The court of appeals reversed the trial court’s ruling, holding
that the enhanced sentencing provisions in § 13-3212(G) apply when an
undercover police officer poses as a minor aged fifteen, sixteen, or
 JusticeRobert M. Brutinel has recused himself from this case. Pursuant to
article 6, section 3 of the Arizona Constitution, the Honorable Philip
Espinosa, Judge of the Arizona Court of Appeals, Division Two, was
designated to sit in this matter.
1Unless otherwise noted, we cite the version of statutes in effect in April
2014, when Kraps allegedly committed the offenses.
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STATE EX REL. POLK V. CAMPBELL (KRAPS)
Opinion of the Court
seventeen. State ex rel. Polk v. Campbell, 238 Ariz. 109, 110 ¶ 1, 357 P.3d 144,
145 (App. 2015). The court did not address consecutive sentencing under §
13-3212(D). We granted Kraps’s petition for review because it presents a
recurring legal question of statewide importance. We have jurisdiction
pursuant to article 6, section 5 of the Arizona Constitution and A.R.S. § 12–
120.24.
II. DISCUSSION
¶4 Because the interpretation of § 13-3212 is an issue of law, we
review the trial court’s ruling de novo. Cf. Ariz. Citizens Clean Elections
Comm’n v. Brain, 234 Ariz. 322, 325 ¶ 11, 322 P.3d 139, 142 (2014).
¶5 Our objective in interpreting statutes is to give effect to the
legislature’s intent. Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 383
¶ 8, 296 P.3d 42, 46 (2013). If the statutory language is unambiguous, we
apply it as written without further analysis. Cf. Deer Valley Unified Sch. Dist.
No. 97 v. Houser, 214 Ariz. 293, 296 ¶ 8, 152 P.3d 490, 493 (2007). If, however,
the statute is subject to more than one reasonable interpretation, we
consider secondary principles of statutory interpretation, such as “the
context of the statute, the language used, the subject matter, its historical
background, its effects and consequences, and its spirit and purpose.” Ariz.
Citizens Clean Elections Comm’n, 234 Ariz. at 325 ¶ 11, 322 P.3d at 142
(quoting Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991)).
¶6 A person commits child prostitution by causing or enabling a
minor to engage in prostitution, § 13-3212(A), or by engaging in
prostitution with a minor, § 13-3212(B). Kraps is charged with committing
child prostitution in violation of § 13-3212(B)(2), which provides that “[a]
person who is at least eighteen years of age commits child prostitution by
knowingly . . . [e]ngaging in prostitution with a minor who the person
knows is fifteen, sixteen or seventeen years of age.” Although the
undercover police officers involved here were over age eighteen, “[i]t is not
a defense to a prosecution” under subsection (B)(2) “that the other person
is a peace officer posing as a minor or a person assisting a peace officer
posing as a minor.” A.R.S. § 13-3212(C). Kraps does not contest that the
State’s allegations support the charges under § 13-3212(B)(2).
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STATE EX REL. POLK V. CAMPBELL (KRAPS)
Opinion of the Court
¶7 The parties’ dispute instead concerns these sentencing
provisions set forth in § 13-3212:
D. Notwithstanding any other law, a sentence imposed on a
person for a violation of subsection A or subsection B,
paragraph 2 of this section involving a minor who is fifteen,
sixteen or seventeen years of age shall be consecutive to any
other sentence imposed on the person at any time.
....
G. If the minor is fifteen, sixteen or seventeen years of age,
child prostitution pursuant to subsection A and subsection B,
paragraph 2 of this section is a class 2 felony, the person
convicted shall be sentenced pursuant to this section and the
person is not eligible for suspension of sentence, probation,
pardon or release from confinement on any basis except as
specifically authorized by § 31–233, subsection A or B until
the sentence imposed by the court has been served or
commuted. . . . [providing range of sentences for first-time
and repeat offenders].
¶8 Both parties argue that the plain meaning of these
provisions supports their views. Kraps asserts that “minor”
commonly means a person under age eighteen, and subsections (D)
and (G) therefore do not apply when an adult police officer poses as
a minor. The State counters that because a defendant can be
convicted under § 13-3212(B)(2) when the “minor” is actually an
undercover peace officer, the term “minor” in subsections (D) and
(G) means a person under age eighteen or a peace officer, or someone
assisting a peace officer, posing as a minor. Both interpretations are
reasonable, and we therefore consider secondary principles of
interpretation as well as the statutory language to identify legislative
intent.
¶9 Unless a statute’s context requires another definition,
“minor” “means a person under the age of eighteen years.” A.R.S.
§ 1-215(22). Considering § 13-3212’s history and reading the statute
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STATE EX REL. POLK V. CAMPBELL (KRAPS)
Opinion of the Court
in its entirety convinces us that the legislature intended to use a
different definition of “minor” in § 13-3212(D) and (G).
¶10 Before 2010, § 13-3212(A) provided that a person
commits child prostitution, among other ways, by “[e]ngaging in
prostitution with a minor,” and designated child prostitution a class
2 felony. A.R.S. § 13-3212(A)(8), (D) (2010). In 2010, the legislature
deleted the above-quoted language and substituted subsection (B),
which delineates three ways a person engages in child prostitution:
B. A person who is at least eighteen years of age
commits child prostitution by knowingly:
1. Engaging in prostitution with a minor under fifteen
years of age.
2. Engaging in prostitution with a minor who the
person knows is fifteen, sixteen or seventeen years of
age.
3. Engaging in prostitution with a minor who is fifteen,
sixteen, or seventeen years of age.
Id. (Supp. 2010); 2010 Ariz. Sess. Laws, ch. 255, § 6 (2d Reg. Sess.).
The legislature also enacted separate sentencing provisions, and
specified different felony classifications, that depended on how the
offender committed child prostitution and whether the minor
involved was older or younger than fifteen. A.R.S. § 13-3212(D)–(G)
(Supp. 2010). It provided harsher sentences and more serious felony
classifications for offenders convicted of violating subsections (A),
(B)(1), and (B)(2) than for those persons convicted of violating
subsection (B)(3). Id. Notably, the legislature simultaneously
enacted subsection (C) to permit convictions under subsections (A),
(B)(1), and (B)(2) when the “minor” involved was actually a peace
officer posing as a minor or a person assisting a peace officer by
posing as a minor. Id. (Supp. 2010). In 2011, the legislature enacted
subsection (D) to require consecutive sentences for convictions
under subsections (A) and (B)(2) involving a minor aged fifteen,
sixteen, or seventeen. Id. (Supp. 2011).
¶11 The 2010 and 2011 amendments to § 13-3212
demonstrate that the legislature intended to punish most harshly
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STATE EX REL. POLK V. CAMPBELL (KRAPS)
Opinion of the Court
offenders who engage in prostitution with a minor under age fifteen,
regardless of the offender’s knowledge of the minor’s age, and those
who engage in prostitution with a minor who the offender knows or
believes is fifteen, sixteen, or seventeen years old. Because the
legislature simultaneously provided that it is no defense to these
offenses that the “minor” is a peace officer posing as a minor, and it
did not separately provide a sentencing provision or a felony
classification for a person convicted of engaging in child prostitution
with an undercover officer, it follows that the legislature intended
that the sentencing provisions set forth in subsections (D) and (G)
apply to such offenders. Indeed, the 2010 Arizona Bill Summary
transmitted to the Governor applied what is now subsection (G) to
the (B)(2) offense, without exception, by characterizing the offense as
“a Class 2 felony punishable by a presumptive 10.5 year prison term
for a first offense.”
¶12 In arguing that the sentencing enhancements should
not apply in cases in which undercover officers have posed as
minors, Kraps urges us to “apply the ordinary rules of grammar” to
“shift the first dependent clause of subsection (G) to where it
logically and grammatically belongs, and to insert the connector
‘and.’” So reconstructed, the statute would provide a class 2 felony
designation for all (B)(2) offenses before requiring enhanced
sentences for offenses involving minors aged fifteen, sixteen, or
seventeen. This would cause the provision to read: “Child
prostitution pursuant to subsection A and B, paragraph 2 of this
section is a class 2 felony, and, if the minor is fifteen, sixteen or
seventeen years of age, [the enhancements apply].” We decline to
effectively, if not actually, rewrite § 13-3212(G), as that is the
legislature’s prerogative, not ours. Cf. Lewis v. Debord, 238 Ariz. 28,
31 ¶ 11, 356 P.3d 314, 317 (2015) (“It is not the function of the courts
to rewrite statutes.”).
¶13 The legislature’s intention to apply subsection (G) to
offenders whose convictions arise from police “sting” operations is
additionally evidenced by considering the consequences of not
doing so. Subsection (G) provides that child prostitution committed
pursuant to subsection (B)(2) is a class 2 felony and prescribes
punishment. Section 13-3212 nowhere identifies a different sentence
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STATE EX REL. POLK V. CAMPBELL (KRAPS)
Opinion of the Court
for violations of (B)(2) involving adult peace officers posing as
minors. It is implausible to infer that the legislature intended to
exclude such violations from (G) while not otherwise identifying
their punishment, particularly when the legislature was careful to
specify in § 13-3212 the penalties for child prostitution depending on
the manner in which it was committed. Cf. A.R.S. § 13-602(A)–(C)
(stating that the legislature designates Title 13 offenses as either a
felony, a misdemeanor, or a petty offense).
¶14 To further support his interpretation of subsection (G),
Kraps asks us to follow the court of appeals’ decisions in State v.
Regenold, 227 Ariz. 224, 255 P.3d 1028 (App. 2011) and State v.
Villegas, 227 Ariz. 344, 258 P.3d 162 (App. 2011), which interpreted
different versions of the sentencing provision in § 13-3554, the child
luring statute. Under both versions, § 13-3554(C) provided that
“[l]uring a minor for sexual exploitation is a class 3 felony, and if the
minor is under fifteen years of age it is punishable” under the
Dangerous Crimes Against Children Act (“DCACA”), which is now
codified at § 13-705. Under the statute in effect in Regenold, it was
not a defense that the other person was a peace officer posing as a
minor. A.R.S. § 13-3554(B) (Supp. 2007). Under the version in effect
in Villegas, it was not a defense that the other person was not actually
a minor. A.R.S. § 13-3554(B). Nevertheless, Regenold and Villegas
held that the DCACA’s enhanced sentencing provisions do not
apply unless the luring victim is a person who is actually under age
fifteen. Regenold, 227 Ariz. at 225 ¶ 1, 255 P.3d at 1029; Villegas, 227
Ariz. at 345 ¶ 3, 258 P.3d at 163.
¶15 Even assuming Regenold and Villegas were correctly
decided, we are not persuaded to reach a similar conclusion here
because the luring and child prostitution statutes are materially
different. First, unlike § 13-3212(G), § 13-3554(C) provides a felony
classification for all luring offenses before requiring enhanced
sentences for offenses committed against minors under fifteen.
Thus, luring an undercover peace officer posing as a minor is not
rendered an unclassified offense without punishment under the
court of appeals’ interpretation. Second, the decisions relied on the
meaning of “minor” in the DCACA, which is not triggered by § 13-
3212(G). See Regenold, 227 Ariz. at 226 ¶¶ 5–6, 255 P.3d at 1030
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STATE EX REL. POLK V. CAMPBELL (KRAPS)
Opinion of the Court
(reasoning that the reference to the DCACA showed the legislature’s
intent that the minor in the sentencing provision refers to an actual
child); Villegas, 227 Ariz. at 345 ¶ 3, 258 P.3d at 163 (“[A] dangerous
crime against a child is a crime against a child qua child”) (quoting
State v. Williams, 175 Ariz. 98, 101, 854 P.2d 131, 134 (1993)).
¶16 Kraps also argues that the interpretation of § 13-
3212(G) we adopt is absurd because a (B)(2) offender who engaged
in prostitution with an officer posing as a fifteen, sixteen, or
seventeen year old would receive a harsher sentence than a (B)(1)
offender who engaged in prostitution with an officer posing as a
minor under fifteen years of age. We disagree. Subsection (F)
provides that a (B)(1) offense is a class 2 felony and is punishable
under the DCACA, which provides harsher sentences than those in
subsection (G). Compare A.R.S. § 13-705(C) with § 13-3212(G).
Kraps’s interpretation of subsection (F) as applying only when actual
minors are involved depends on the analysis in Regenold and Villegas,
which we find distinguishable.
¶17 We hold that “minor,” as used in A.R.S. § 13-3212(D)
and (G) means a person who is fifteen, sixteen, or seventeen years of
age, a peace officer posing as a minor aged fifteen to seventeen years,
or someone assisting a peace officer by posing as a minor aged fifteen
to seventeen years. Given the importance of providing clear notice
of the consequences for criminal conduct, we urge the legislature to
be as explicit as possible in specifying criminal penalties. Cf. A.R.S.
§ 13-101(2)(declaring the public policy of this state is “[t]o give fair
warning of the nature of the conduct proscribed and of the sentences
authorized upon conviction.”).
CONCLUSION
¶18 We vacate the court of appeals’ opinion and reverse
the trial court’s order.
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