State v. Mofid

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24. IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Respondent, ) ) ) v. ) ) VAHID MOFID, ) ) Petitioner. ) ) __________________________________) DIVISION ONE FILED: 03/20/2012 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 11-0761 PRPC DEPARTMENT B Maricopa County Superior Court No. CR2010-135505-001 DECISION ORDER Petitioner Vahid Mofid ( Mofid ) petitions this Court for review from the dismissal of his petition for post-conviction relief. Presiding Judge Diane M. Johnsen and Judges Donn Kessler and Lawrence F. Winthrop have considered this petition for review and, for the reasons stated, grant review of the petition and grant relief in part. The State charged Mofid with five counts prostitution and one count of influencing a witness. of child Each count of child prostitution alleged Mofid knowingly used a minor for purposes of prostitution. 3212(A)(2) (2008) (a See Ariz. Rev. Stat. ( A.R.S. ) § 13- person commits child prostitution by knowingly using a minor for purposes of prostitution). Mofid eventually child pled guilty to two 1 counts of attempted prostitution pursuant to a plea agreement. The trial court suspended sentence and placed Mofid on two concurrent terms of five years' probation. The trial court also ordered that Mofid register as a sex offender. Mofid filed a timely of-right petition for post- conviction relief in which, among other issues, he argued the factual basis convictions. for his While plea was neither insufficient the plea to support agreement nor his the sentencing minute entry identified the specific subsection of A.R.S. § concede 13-3212 that for based which on the Mofid was indictment convicted, and the the parties factual basis offered at the change of plea hearing, the only two applicable subsections are (A)(2) and (A)(8). As noted above, A.R.S. § 13- 3212(A)(2) prohibits a person from knowingly using a minor for purposes of prostitution. Section 13-3212(A)(8) prohibits a person from knowingly engaging in prostitution with a minor. In his petition for post-conviction relief, Mofid argued the factual basis for the pleas offered at the change of plea hearing was insufficient to support his convictions attempted child prostitution under either subsection. for At the change of plea hearing in which he pled guilty to attempting to engage in prostitution with a minor, counsel offered the factual basis that Mofid engaged or attempted to engage in acts of prostitution with a minorï£§ostensibly 2 the offense defined in subsection (A)(8). Mofid argued in his petition for post- conviction relief that this factual basis was insufficient to support a conviction pursuant to subsection (A)(2) because using a minor for the purposes of prostitution is not the same thing as engaging in an act of prostitution with a minor. Regarding subsection (A)(8), while Mofid admitted at the change of plea hearing that he engaged or attempted to engage in acts of prostitution with a minor, he steadfastly denied he knew the victim was under the age of eighteen. Mofid argued in his petition for post-conviction relief that this factual basis was insufficient to support a conviction pursuant to subsection (A)(8) because it is a defense to a prosecution pursuant to subsection (A)(8) if the victim was sixteen years of age and the defendant could not reasonably have known the age of the victim. A.R.S. § 13-3213 (2007). In this case, the victim was sixteen. The trial court summarily dismissed the petition for postconviction relief. presented in his While the court addressed other issues Mofid petition, the court failed to address the sufficiency of the factual basis to support the convictions in light of the defense under A.R.S. § 13-3213. review. Mofid now seeks The State concedes error on this issue for the reasons stated in the petition for review. We grant relief on this issue. 13-3212(A)(2), as the State In the context of A.R.S. § concedes 3 in its response to the petition for review, there was an insufficient factual basis for the conviction at the time of the change of plea hearing. The evidence did not support that Mofid attempted to use a minor for purposes of prostitution; it only established he attempted to engage in prostitution with a minor. These are not the same thing. In the context of A.R.S. § 13-3212(A)(8), at the change of plea hearing Mofid admitted he engaged or attempted to engage in prostitution with a minor, but denied he knew the minor s age. The State never alleged Mofid knew or could reasonably have known her age and offered no evidence to show he could have reasonably known her age. If the victim was sixteen years old and Mofid could not reasonably have known her age, he could not be convicted of attempted child prostitution pursuant to A.R.S. § 13-3212(A)(8). See A.R.S. § 13-3213 (making it a defense to section 13-3212(A)(8) if the defendant engaged in prostitution with a sixteen-year-old and at the time of the offense the defendant could not reasonably have known the age of the minor ). Finally, the extended record does not establish a factual basis to support either conviction. See State v. Sodders, 130 Ariz. 23, 25, 633 P.2d 432, 434 (App. 1981) (factual basis for a plea may be ascertained from the extended record). Therefore, the factual basis for the pleas was insufficient to support a 4 conviction for either count of attempted child prostitution, whether pursuant to subsection (A)(2) or subsection (A)(8). 1 An insufficient factual basis to support a conviction based on a plea of guilty is fundamental error. State v. Emerson, 171 Ariz. 569, 570, 832 P.2d 222, 223 (App. 1992). We grant Mofid s motion to expedite and grant review of his petition for review. Because there was an Mofid s convictions insufficient for factual attempted child basis to support prostitution under either A.R.S. § 13-3212(A)(2) or subsection (A)(8), we grant relief on dismissed this that issue, charges decision and order. vacate remand We his for deny convictions, proceedings relief on reinstate consistent all other the with issues presented in the petition for review. /S/ DONN KESSLER, Judge 1 Because we find the factual basis was insufficient on these specific grounds, we need not address Mofid s arguments regarding whether a conviction for child prostitution also requires that the defendant knew the victim was a minor. 5

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