A man convicted of possession of child pornography in 2013 must be released from prison in 2029, because the Maricopa County Attorney’s Office failed to realize in time that the sentence should have run longer, the Arizona Court of Appeals ruled last week.
Bradley Crain pleaded guilty to three counts of attempted sexual exploitation of a minor stemming from child pornography found in his possession the year before. The offenses were designated as dangerous crimes against children due to the age of the minors depicted in the images discovered in 2012.
Crain, 53, was ordered to serve a seven-year prison term for one count followed by lifetime probation for the other two felonies. He was released from prison in May 2019 to begin his probation, but in May 2021 his probation officer accused Crain of violating the conditions of his probation on the two counts.
The probation department petitioned the court to revoke Crain’s probation and send him to prison. Crain admitted to the violations, and in June 2021 a Maricopa County judge imposed prison terms of 10 years for each of the two counts.
The judge ordered those terms be served concurrently (at the same time) which puts Crain’s release date in mid-2029 with credit for time served. But under state law, the 10-year terms should be served consecutively (back-to-back). That made Crain’s sentence illegally lenient.
The Maricopa County Attorney’s Office, acting on behalf of the State of Arizona, had 20 days to challenge the June 2021 sentencing order. Instead, court records show the necessary motion was not filed until 59 days after sentencing.
The motion was denied, with Judge Roger Hartsell ruling the Maricopa County Attorney’s Office missed the long-established statutory deadline. The county attorney’s office then appealed, renewing its illegal sentence argument.
In addition, the appeal sought to force the sentencing correction through a different state law which has a 60-day deadline to challenge any order affecting the State’s substantial rights.
The unanimous June 9 opinion written by Judge Randall M. Howe on behalf of the Arizona Court of Appeals shows the judges were not moved by the arguments from the Maricopa County Attorney’s Office.
“The State may be correct that Crain’s sentence is illegal,” Howe wrote. “We cannot, however, correct illegally lenient sentences absent proper appeals or cross-appeals.”
The opinion added, “If the State wishes to challenge an illegally lenient sentence, as it wished to do here, it should have appealed within 20 days of sentencing.”
