OGDEN -- The Utah Supreme Court has decided a local man was wrongly convicted and has ordered his case back to 2nd District Court here for resentencing.
The high court's decision decides a seemingly semantic debate on whether solicitation of sodomy of a child is the same as attempted sodomy of a child, ruling that it isn't. Both carry prison terms.
Lonnie Arave, 52, of Washington Terrace, has been serving a five-years-to-life prison term on his 2006 conviction for attempted sodomy of a child. He approached an 11-year-old boy and offered him $20 if he would allow him to perform the sexual act upon him.
At his trial in fall 2006, defense counsel moved to dismiss the case, arguing "solicitation could not sustain a conviction of attempt," according to the decision. The judge in the case, the now-retired Roger Dutson, denied the motion during the trial, a decision upheld since by the Utah Court of Appeals.
The supreme court, in its Dec. 30 order, reverses those rulings, somewhat, disagreeing with those decisions yet not dismissing the case.
"The prosecution had argued at trial that solicitation is a substantial step toward attempting the crime," explained Randy Richards, the attorney who wrote, with his daughter and law partner Brittany R. Brown, the successful appeal. "But the statute has no definition at all of what constitutes a substantial step."
The high court's ruling concludes with the language that the case is "remanded to the trial court for further proceedings consistent with this opinion."
Richards said he and prosecutors have agreed that means resentencing Arave on the lesser charge rejected by the jury in 2006 of solicitation of sodomy of a child, a second-degree felony at the time. It carries a one-to-15-year prison term.
A hearing will be scheduled in 2nd District Court in the future to enter a conviction on the solicitation charge into the record, he said, and drop the attempted sodomy conviction, a first-degree felony, and the five-to-life sentence.
Richards said he will argue for Arave's release on credit for time served, because a one-to-15-year term typically brings five years in prison, which Arave has already served.