Archive for Criminal Procedure

May
06

Sentencing in Arizona Criminal Cases

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The trial court is the decision-maker in determining the appropriate sentence. (In some states the jury imposes the sentence.) The options available to the trial court include imprisonment, or various types of probation. The trial court is bound by the sentencing guidelines passed by the state legislature. The legislature has determined that certain offenses warrant a more stringent sentence. Some of those offenses include drug offenses, crimes committed with a deadly weapon or a dangerous instrument, crimes against children, crimes committed while on release (probation, out of custody, parole), and crimes committed by repeat offenders. For example, a defendant found guilty of a dangerous crime against children in the first degree (e.g. crimes of violence, sexual conduct and sexual abuse, commercial sexual exploitation of a minor, and kidnapping) “shall be sentenced to a presumptive term of imprisonment for 20 years.” A.R.S. §
13-604.01(A).

Also, a defendant who commits an offense while released on bail or on the defendant’s own recognizance “shall be sentenced to a term of imprisonment 2 years longer than would otherwise be imposed.” A.R.S. § 13-604(R).

The trial court has the discretion to sentence a defendant to a term of imprisonment within the statutory guidelines. A.R.S. § 13-702-10. The sentence ranges includes a mitigated, presumptive, and aggravated term of imprisonment. Felonies range from a class 2 felony to a class 6 felony. A class 2 felony is the most serious offense other than first-degree murder. A class 6 felony is the least serious felony. The sentencing range for felonies increases with the seriousness of the offense.Prior to imposing sentence, the trial court must consider the aggravating circumstances presented by the state and the mitigating circumstances presented by the defendant. The trial court also considers the probation officer’s recommendation and the victim’s statement.

The trial court is not required to accept the aggravating and mitigating circumstances at face value. Rather, the trial court has the discretion to evaluate the relevance and credibility of evidence. For example, often times the defendant will express remorse of their offense. The trial court determines whether a defendant’s expression of remorse is genuine. In some cases the trial court finds that the defendant is only remorseful for getting caught and facing a prison term. Additionally, in capital cases, the Arizona Supreme Court has consistently rejected a defendant’s claim in mitigation that they were raised in an abusive childhood, finding that, “The remedy for one who has been molested is not to molest others and ask to be excused, but rather to submit to therapy, which, as noted above, defendant has repeatedly refused to do.” State v. Atwood, 171 Ariz. 576, 655, 832 P.2d 593, 679 (1992).

If the defendant is convicted of a probation eligible offense, the trial court may suspend the imposition of a prison sentence and impose probation. There are many types of probation including intensive probation (A.R.S. § 13-913), supervised probation, and unsupervised probation. A.R.S. § 901. In all types of probation, the trial court has the discretion to sentence the defendant to serve 1 year in jail. Intensive probation has very strict requirements, including that the defendant must contact his/her probation officer on a weekly basis, must be employed, actively seeking employment, or in school. The length of probation ranges from 7 years for a class 2 felony, to 3 years for a class 5 or 6 felony. A.R.S. § 13-902(A). These periods of probation may be shortened or lengthened by the trial court. Additionally, the trial court has the discretion to impose lifetime probation for defendants who are convicted of sexual offenses, sexual exploitation of children, and child or vulnerable adult abuse.

The trial court also has the option at sentencing to classify a class 6 felony as an “open-ended offense” or an “undesignated offense.” Following the defendant’s successful completion of probation, the trial court has the discretion to designate the offense as a misdemeanor. This provides further incentive for the defendant to comply with probation. A class 6 undesignated felony offense is considered a felony for all purposes until the trial court makes a final designation.

Following a sentence of imprisonment, the defendant has 30 days to file a notice of appeal in the Arizona Court of Appeals. The defendant is entitled to legal representation on appeal. If the defendant is unsuccessful in his/her direct appeal, he/she can file a petition for review in the Arizona Supreme Court. The Arizona Supreme Court has discretionary review of petitions for review and accepts only 10% of the petitions filed.

Arizona State Board of Nursing guidelines for sexual misconduct and boundary violation cases

Categories : Criminal Law
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May
06

Criminal Trials and Guilty Pleas

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A criminal case may be resolved either by a guilty verdict following trial or by the entry of a guilty (or no contest) plea. Both result in a criminal conviction.

A defendant who proceeds to trial is entitled to representation if he/she is unable to afford an attorney. As in civil cases, the defendant makes all the substantive decisions about the case after receiving advice from defense counsel. The criminal case then proceeds to discovery. The criminal discovery rules are very liberal. There is no trial by ambush in Arizona; both parties have a duty to disclose prior to trial. The trial court has broad discretion to sanction parties who fail to timely disclose witnesses or required discoverable material. Following discovery, the state might offer the defendant a plea. In the event of a plea offer, the negotiations can be extensive and time consuming.

If the defendant proceeds to trial, the state is bound by strict time deadlines. The rules of
evidence apply in a criminal trial, unlike in an administrative hearing. The state has the burden of proving each element of a criminal offense beyond a reasonable doubt. This is the highest standard of proof (much higher than the preponderance of the evidence standard applied in administrative hearings). The defendant is not required to testify and the jurors are instructed that they cannot consider the defendant’s silence in deciding the case. The defendant is entitled to an 8-person jury when the possible sentence is under 30 years. The defendant is entitled to a 12-person jury for capital offenses and cases that carry a possible sentence of 30 years or more. The jury verdict must be unanimous to either convict or acquit the defendant. If the jury is “hung”, the state can retry the defendant.

A defendant who enters a guilty or no contest plea is afforded significant constitutional
protections under the United States and Arizona Constitutions. These protections are codified in the Arizona statutes and in the Rules of Criminal Procedure. The trial court is required to advise a defendant of his or her rights and the consequences of pleading guilty or no contest. Rule 17.2. Ariz. R. Crim. P. The trial court must determine whether the defendant knowingly, voluntarily and intelligently entered the plea. The defendant is questioned in detail, on the record, in the trial court regarding whether any force, threats, or promises were made to induce the plea. The defendant must also provide the trial court with the “factual basis” for the plea; meaning the defendant must admit that he/she committed the elements of the offense. The failure of the trial court to follow the rules of criminal procedure may be grounds for setting aside the plea. The Arizona Supreme Court has rejected a defendant’s later claim that he pled guilty, but did not mean what he had avowed to the court, because accepting the claim would in effect mean that the trial court condoned perjury.

Arizona State Board of Nursing guidelines for sexual misconduct and boundary violation cases

Categories : Criminal Law
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May
05

How felony charges are filed in Arizona

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Many clients often express confusion regarding the process by which felony cases are brought to court in Arizona.  I recently encountered the following article entitled guidelines for sexual misconduct and boundary violation cases (Arizona Board of Nursing) which provides a good explanation.

A criminal case is charged by either the grand jury or a criminal complaint. If a case is charged
by the grand jury, the prosecutor presents evidence to the grand jurors. The grand jury issues a
“true bill,” indicating that a crime has been committed and the defendant is the perpetrator. The
grand jury proceedings remain secret until the “true bill”/indictment is issued. The grand jury
indictment is then filed in superior court and is contained in the defendant’s court file.

The state may file a criminal complaint. The complaint is filed under oath by a peace officer
alleging the offense. Complaints are usually filed in city court.

After the offense is charged, the defendant is then serviced with a criminal summons to appear in
court. A summons is the preferred method as opposed to an arrest warrant. Rule 3.1(b), Ariz. R.
Crim. P. If the defendant fails to honor the summons, the trial court issues a warrant for the
defendant’s arrest.

The defendant makes an initial appearance before a magistrate. Rule 4.2, Ariz. R. Crim. P. If
the defendant fails to honor the summons, the trial court issues a warrant for the defendant’s
arrest.

The defendant makes an initial appearance before a magistrate. Rule 4.2, Ariz. R. Crim. P. The
magistrate informs the defendant of the charges against him/her, determines the defendant’s
release, and appoints counsel if the defendant is eligible. A defendant who is charged by
complaint is entitled to a preliminary hearing for a determination of probable cause. Rules 4.2
and 5.2, Ariz. R. Crim. P. The defendant charged by indictment is not entitled to a preliminary
hearing because the grand jurors made a finding of probable cause prior to their issuance of the
“true bill.”

Categories : Criminal Law
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The Arizona Defense Law Blog is published by Phoenix DUI and criminal defense attorney Joshua S. Davidson. Nothing on this website is intended to create an Attorney-Client relationship and the information provided herein is for general information purposes only.

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