Archive for Felony

Jun
02

The Court Tower Project and Thomas’ misguided investigation

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Judge Donahoe’s attorney recounted the genesis of prosecutor Thomas’ retaliation against Judge Donahoe:

Thomas,  incensed by what he  considered  to  be  a usurpation of his  power,  not to  mention  the  cuts  to  his  budget,  both  real  and  threatened  by  the  BOS,  enlisted Arpaio and the  two  targeted a County project – they urged the BOS  to  scrap plans for the  long-planned  and  saved-for $347 million Downtown Court Tower.  This  project had  been  in  the  planning  stages  for  12  years;  money  had  been  put  aside  for  its construction  over  that  time,  and  the  BOS  refused  to  scrap  the  project.  Thomas  and Arpaio responded by launching a criminal investigation into  the BOS’ approval of  the Court Tower and Thomas  issued an astoundingly  broad grand jury subpoena seeking years worth of information about  the  project  from  the County.  The BOS  hired Tom Irvine  to  represent  its  interests.  He  moved  to  quash  the  subpoena  largely  on  the grounds  that  Thomas  had  conflicts  in  investigating  the  BOS regarding  the  Court Tower after  he  had  given  it  advice  on  the  same  topic.  In  true Alice  in  Wonderland fashion,  Thomas  then  announced  that  Irvine,  too,  was  now  part  of their  criminal investigation.

Judge  Donahoe,  as  Presiding  Criminal  Judge,  heard  the  matter  and  in February  2009  ruled  that Thomas  had  a  conflict  in  his  dealings with  the County  in that  he was  now  criminally  investigating a client  (the County and BOS)  that  he  had previously  given  legal  advice  to  on  the  same  topic.  Judge  Donahoe  disqualified Thomas,  quashed  the  Subpoena Duces Tecum, denied Thomas’ motion  to  disqualify Irvine, and his motion to assign the matter to  an out-of-county  judge. One month  later, Judge Donahoe denied Thomas’ request  that Stapley be held in  criminal  contempt of court  for  disclosing  information  relating  to  a  grand jury by sharing the Judge’s February 2009 ruling (which he  learned of  through his position as Supervisor)  with  his  criminal  defense  attorney  in  the  case  brought  against  him by Thomas.  Judge Donahoe declined  to  hold Stapley  in  contempt,  finding  that his  right to  counsel  in  the  criminal matter  trumped  any  secrecy  that  should  be  accorded  that ruling.  He also granted the BOS’ request to allow the ruling to be made public.

In  a  motion  for  reconsideration,  Thomas  alleged  for  the  first  time  that  a conflict existed  that  required  Judge Donahoe  to  disqualify himself.  He claimed  that the BOS’  lawyers, Tom  Irvine  and Ed Novak,  also  represented  the  Superior Court  in matters  involving  the  Court  Tower  and  that  Judge  Donahoe  should  have  disclosed that conflict and disqualified himself.  Judge Donahoe rightly denied the motion for a number of  reasons:  as  an employee of  the State, he  had no  conflict with the County’s project;  he  did  not  know,  before  the motion  for  reconsideration,  that Mr.  Irvine  and Mr. Novak  had  any  involvement with  the Court Tower;  he  knew  that Mr.  Irvine did not  represent  him  or  his  employer  in  the  Court  Tower matter;  he  had  and  has  no interest  in  or  involvement  with  the  Court  Tower  project  and  played  no  role  in  its design,  construction, or  funding,  nor had  he  ever discussed any aspect of  the project with Mr.  Irvine or Mr. Novak outside  any  court  hearing.  Thomas challenged Judge Donahoe’s  ruling  in  first  the  Court  of Appeals  and  later  the  Supreme Court.  Both declined to review the ruling.

If you have been wrongfully accused of a crime, contact Phoenix Criminal Lawyer Joshua S. Davidsontoday for a confidential consultation.

Categories : Politics
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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
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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