How does felony sentencing work in Arizona?
Arizona follows a mandatory sentencing scheme.
This means that the sentence a judge hands out must be withing a certain range depending on certain factors.
Or you can look at the helpful PDF version that can be found from the Criminal Code Sentencing Provisions.
This is the most updated version of the ranges and associated penalties in Arizona; effective August 9, 2017.
A picture of the main sentencing chart is found below.
What do all of the categories and sub-categories mean in felony sentencing?
There are just a few breakdowns when looking at the chart.
First, when we are looking at the non-dangerous offense you see the chart in blue.
This is the sentencing categories for someone who has never had a felony conviction (no matter how old) in their life.
This means that for every single one of those categories, probation is available.
Prison is also an option for a judge, but it is not mandatory.
Within this category, the judge has the most discretion over a sentence than in any other category.
The “P” in the middle of the chart stands for presumptive term.
At a sentencing, a judge would start with the presumptive terms and move the sentence up or down depending upon mitigation or aggravation.
Those terms are listed to the left and right of the presumptive term.
- MIT = mitigated;
- MIN = minimum;
- MAX = maximum; and
- AGG = aggravated.
The * on the mitigated and aggravated relates back to the statute that allows a judge to find enough circumstances to find either the mitigated or the aggravated.
What are the circumstances that allow a Judge to find either aggravated or mitigated sentences in Felony Sentencing?
The circumstances or factors that allow a judge to find for a mitigated or aggravated sentence are listed under A.R.S. 701(e) and A.R.S. 701(d) respectively. The aggravating factors include:
- Infliction or threatened infliction of serious physical injury.
- Use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime.
- If the offense involves the taking of or damage to property, the value of the property taken or damaged.
- Presence of an accomplice.
- Especially heinous, cruel or depraved manner in which the offense was committed.
- The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.
- The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.
- At the time of the commission of the offense, the defendant was a public servant and the offense involved conduct directly related to the defendant’s office or employment.
- The victim or, if the victim has died as a result of the conduct of the defendant, the victim’s immediate family suffered physical, emotional or financial harm.
- During the course of the commission of the offense, the death of an unborn child at any stage of its development occurred.
- The defendant was previously convicted of a felony within the ten years immediately preceding the date of the offense. A conviction outside the jurisdiction of this state for an offense that if committed in this state would be punishable as a felony is a felony conviction for the purposes of this paragraph.
- The defendant was wearing body armor as defined in section 13-3116.
- The victim of the offense is at least sixty-five years of age or is a person with a disability as defined in section 38-492, subsection B.
- The defendant was appointed pursuant to title 14 as a fiduciary and the offense involved conduct directly related to the defendant’s duties to the victim as fiduciary.
- Evidence that the defendant committed the crime out of malice toward a victim because of the victim’s identity in a group listed in section 41-1750, subsection A, paragraph 3 or because of the defendant’s perception of the victim’s identity in a group listed in section 41-1750, subsection A, paragraph 3. (Hate crimes)
- The defendant was convicted of a violation of section 13-1102, section 13-1103, section 13-1104, subsection A, paragraph 3 or section 13-1204, subsection A, paragraph 1 or 2 arising from an act that was committed while driving a motor vehicle and the defendant’s alcohol concentration at the time of committing the offense was 0.15 or more. For the purposes of this paragraph, “alcohol concentration” has the same meaning prescribed in section 28-101.
- Lying in wait for the victim or ambushing the victim during the commission of any felony.
- The offense was committed in the presence of a child and any of the circumstances exists that are set forth in section 13-3601, subsection A. “Domestic Violence” category.
- The offense was committed in retaliation for a victim either reporting criminal activity or being involved in an organization, other than a law enforcement agency, that is established for the purpose of reporting or preventing criminal activity.
- The defendant was impersonating a peace officer as defined in section 1-215.
- The defendant was in violation of 8 United States Code section 1323, 1324, 1325, 1326 or 1328 at the time of the commission of the offense.
- The defendant used a remote stun gun or an authorized remote stun gun in the commission of the offense.
- During or immediately following the commission of the offense, the defendant committed a violation of section 28-661, 28-662 or 28-663 (Hit and Run offenses).
- The defendant was convicted of a violation of section 13-1307 or 13-1308 or section 13-3212, subsection A, paragraph 9 or 10 and the defendant recruited, enticed or obtained the victim from a shelter that is designed to serve runaway youth, foster children, homeless persons or victims of human trafficking, domestic violence or sexual assault. (Sex trafficking and related offenses).
- The defendant was convicted of a violation of section 13-1204 and there is evidence that the defendant committed the crime out of malice toward a victim because of the victim’s employment as a peace officer.
- Any other factor that the state alleges is relevant to the defendant’s character or background or to the nature or circumstances of the crime.
The mitigating factors include:
- The age of the defendant.
- The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.
- The defendant was under unusual or substantial duress, although not to a degree that would constitute a defense to prosecution.
- The degree of the defendant’s participation in the crime was minor, although not so minor as to constitute a defense to prosecution.
- During or immediately following the commission of the offense, the defendant complied with all duties imposed under sections 28-661, 28-662 and 28-663.
- Any other factor that is relevant to the defendant’s character or background or to the nature or circumstances of the crime and that the court finds to be mitigating.
As you can see, the last two in each category are “catch-all” factors and will allow the prosecutor or your attorney to argue any other relevant factor.
You might also notice that there are MANY more aggravating factors for the prosecutors to choose from than for defense to choose from.
In order to find an aggravating or mitigating sentence, a judge must find two or more of those factors to be able to reduce, or enhance, to the absolute mitigate and aggravated sentence.
For a judge to go to the minimum or maximum she would only need to find one of those listed factors.
How will I know what the Aggravating factors are against me in Felony Sentencing?
The State has to file a motion alleging the aggravating factors against you.
This usually happens early on in the stages of a case and prior to felony sentencing.
If you go to trial and are unsuccessful, the State must also prove beyond a reasonable doubt, the aggravating factors that were alleged against you to the jury.
If the State fails to meet their burden and the jury does not find aggravating factors, then the judge cannot find an aggravating sentence against you.
Another important note is that the State cannot double dip on Aggravating factors.
For example, if you are charged with Aggravated Assault, the underlying charge may include the infliction of serious physical injury.
Therefore, the State cannot argue that serious physical injury is an aggravating factor because it was a necessary element of the underlying charge.