SENTENCE MODIFICATION



SENTENCE MITIGATION

Crimes are frequently committed under “mitigating” circumstances which do not justify or excuse the offense, but go a long way to explain the defendant’s behavior or to provide an understanding for why he or she may have ended up committing the particular offense. For example, when a starving man steals bread to satisfy his hunger, this circumstance is taken into consideration in mitigation of his sentence.

In Arizona, courts are required to take into consideration several statutorily identified mitigating factors, including:
1.
 		The age of the defendant.
2. 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.
3. The defendant was under unusual or substantial duress, although not such as to constitute a defense to prosecution.
4. The degree of the defendant’s participation in the crime was minor, although not so minor as to constitute a defense to prosecution.
5. Any other factor that the court deems appropriate to the ends of justice.

Additionally, Arizona courts have recognized numerous nonstatutory mitigating factors including:

•
 		Remorse – State v. Spears, 184 Ariz. 277 293, 904 P.2d 1062 cert. denied 519 U.S. 567 (1996).
• Love of family/concern for parents – Id.
• Lack of criminal history - Id. at 293; State v. Doerr, 193 Ariz. 56, 70, 969 P.2d 1168, 1182 (Ariz. 1998)
• Employment history – Id. at 294.
• Low intelligence – State v. Kayer, 194 Ariz. 423, 434, 984 P.2d 31 (Ariz. 1999).
• Prior military service – Id.
• Disparity between sentences – as between co-defendants – Id.; State v. Carlson, 202 Ariz. 570, 586, 48 P.3d 1180 (Ariz. 2002).
• Aberrant behavior - U.S. V. Colace, 126 F. 3d 1229 (9th Cir. 1997).
• Prior sexual or emotional abuse - State v. Miller, 186 Ariz. 314, 326, 921 P.2d 1151 (Ariz. 1996).

An experienced defense attorney will attempt to persuade the prosecuting attorney and court through the presentation of evidence of mitigating circumstances that a lenient sentence is appropriate based upon the defendant’s unique background and circumstances. The most persuasive manner in obtaining this objective is to present a thorough, thoughtful, and competent mitigation packet to the prosecuting attorney and court.

In those cases where the preliminary review of the evidence suggests the defendant may ultimately be convicted, the attorney should immediately start thinking about collecting mitigation evidence. Many defense attorneys minimize the importance of mitigation evidence early in their representation. However, in many cases there is nothing more important. Because the collection of mitigation evidence, through interviews and record searches, is both time consuming and often requires special knowledge and expertise, attorneys often retain an experienced mitigation specialist to join the defense team.

A mitigation specialist is an expert qualified by knowledge, skill, experience, and training as a criminal justice, mental health or sociology professional. Their experience is to investigate, evaluate, and present factual, psychological and other mitigating circumstances to persuade the court that for this particular defendant, a certain sentence may be unduly harsh and, thus, inappropriate.

Mitigation evidence necessary for a proper and thorough mitigation packet (or penalty presentation) can be voluminous. The mitigation evidence is in effect a collection of the defendant’s and his or her family’s life history. This evidence should consist of information, documentation, and public records pertaining to relevant aspects of the defendant’s social, educational, medical, and mental health background.

Examples of the records that are often sought may include the following:

• Birth records • Marriage/divorce records • Military records
• Medical records • Death certificates • Social services
• Mental health records • Juvenile court records • Criminal records
• School records • Employment records • Counseling records



ALTERNATIVE SENTENCING

Even if the accused has been caught with his or her “hand in the cookie jar,” and a criminal conviction seems a certainty, in many cases there are creative alternatives to the prosecution itself or a sentence of jail or prison. Many prosecutorial agencies and courts offer diversion programs which can be completed as an alternative to the prosecution. Alternatives to jail may include alcohol and drug treatment or rehabilitation, probation, electronic monitoring and house arrest, work release, work furlough, community service, and many more. There are pros and cons to each, and a knowledgeable defense attorney can help determine which options are available and best for you.


WORK FURLOUGH

The work furlough program, under the supervision of the Maricopa County Adult Probation Office, allows people who have been sentenced to serve a jail term to get out for work. To participate in the work furlough program, the defendant must be screened by a probation officer before sentencing and meet many eligibility requirements. For example, the defendant must be statutorily eligible to serve jail rather than prison time; the defendant must be at least 18 years of age; the plea agreement cannot preclude work furlough; if the defendant is self-employed, documentation must be provided showing the business is legitimate; and many more. In addition, prior to sentencing the defendant must obtain a doctor’s certification that he or she is physically fit to live in the tents. Finally, the work furlough program is not free. To the contrary, a daily fee is calculated on a sliding scale and each work furlough participant must have their paychecks forwarded directly to the clerk of the court for automatic deduction of these fees.


WORK RELEASE

The work release program allows people who have been sentenced to serve a jail term to get out for work. But, work release is vastly different from the work furlough program. The work release program is not supervised by the Maricopa County Adult Probation Office. Instead, the judge sets the days and times of release. There are no fees involved with work release. This program is typically available to people ordered to serve jail terms for misdemeanor convictions.

Whether participating in work furlough or work release, the defendant is not allowed out more than 12 hours per day nor more than six days per week. In fact, defendants in DUI cases are only allowed out for a maximum of five days per week.


MISDEMEANOR COMPROMISE

In Arizona, a defendant accused of a misdemeanor or petty offense, who injures someone by the act constituting the offense, may be able to compromise the charge. This requires the injured party to appear before the court prior to trial, and acknowledge that he or she has received satisfaction for the injury. The court may then order the prosecution dismissed. A.R.S. § 13-3981.

Typically, offenses: (1) committed by or upon any officer of justice while in the execution of the duties of his office; (2) committed riotously; (3) committed with intent to commit a felony, and (4) involving an act of assault, threatening or intimidating or a misdemeanor offense of domestic violence as defined in section 13-3601, cannot be compromised. A.R.S. § 13-3981.


RESTORATION OF RIGHTS / SETTING ASIDE CONVICTIONS

A criminal record can hold a person back personally and professionally. Convicted felons often have difficulty obtaining good jobs, getting into schools, or just moving on in life, and feeling like they have closed the door on a chapter of the past. Once a person pays their debt to society through fines, jail time, or successfully completing probation, it is time to clean up their criminal record.

Automatic Restoration of Rights – A.R.S. § 13-912 – First-time felony offender’s civil rights, with the exception of the right to possess firearms, are automatically restored upon payment of all fines and restitution.
 

Restoration of Rights – A.R.S. § 13-905 - Generally a person whose period of probation has been completed may have his civil rights restored by a judge upon proper application. There may be further restrictions on the right to possess or carry a gun or firearm. The Gillespie Law Firm, P.C. can petition the court to restore your civil rights so that you can again vote and carry a gun.
 

Setting Aside Convictions – A.R.S. § 13-907 - This statute allows a court to set aside a judgment of a convicted person on discharge. Every person convicted of a criminal offense may, upon fulfillment of the conditions of probation or sentence and discharge by the court, apply to the judge, justice of the peace or magistrate who pronounced sentence or imposed probation or such judge's successor, to have the judgment set aside. Application must be made in writing by an attorney, probation officer or the defendant. If the judge grants the application, the court shall set aside the judgment of guilt, dismiss the accusations, except for penalties imposed by §§ 28-3304, 28-3306, 28-3307, and 28-3308.

The following criminal offenses may not be set aside:

1. Involving serious physical injury;
2. Involving use or exhibition of a deadly weapon or dangerous instrument;
3. Sexual offense;
4. If the victim is a minor under age 15;
5. A violation of § 28-3473, any local ordinance related to operation of a vehicle

Note: A conviction for DUI and certain other criminal traffic offenses under state law can be set aside because they are not violations of “local ordinances” pertaining to the operation of a vehicle.




The Gillespie Law Firm, P.C. is a leading Phoenix, Arizona DUI and criminal defense law firm dedicated to the aggressive representation of clients involving all aspects of vehicular crimes and criminal litigation. We handle cases in Federal, State, Municipal, Juvenile, and Appellate Courts throughout the greater Phoenix Metropolitan Area and all of Arizona.

 
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