(The content below was transcribed from an interview done with Acacia Law. We think you’ll find it much easier
and more enjoyable to read this way.)
Interviewer: So, this sounds confusing. So the probation department in Arizona is called pre-trial services?
Acacia Law: It’s a branch of the Arizona probation department and each county has their own little branch. So Maricopa County Adult probation office is not the same as how they operate in, say, Pinal County or Pima County, with Tucson. Essentially, each court has their own inter-county way of managing probation. So there is no real uniformity or continuity in that regard.
Interviewer: As part of sentencing or after, aka, after someone’s been sentenced they serve their time and they get out or just right after they’re sentenced, now they may have to go the Adult probation office.
Acacia Law: Correct. And sometimes people have, say, you have a situation where a person has pled guilty to two charges. They may get prison on the first charge, and then what’s called a tail probation, or a probation tail. And what that means is that, after they complete prison, if you’re not getting probation, you’re done, once you complete hour imprisonment and you do your community supervision, which is just a nice name for parole, for one-seventh of the time that you were in there, okay, after that you can have what’s called this probation tail, which means that as soon as you get out of custody you will now be placed on probation for a period of anywhere from one to eight years, depending on the charge that you pled to, the secondary charge, that is.
One other thing I should point out since we’re referencing felonies here is that there’s two critical allegations the state can make that can take any felony out of the realm of possibility of obtaining probation. One of those is that they allege that the crime was dangerous. For example, a very common one I have run across over the years is when somebody either points or displays a gun at another person. Even though they haven’t pointed the trigger even though they have no intention of pointing the trigger the person on the other side does not know that, could not know that and it is considered an aggravated assault on the individual.
Now an aggravated assault, which also includes when people are literally shot or stabbed, the normal range of sentence is that falls under Class 3. Under Class 3, they have to do the normal sentence of 7.5 years, I believe the maximum is 15 and the minimum is 5. Under those circumstances that individual will not be eligible for probation. They must do the prison time, so if they are convicted at trial of that, that is what is going to happen.
The other situation wherein probation can be made not available is if the individual has one or more prior felony convictions because, basically what happens after that, is that you move into a new and separate category. Each felony that you have up to having two or more historical priors, which is another name for having previous convictions, is something that is treated as a sentence enhancement tool. And what I mean by that is that if you have, for example, take that Class 2 I was talking about, just so you have an idea of the range of sentencings here, if you are talking about a case where they have alleged dangerousness, then in a Class 2, the minimum is 7 years, the normal sentence is 10.5 years and the maximum is 21 years. That’s almost double what you’re facing in a non-dangerous Class 2 felony situation.
Interviewer: Okay.
Acacia Law: In the situation where you have one or two historical priors, you’ve also bumped yourself out of probation. Unless the state does not allege that you have historical priors, then you must go to prison.
And if that’s the case, then what you are looking at is basically you add up whether they have one or two or more prior felony convictions and that will give you not only maximum jail time, but it will also give you an increased sentencing range just like when they make the allegation of dangerousness. Does that make sense?
Interviewer: So, if someone was convicted of, let’s say, a low level felony, years ago, it’s endangering anything that happens to them now. Let’s say they armed robbery. That’s going to possibly enhance their sentence beyond what they normally would have gotten because they have priors . . .
Acacia Law: That is correct, yes. And, in fact, if the prior felony was a dangerous felony, it makes it even worse.
Interviewer: So for the same crime someone can get radically different sentences and probation no probation, things like that. So it’s not only the crime that determines the sentence, it’s all these other factors that could contribute to it.
Acacia Law: Exactly. If you have for example, let’s take a situation where you have, say, two or more prior felonies. If you look at Class 2 under those circumstances, your presumptive term is nine and a quarter years, your maximum is 18.5, minimum six years. If you have a third, then you are looking at 14 years, 15.75 years is the presumptive and 28 years is the maximum. That’s quite a jump.
It gets worse though. If you have a prior dangerous offense, your sentence enhancement jumps through the roof. Now you’re looking at possibly 21 years with a normal sentence of 28 years and a maximum sentence of 35 years in prison. Very, very, substantially different than just your normal non-dangerous Class 2 felony conviction.
They also have a separate category for dangerous crimes against children. That sentencing range is radically high, even if the person has one or more prior convictions of a serious nature and they have a dangerous crimes against children charge pending, they can get pretty much close to life in prison. It’s almost a given. I’ve had cases, not personally, but I’ve cases where people have had their clients sentenced to 180 years in prison, which is a life sentence.
Interviewer: Are these sentence guidelines or are they absolutes that the judges have to follow? How does it actually work in practice?
Acacia Law: That’s a good question. In federal court they are called guidelines. In state court for state felonies, they are absolutes. For example, if you take the Class 2 dangerous 7 to 21 years, the judge, no matter how they feel about the case, is handcuffed. They must sentence you to prison somewhere between 7 and 21 years.
If they are going to go lower than the presumptive or normal term, which is 10.5, they have to make findings of mitigating circumstances and actually outline them on the sentencing document to make an assessment and preserve a record as to why they came up with the number that they did.
In addition to that, if they think that the presumptive of 10.5 years is too low, given the person’s history or the nature of the offense, then they can bring them right up to the max of 21 years. But that is really the extent of their discretion.
You know that if your client is hit with a Class 2 dangerous and found guilty or pleads guilty to such, then what they’re facing is 7 to 21 years. There’s nothing the judge can do about it. Even if the judge thinks it’s a miscarriage of justice, they have no choice but to sentence a person to a minimum of seven years in prison.
Interviewer: It seems like once you are on the radar of the criminal justice system that you having committed a misdemeanor or even a low level felony, you’ve got to be extremely careful because you can very easily get pulled back in for an extremely long time because of any prior things that you did.
Acacia Law: That is correct. One of the other things that people don’t usually consider is that, if you pick up a third misdemeanor, in this state, if you’ve been convicted of two other ones. If you pick up a third, depending on the nature of the misdemeanor, they can file that as a felony in superior court.
The reason being is that it’s considered aggravating to have either misdemeanor priors if you pick up a third, they are not going to necessarily treat it as misdemeanor for a third time. This time, they have an opportunity to file it as a felony. I believe it’s normally a Class 6 felony, but, still, now you’re looking at prison time and you’re looking at being a convicted felon, which is a huge difference from being convicted for a misdemeanor normally.
Interviewer: Okay.
Acacia Law: Actually, for work and school purposes, that’s where you run into most problems with these things. And, yes, the person’s history goes deeper than that. It’s not just a question of what they may or may not have done in the past few years.
Most courts will also, particularly if the person’s still in their 20s or 30s, ask their juvenile histories, to see if they have extensive juvenile history. Now, again, many people ask me ‘How can they do that? Aren’t juvenile records sealed?’ And the answer is, yes, they are sealed. They won’t be disclosed to the public, but when a pre-sentence report comes out, every single time that person’s confidential juvenile history will be made available to the defense, the state, as well as the judge.
I have seen judges basically take a look at the pre-sentence report and come to the conclusion that this person, based on their juvenile history has no means or ability to comply with probation and, therefore, not only is prison warranted, depending on the seriousness of the offense, an aggravated or maximum sentence is basically considered appropriate under the fact pattern.
