Author Archives: Gary Rohlwing

Arizona Town Hall: Sentencing

Arizona is a law and order state with some of the harshest sentencing laws in the country.  Several criminal justice groups from the left and the right have taken notice. One of these groups is Arizona Town Hall.  The following is taken from “Sentencing and Incarceration” by Cassia Spohn, PhD, Criminal Justice in Arizona 2018, Arizona Town Hall http://www.aztownhall.org/resources/Documents/111%20Criminal%20Justice%20in%20Arizona%20Background%20Report%20web.pdf   In Arizona, judges use the Arizona sentencing guidelines which are based on two factors: whether the offense is a dangerous or non-dangerous felony and whether the defendant is a first time offender or a repeat offender. Dangerous felony charges are serious, violent or aggravated offenses such as murder, aggravated assault, sexual assault, dangerous crimes against children, and armed robbery.  There are separate sentencing tables for first time offenders, offenders with one or two historical priors and offenders with prior convictions for one or more dangerous offenses. Each sentencing table has a minimum, presumptive, and maximum sentence. For repeat dangerous offenders, the sentencing table has a minimum, maximum, and increased maximum sentence. For example, a first time offender convicted of a class 2 felony dangerous offense could face a minimum sentence of seven years, a presumptive sentence of 10.5 years, or a maximum sentence of 21 years.  However, an offender convicted of a class 2 felony dangerous offense who had previously been convicted of two or more class 2 dangerous offenses would be facing a minimum sentence of 21 years, a presumptive sentence of 28 years, or a maximum sentence of 35 years. Offenders convicted of non-dangerous felonies are somewhat different. Although these offenses are also categorized by the class of offense and by the offender’s criminal history, the sentencing tables provide a mitigated and aggravated sentence in addition to the minimum, presumptive and maximum sentences. As an example, a first time offender convicted of a non-dangerous class 2 felony would be facing a minimum sentence of four years, a presumptive sentence of five years, or a maximum sentence of 10 years.  If the judge finds at least two mitigating factors, like the defendant’s youth or the defendant played a minor role in the crime, the judge can reduce the sentence below the minimum sentence. Similarly, if there are at least two aggravating factors, such as the defendant had an accomplice or the crime was committed in a heinous, cruel or depraved manner, the judge can increase the sentence above the recommended maximum sentence. Moreover, all first-time, non-dangerous felony offenders are eligible for probation. The author wrote: “Arizona has a “truth-in-sentencing” statute. Passed in 1993, the statute requires that offenders serve 85 percent of the sentence imposed by the judge before being eligible for discretionary release. According to The Sentencing Project, Arizona’s incarceration rate is the forth-highest in the United States. In 2016 it was 585 per 100,000 population, compared to a rate of 450 per 100,000 for the United States as a whole. There were 40,952 persons imprisoned in Arizona in 2015, including 1,685 (3.9 percent of the prison population) … Continue reading

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MCAO Crime Strategies Group

The Maricopa County Attorney’s Office has started a new group called the Crime Strategies Group.  The following information is from “Intelligence Focused Prosecution at the MCAO”, Maricopa County Attorney’s Office Justice for All September 2018 newsletter https://www.maricopacountyattorney.org/CivicSend/ViewMessage/Message?id=66664 The Crime Strategies Group has detectives, paralegals, prosecutors, and analysts who use technology and information sharing to identify crime trends and patterns.  Analysts work directly with law enforcement and the community to achieve successful results. After analyzing and categorizing material related to offenses and offenders, it is communicated to prosecutors so criminals and criminal activity can be stopped as soon as possible.  This system is called Intelligence Focused Prosecution (IFP). The Maricopa County Attorney’s Office is one of the few prosecutor offices in the nation to use it. The Crime Strategies Group has thirteen members including crime and intel analysts, a drug intel analyst, a paralegal, and an information systems analyst.  They use a robust group of tools and information to help them identify problems, analyze data, respond, and then assess and process the results. The IFP system is based on teams and group sharing of data and information with local law enforcement agencies.  Geographically assigned prosecutors familiarize themselves with the community drivers in their assigned area and work with police and the assigned crime analysts to best address the problems and offenders. The article describes how the IFP system works: “Analysts conduct research using criminal histories, social media, open sources and plain old gumshoe detective work which often means picking up the phone and calling a detective or analyst in the city next door. The information gleaned from these sources is confirmed and vetted, and when compiled into reports, helps provide prosecutors with the rest of the story. These partnerships often result in success stories between MCAO crime analysts, prosecutors and law enforcement, much like a recent case in the West Valley that you can read more about in the following article. Looking forward, IFP will continue to create assessments based on crime data and law enforcement information to identify areas of emphasis. Maricopa County Attorney Bill Montgomery knows the IFP model will allow the Office to reduce crime, enhance public safety and ensure protection to victims, “We will continue to evolve as a strategic focused organization. This IFP approach allows us to get the most effective and meaningful response for public safety. Our crime analysts are the best of the best and their expertise gives our prosecutors focused information to help make the most important decisions.” If you are charged with one or more felonies based on work done by the MCAO Crime Strategies Group, you need an experienced defense attorney.  Attorney Gary Rohlwing has over thirty years of experience. Call him today for a free consultation.

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Arizona Town Hall Report Summary

The Arizona criminal justice system has received a lot of scrutiny recently from various groups. One of these groups is Arizona Town Hall. Arizona Town Hall recently completed a report on criminal justice in Arizona. The following is from Criminal Justice in Arizona, Summary of the Arizona Town Hall Report, March 2018 found at http://www.aztownhall.org/resources/Documents/111%20Criminal%20Justice%20In%20Arizona%20Key%20Facts%20web.pdf The Arizona Town Hall summary brief gives some highlights from the full Arizona Town Hall report on criminal justice in Arizona.   In Arizona, the number of crimes committed has declined for years even as the population has increased.  The crime rate has declined by over one-third since 2006. Unfortunately, incarceration rates have gone up during the same time period.  The vast majority of cases heard by the courts are minor traffic and civil cases. Total costs of the Arizona criminal justice system average approximately $525 for every man, woman, and child every year. There are approximately 15,000 sworn law enforcement officer in Arizona’s over 140 different police agencies.  Crime rates have decreased even though the number of officers per 1,000 residents in Phoenix has gone down since 2008.  The connection, if any, between these statistics is unclear. Poor people often cannot make bail while waiting for their trials.  Research shows that bail does little to ensure that defendants return for trial.  Reforms are being implemented to make the imposition of bail more equitable and to reduce people awaiting trial in jail. Prosecutors have wide discretion in deciding what charges to press against a defendant.  The decision not to charge may be the most powerful tool of the prosecutor. Although the initial charges filed may not be the ones that are eventually brought to trial, they influence key decisions on bail, plea bargains, and sentencing.  The development of charging guidelines could reduce seemingly arbitrary charges. “Determinate sentencing” such as Arizona’s rigid sentencing laws has resulted in a transfer of power from judges to prosecutors since the charges filed by the prosecutor now largely determine the sentence.  The increase in Arizona’s prison population is the result of changes in sentencing policy, not changes in crime. Arizona has the 4th highest incarceration rate in the country at 585 per 100,000 population. 18 percent of those released return to prison within six months.  Arizona’s three-year recidivism rate of 39 percent is lower than the national average of 50 percent.  Those returning to society after prison often lack the resources to establish themselves in the outside world.  Access to transportation, employment, and health care may help reduce recidivism. The Arizona criminal justice system raises the following questions: Has the crime rate decreased due to the increase in imprisonments or is something more complex at work? When does the use of force by police officers cross the line from legitimate authority to abuse of power? Does imposing bail really ensure that defendants return for trial? How much discretion should prosecutors exercise when filing chages? Do mandatory sentencing rules reduce crime or are they unnecessarily inflexible? Don’t face the Arizona criminal … Continue reading

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Planet Defendant: Search and Seizure

Being charged with a crime can feel like being transported to another world called Planet Defendant. Like all worlds, Planet Defendant has its own customs and procedures that one should learn. A very important custom and procedure on Planet Defendant is called search and seizure. Search and seizure comes from the Fourth Amendment to the U.S. Constitution: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”   The Arizona State Constitution has a similar provision found in Article 2, Sec. 8: “8. Right to privacy Section 8. No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Many constitutional challenges under search and seizure involve warrantless searches. Whether or not a warrantless search and seizure violates the Fourth Amendment and/or Article 2, Sec. 8 depends on the particular facts of a case. Some of the particular facts are: A person’s status such as arrestee, probationer, homeowner, guest, driver, vehicle owner, or passenger; A person’s initial actions that attracted law enforcement attention; A person’s actions during the search and seizure such as consenting or seeming to consent to the search; Law enforcement’s actions during the search and seizure; Nature of what is being searched such as a home, hotel room, business, vehicle, backpack, luggage, or purse; and Whether there is valid probable cause for the search.   If a court determines that the particular facts of a case violate either the Fourth Amendment or Article 2, Sec. 8, it then decides whether the prosecution’s argument(s) that an exception applies so that the warrantless search and seizure is constitutional after all. Some exceptions are search incident to arrest, plain view doctrine, and good faith doctrine. In the 18th century, the Founding Fathers did not have computers, smartphones, gps, and the internet. The United States Supreme Court is continuously redefining what constitutes search and seizure when it comes to modern technology. Law enforcement must have a search warrant in order to search a person’s smartphone according to Riley v. California, 134 S.Ct. 2473 (2014). Law enforcement must also have a warrant to collect location data about cellphone company customers pursuant to Carpenter v. United States, 585 U.S. __ (2018). Finally, law enforcement must obtain a warrant to put a GPS tracking device on a vehicle to monitor the vehicle’s movements according to United States v. Jones, 132 S.Ct. 945 (2012). Search and seizure is a complex constitutional doctrine. If your case has a warrantless search and seizure, you need an experienced defense attorney to determine whether it was constitutional. Law Offices of Gary Rohlwing Criminal Lawyer has over thirty years experience. Call him today for a free consultation.  

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Planet Defendant: Due Process

Being charged with a crime can feel like being transported to another world called Planet Defendant. Like all worlds, Planet Defendant has its own customs and procedures that one should learn. A very important custom and procedure on Planet Defendant is called due process of law. Due process of law comes from the Fifth Amendment to the U.S. Constitution which states that no person shall be deprived of life, liberty, or property without due process of law. The Fifth Amendment applies to Arizona criminal court proceedings because the Fourteenth Amendment states that no state shall deprive a person of life, liberty, or property without due process of law. Moreover, the Arizona State Constitution has a due process clause found in Article 2, Sec. 4. Therefore, due process of law is a federal and state right. Due process of law basically means that a person accused of a crime is treated fairly throughout the criminal proceedings against him. It includes procedural due process such as procedures concerning notice, presenting evidence on his own behalf, and challenging evidence against him. It also includes substantive due process such as fundamental fairness and a meaningful hearing. “Fundamental fairness” and “meaningful hearing” are incapable of precise definition; they are intended to be fuzzy and flexible since it is impossible to accurately define and know the myriad ways that a prosecutor or court could appear to give a person accused of a crime procedural due process yet act in such a way that is fundamentally unfair and renders the hearing or trial meaningless. A court not allowing a person accused of a crime enough time to present his defense would violate the fundamental fairness substantive due process of law. Moreover, a court deliberately ignoring exculpatory evidence presented at trial would violate the meaningful hearing substantive due process of law. Due process of law is generally the right to notice and a meaningful hearing or trial before a fair and impartial judge wherein the accused may present evidence and witnesses in his defense, cross-examine witnesses and challenge evidence against him, and present arguments and law in his defense. The specific procedures used to notify the accused and conduct the hearing or trial are based on the type of hearing or trial. Some examples are: Felony indictment or complaint in superior court gives rise to right to a jury trial; Misdemeanor complaint in city or justice court gives rise to right to a jury or nonjury trial depending on the nature of the charge; Motion for Release on Bail gives rise to a bail release hearing; Petition to revoke probation gives rise to a right to a probation revocation hearing. Designation of an offense as a Class 6 felony instead of a misdemeanor gives rise to the right to receive actual notice and an opportunity to be heard; Motion for an Examination of a Defendant’s Competence to Stand Trial gives rise to a hearing. Interestingly, due process of law does not apply to every type of criminal procedure. … Continue reading

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