Category Archives: Criminal

Restoring Gun Rights in Arizona

A person with a felony conviction cannot legally possess or use guns in Arizona. Restoration of gun rights is not automatic in Arizona. Whether or not a person can have gun rights restored after a felony conviction depends on the nature of the felony and how much time has passed since the date of conviction. A person who has been convicted of a dangerous crime can never have their gun rights restored according to A.R.S. §§ 13-905(C) https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/13/00905.htm and 13-906(C).  https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/13/00906. A.R.S. § 13-105(13) defines a “dangerous offense” as an offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury to another person. An individual with a misdemeanor conviction for an offense that is considered “domestic violence” faces serious obstacles in restoring gun rights. In 1997, Congress passed the Domestic Violence Offender Act found at 18 U.S.C. § 921(A)(33)(B)(ii) https://www.law.cornell.edu/uscode/text/18/921. This federal act prohibits a person convicted of a domestic violence offense from possessing a gun unless the conviction was expunged, set aside, or had civil rights restored in states where domestic violence misdemeanors cause a loss of civil rights. In Arizona, a misdemeanor conviction does not result in a loss of civil rights. This means that the only process available to possibly restore gun rights is to apply to set aside the conviction pursuant to A.R.S. § 13-907 https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/13/00907.htm Unfortunately, a judge could decide to set aside the conviction and not restore gun rights. A person who has been convicted of a felony offense that is not a serious offense as defined by A.R.S. § 13-706 must wait for two years from his or her discharge from probation or absolute discharge from prison before filing for restoration of gun rights. A person who has been convicted of a serious offense as defined by A.R.S. § 13-706 must wait for ten years from his or her discharge from probation or absolute discharge from prison before filing for restoration of gun rights. A.R.S. § 13-706(F)(1) defines “serious offense” as: (a) First degree murder. (b) Second degree murder. (c) Manslaughter. (d) Aggravated assault resulting in serious physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument. (e) Sexual assault. (f) Any dangerous crime against children. (g) Arson of an occupied structure. (h) Armed robbery. (i) Burglary in the first degree. (j) Kidnapping. (k) Sexual conduct with a minor under fifteen years of age. (l) Child sex trafficking. Restoration of gun rights is discretionary with the judge or his/her successor who sentenced the individual. If you want to restore your gun rights, you need an experienced attorney who will fight for you. Get in touch with Attorney Gary Rohlwing to help with restoring your rights to carry a firearm. He has over three decades of experience. Please call him today for a free 30 minute consultation.  

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Why Defense Attorneys Should Not Judge Clients

Judging others is usually seen as acceptable. We expect judges, juries and prosecutors to judge defendants, people charged with crimes. We also expect that their judgments will be fair and based on the evidence presented in court. Forgotten in all this talk is the fact that defense attorneys sometimes prejudge their clients as guilty. Let’s imagine a scenario where the defendant is a middle-aged man named Tom who has no prior criminal record and has a good reputation in the community. The prosecutor charges him with inappropriately touching a young child, a felony known as child molestation. On paper, Tom seems guilty: the prosecutor has the statements of the young child who was interviewed by an experienced sex crimes detective. The reality is that the charge is completely false. Tom is frightened and confused by the whole thing. He wants to hire an attorney who will believe him and reveal the truth: he is innocent. Unfortunately, he hires a defense attorney who manages to conceal his belief that all middle-aged men charged with molesting young children are always guilty and should rot in prison. How does the attorney’s belief effect his representation of the client? The attorney talks to Tom as little as possible. After all, who wants to talk to a guilty child molester? The attorney does not investigate the case as thoroughly as he should. The prosecutor’s case appears strong. He does not want to determine whether or not the charge is actually true. The attorney does not analyze the case as thoroughly as he should. That would require spending time learning all the facts. Because he does not investigate and analyze the case thoroughly, relevant pretrial motions to dismiss the case and/or suppress evidence do not get prepared and filed. The attorney does not effectively negotiate if a plea is offered. The presumptive sentence of 17 years in prison as dictated by A.R.S. § 13-705(D) is fine with him. If Tom insists on a trial, the attorney puts in the least amount of effort possible. He does not want to help a guilty client escape punishment. Because of his attitude, important issues for appeal are not raised at the trial where they could actually make a difference in the trial outcome. Unsurprisingly, Tom is found guilty. The attorney once again puts forth little effort at Tom’s sentencing hearing so he does not receive the minimum sentence of 10 years in prison. Tom is sentenced to 17 years in prison. Because of the attorney’s poor performance at trial, Tom’s appeal, if there is one, is unsuccessful because all the appeal issues should have been raised at the trial for the trial judge to handle. Don’t make the mistake of hiring a judgmental criminal defense attorney. Attorney Gary Rohlwing is an experienced attorney who will not judge you even if you are charged with a sex crime against a child. Please call him today for a free consultation.

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Planet Defendant: Learn the Lingo Part One

Being charged with a crime can feel like being transported to another world called Planet Defendant. Like all worlds, Planet Defendant has its own lingo that one should learn to better understand what’s happening. The following list is specific to Maricopa County Superior Court and defines some common words. Some of the definitions were taken from the Adult Criminal Trial Process page of the Maricopa County Attorney’s Office website found at https://www.maricopacountyattorney.org/189/Adult-Criminal-Trial-Process This blog post defines words in the first half of the alphabet; next month’s blog post will define words in the second half of the alphabet. Arraignment: A court hearing that is held within ten days after the filing of an indictment or direct complaint. At the arraignment, the judge informs the defendant about the exact charges against him, that he should hire an attorney or see if he qualifies for a public defender, and asks him if he pleads guilty or not guilty to the charges. The judge then sets a date for a pretrial conference and trial date. Charge: A formal accusation made by the prosecutor that a person has committed a crime that is found in a complaint. A charge is called a “count” if it is found in an indictment. Complaint: A document prepared by the prosecutor which describes the felony offense(s) the defendant is alleged to have committed. Court: A general term that refers to any judge or commissioner. EDC: “EDC” stands for “Early Disposition Court”. EDC handles most first and second offense drug offenses. Eligible cases are identified at the Initial Appearance. The plea and sentencing are combined. Indictment: A document prepared by the prosecutor based on the findings of a Grand Jury. It has formal accusation(s) called count(s) stating that a person has committed crime(s). Upon receiving an indictment, a judge may either issue a summons ordering the defendant to appear in court or prepare an arrest warrant. Initial Appearance: This is the first court hearing that is held after a person is arrested at the scene or based on an arrest warrant. At the initial appearance, the judge informs the defendant about the felony allegations, his right to an attorney if he can afford one or a public defender if he cannot, and conditions of the defendant’s pretrial release. He then sets a date for a status conference and preliminary hearing. Jail: The jails hold defendants who have not been sentenced and can’t make bail or are ineligible for bail as well as defendants sentenced to less than one year incarceration. Law: A general term that refers to Arizona laws (the Arizona Revised Statutes) and decisions/opinions from the Arizona Supreme Court and Arizona Court of Appeals.   Planet Defendant lingo can be confusing. Attorney Gary Rohlwing knows the lingo because he has over three decades of experience defending clients in Maricopa County Superior Court. Please call him today for a free consultation.

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Major Players Disagree on Arizona Criminal Justice Reform

Criminal justice reform has been a recurring theme in the Arizona Legislature the last few years. Unfortunately, reform is very slow in coming compared to other states. Reporters Paulina Pineda and Katie Campbell wrote an article for Arizona Capitol Times entitled “Arizona Resistant to Change in “tough-on-crime” Sentencing Laws” that was published on March 23, 2018 detailing why reform is slow. The article can be found at the following link: https://azcapitoltimes.com/news/2018/03/23/arizona-doug-ducey-bill-montgomery-david-stringer-will-gaona-caroline-isaacs-kurt-altman-resistance-to-criminal-justice-reform/ Maricopa County Attorney Bill Montgomery wants tougher sentencing laws while Will Gaona, policy director of the ACLU of Arizona, the American Friends Service Committee, and Families Against Mandatory Minimums want to change Arizona’s rigid sentencing laws and end mandatory minimum sentences, especially for drug offenses. Montgomery has like-minded allies in the Arizona legislature who seem to have a lingering “tough-on-crime” mentality. Montgomery believes that Arizona is already ahead of other states. According to the authors: “Montgomery called other ideas being pushed by the smart-on-crime crowd “pet projects” that are “based on myths and rhetoric.” “Most of the folks who call criminal justice reform ‘reform’ – all they’re really out to do is arbitrarily adjust sentencing statutes or adjust truth-in-sentencing with no data to support it,” he said.” . . . But Montgomery scoffed at their ideas of “so-called reform,” arguing that they’re trying to overlay other states’ solutions on Arizona. He said the reality is other states either face different problems or are simply implementing measures Arizona embraced years ago, such as diverting first-time drug offenders to treatment instead of prison. “And because we weren’t part of the so-called reform wave, we don’t get credit for what we did,” Montgomery said. He said the first step in the public policy conversation must be to define the problem and determine what resources are needed to solve it. “For so many, and this is what has been a frustration of mine, they don’t understand the problem,” he said. “We need to come to a common understanding of the criminal environment we actually have, the types of crimes we have to deal with, and then what makes for the most effective policy. … What do we want to define as success for the criminal justice system in Arizona?”   For Montgomery, success would mean reducing recidivism, a goal he shares with Gov. Doug Ducey.” Gaona stated that the recent finding in the Arizona Prosecuting Attorneys’ Advisory Council’s updated Prisoners in Arizona report that 84% of state prisoners are repeat offenders “demonstrates the failure of our criminal justice system” and “Obviously, this is not an effective intervention, and we’re just going to try it again for longer period of time for something that has already been demonstrated not to work.” Governor Doug Ducey has been largely silent about reforming the sentencing laws. He wants to reduce recidivism as explained by his spokesman: “Ducey spokesman Daniel Scarpinato said the governor approaches the issue from a public safety perspective. The governor’s priority, he said, has been to provide people who have already served their time … Continue reading

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Arizona’s Catch – All Aggravating Circumstance

A.R.S. § 13-701(D)(26) is a catch-all for the prosecutor to use at sentencing if other aggravating circumstances don’t apply: “ 26. 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.” You can find the original document at https://www.azleg.gov/ars/13/00701.htm The Supreme Court of Arizona has held that an aggravated sentence based solely on the catch-all aggravator violates due process because that aggravator is “patently vague.” See State v. Schmidt, 220 Ariz. 563, 566 ¶¶ 9-10 (2009). The Arizona Court of Appeals has found that the following are appropriate aggravating circumstances under the catch-all: Defendant’s misconduct that rises to a level beyond that which is merely necessary to establish an element of the underlying crime. State v. Tinajero, 188 Ariz. 350, 357 (Ariz. App. 1997), Defendant’s prior conduct that didn’t result in a conviction. State v. Shattuck, 140 Ariz. 582, 583 (1984). Society’s need for deterrence is a proper aggravating factor. See State v. LeMaster, 17 Ariz. 159, 166 (Ariz. App. 1983). Defendant is a danger to society. See State v. Wideman, 165 Ariz. 364, 369 (Ariz. App. 1990). Defendant’s single act created multiple victims. State v. Tschilar, 200 Ariz. 427 (Ariz. App. 2001). Defendant’s attempt to cover up the crime and not seek help for the victim. See State v. Jenkins, 193 Ariz. 115 (Ariz. App. 1998). Defendant’s lengthy criminal history. See State v. Fristoe, 135 Ariz. 25 (Ariz. App. 1982). Defendant was previously on probation, violated probation, or was on probation at the time of the crime is an appropriate aggravator. See State v. Winans, 124 Ariz. 502 (Ariz. App. 1979); State v. Ritacca, 169 Ariz. 401 (Ariz. App. 1991). Defendant was previously imprisoned. See State v. Soto-Perez, 192 Ariz. 566 (Ariz. App. 1998). The Court of Appeals has also found that a defendant’s lack of remorse is not a proper aggravating circumstance. See State v. Tinajero, 188 Ariz. 350, 357 (App. 1997). Moreover, a defendant’s prior exemplary life is not a proper aggravating circumstance. See State v. Just, 138 Ariz. 534, 551 (Ariz. App. 1983). If you are charged with a felony, the prosecutor will most likely use the catch-all aggravator to aggravate your sentence. Don’t fight the prosecutor alone. You need an experienced defense attorney to fight for you and help you with your felony defense. Attorney Gary Rohlwing has over three decades of experience. Call him today for a free consultation.

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