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. Criminal Felony Defense Attorney Gary Rohlwing has over three decades of experience. Call him today for a free consultation.

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