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The Price of Being Right

Arizona’s Revised Statutes are filled with mandatory sentencing provisions. For instance, A.R.S. 13-703 says that a repetitive offender in “category three,” someone who has been convicted of a felony and has two or more historical prior felony convictions, “shall be sentenced” within certain sentencing ranges. The range for a category three offender convicted of a class 2 felony is 10.5 years to 35 years.

A.R.S. 13-704 contains another mandatory sentencing scheme. A “dangerous offense” is one “involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.” If someone is convicted of a “dangerous” class 2 felony, the statute says that he or she “shall be sentenced” to a term of imprisonment between 7 and 21 years.

When I first started out, it was tough for me to wrap my head around conflicting mandatory sentencing provisions. That was because I hadn’t seen how it worked in practice. What happens when someone is convicted of a class two dangerous offense and also has two historical priors?

The practical reality of the matter is that it will almost never be an issue. The state must allege and prove at trial that an offense is repetitive or dangerous in order for a defendant to be sentenced pursuant to one of those statutes. If the state wants to make sure the defendant receives a sentence in the harshest mandatory sentencing range, it can just withdraw the other allegations. Pretty much anyone with a little bit of experience in criminal laws know the longest sentencing range is going to apply, but many people don’t know why.

I recently watched a settlement conference for a defendant who faced two allegations with conflicting mandatory sentencing ranges. The defense lawyer had clearly read both statutes in detail and was very proud of himself for figuring out a clever argument about why the statute containing the lesser range would govern if the state proved both allegations. The judge, who wanted to advise the defendant about what he potentially faced if he lost at trial, obviously did not understand the defense lawyer’s argument. He knew the harsher range applied, but it was obvious he didn’t know why.

The defense lawyer was right from a purely legal standpoint. If the state was stupid enough to go through with the whole trial and prove both allegations, the defendant would likely have to be sentenced inside the lesser of the two ranges. However, the judge’s advice about what the defendant faced if convicted at trial was far more accurate.

The defense lawyer ranted and raved, wanting everybody in the courtroom to see just how smart he was. It was uncomfortable. I think that every lawyer in the courtroom knew that the defense lawyer was right. Kinda. They also all knew the judge was wrong. Kinda.

The hearing ended with the judge advising the client of the stiffer prison range and the defense attorney making a record about how he disagreed. If the prosecutor didn’t previously know to drop the other allegation to increase the defendant’s mandatory minimum, he sure knew after that settlement conference.

That hearing reminded me that making sure everyone knows you’re right often isn’t worth it. It’s an important lesson for a lawyer to learn.

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