Articles Posted in Appeals

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In a recent opinion in an Arizona negligent homicide case, the defendant’s request for a lesser sentence was denied. After having been found guilty of homicide in 2016, the defendant was sentenced to nine years’ imprisonment. The defendant appealed this sentence, arguing that it was unfair for the court to take two of his previous convictions into account when calculating his sentence. The court disagreed, citing a law that allows courts to consider previous offenses when they have happened within five years of the present, relevant offense. The court thus affirmed the defendant’s sentence.

Facts of the Case

According to the opinion, the defendant went to the victim’s home on November 16, 2016. Upon finding the victim outside, the defendant used a cement block to severely injure him. Four days later, on November 20, 2016, the victim died from his injuries. At trial, the jury found the defendant guilty of negligent homicide.

After the jury found the defendant guilty, it was the court’s job to sentence the defendant. While embarking on this process, the court decided to use two of the defendant’s prior convictions – possession of narcotic drugs for sale and a drug paraphernalia violation – to decide the amount of time the defendant should be required to serve. Because of these prior convictions, the court viewed the defendant as having committed three offenses instead of just one offense. The court then sentenced the defendant to nine years’ imprisonment.

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The law provides Arizona defendants with certain avenues of relief after a criminal conviction. While there are restrictions regarding what types of cases and issues are appealable, many defendants can challenge a conviction or sentence. If one has completed their sentence, they may be eligible to restore their civil rights by setting aside a criminal conviction. Appeals are much more complicated than criminal trials, and the proceedings require a comprehensive understanding of complex statutory and procedural rules.

The main types of conviction-review mechanisms are post-conviction relief and direct appeals. Once a court convicts and sentences a party, a defendant has the right to file a motion for post-conviction relief. These petitions are filed with the same trial court that issued the initial ruling. The Arizona Rules of Criminal Procedure (ARCP) designate the appealable issues permitted in these petitions. Specifically, Rule 32 provides an avenue for relief after the defendant has been found guilty or sentenced at a probation violation proceeding. Moreover, Rule 33 pertains to situations where a defendant pled guilty. The majority of these petitions assert ineffective assistance of counsel claims.

For instance, the Arizona Court of Appeals recently issued an opinion in a defendant’s petition to review a trial court’s order dismissing his petition for post-conviction relief. The appeal arose after a jury trial convicted the defendant of aggravated domestic violence, criminal damage, and influencing a witness in two consolidated cases. The defendant argued that his counsel was ineffective for failing to object to the consolidation.

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If an Arizona criminal trial ends up in a conviction, the defendant is entitled to an appeal to review any and all alleged legal errors that were made by the court during the trial. While the right to an appeal is automatic, there is not necessarily a corresponding right for the appellate court to hear every issue that the defendant raises on appeal. Typically, to preserve an issue for appeal, the defendant must lodge an appropriate objection during the trial allowing the trial judge to correct the alleged error. If a defendant fails to make an objection to a judge’s legal decision during the trial, they may be precluded from raising the issue on appeal.

Importantly, not every issue needs to be objected to in order to preserve a defendants’ appellate rights. For example, a defendant can always challenge the sufficiency of the evidence on appeal, even if the issue was not raised in a post-trial motion. However, most other potential issues, including evidentiary issues and weight-of-the-evidence issues, must be raised to be preserved. If an issue is not preserved, an appellate court can still review the record for plain error; however, this is an exceedingly difficult standard to meet.

Recently, the U.S. Supreme Court agreed to hear argument on a case involving the purported waiver of a defendant’s right to challenge the reasonableness of his sentence. In that case, the defendant was convicted of a federal drug crime and sentenced to 24 months of incarceration to be followed by a period of supervised release. While on supervised release, the defendant was arrested for another drug case. The defendant was convicted of the second drug offense, which was a violation of his supervised released. The defendant conceded that he was in violation of his supervised release, and asked the court for a concurrent 12-month sentence. However, the court sentenced the defendant to a consecutive 12-month term of imprisonment.

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Under common law, a burglary was defined as the breaking and entering of a dwelling of another at night with an intent to commit a felony therein. Over the years, state legislatures have refined the definition of burglary. For the most part, states have eliminated the requirement that the breaking and entering occur at night, and have added language making it a burglary to unlawfully remain on another’s property with the intent to commit a crime.

Arizona has three burglary statutes.

  • Burglary in the third degree: Entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein.
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Last month, the United States Supreme Court issued an opinion in a case that limits the government’s ability to seize the assets of those convicted of crimes. Typically, when someone is arrested for an Arizona crime, any assets that are potentially evidence will be seized. For example, it is common that a vehicle used to transport drugs will be seized as potential evidence. In the event that the defendant is found guilty, the government can proceed with a civil forfeiture claim in an attempt to keep whatever assets were seized.

The Facts of the Case

According to the court’s opinion, the defendant pleaded guilty to dealing in a controlled substance. When the defendant was arrested, he was driving a Land Rover that he had recently purchased for $42,000 with the proceeds from a life insurance policy.

The defendant was sentenced to one year of house arrest, followed by five years’ probation. The defendant was also fined $1,203. After the defendant was convicted, the state moved for civil forfeiture of the Land Rover. The trial court denied the government’s claim, noting that the value of the Land Rover was over four times the maximum fine for the crime for which the defendant was convicted. Thus, the court held that the 8th Amendment’s prohibition against excessive fines precluded the government from taking ownership of the vehicle.

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Under the Fourth Amendment to the United States Constitution, citizens are guaranteed the right to be free from unreasonable searches and seizures. Over the years since the passage of the Fourth Amendment, courts have interpreted this to mean that police are generally required to obtain a warrant that is supported by probable caused before they can search a person, car or home.

Of course, there are exceptions to this general requirement. For example, if a police officer has probable cause to arrest a defendant for the commission of an Arizona crime, the officer is allowed to perform a search incident to that arrest. Similarly, if a police officer is in hot pursuit of a defendant who is believed to have committed a serious crime, the officer may not need a warrant to enter a home or vehicle.

One of the most common exceptions to the warrant requirement is when the officer obtains consent to search from the defendant. However, in order for an officer to conduct a search based on a defendant’s consent, that consent must be valid and not coerced. A recent case discusses consent, and how courts determine if it is valid.

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Earlier this month, a state appellate court issued a written opinion in an Arizona burglary case in which the defendant challenged the sufficiency of the evidence that was used to convict him. However, the court affirmed the defendant’s conviction for burglary on the basis that the two-drawer filing cabinet he was seen peering into was a “nonresidential structure.”

The Facts of the Case

According to the court’s written opinion, a man received a notification on his cell phone that something triggered his home’s motion sensor. The man grabbed his gun and went outside to check around his property. Once the man got outside, he evidently saw the defendant holding a flashlight looking in a two-drawer filing cabinet that the man kept alongside his garage. The man told the defendant to stop, and the defendant was ultimately arrested and charged with burglary.

Burglary in Arizona

In Arizona, section 13-1508 defines burglary in the first degree as “entering … a nonresidential structure … with the intent to commit any theft or any felony therein” while possessing a weapon. The term nonresidential structure is defined in section 13-1501 as “any structure other than a residential structure and includes a retail establishment.” Section 13-1501 also defines the term “structure” as an “object… with sides and a floor that is separately securable from any other structure attached to it and that is used for lodging, business, transportation, recreation or storage.”

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Recently, an appellate court issued a written opinion in an Arizona drug trafficking case requiring the court to determine whether the lower court properly denied the defendant’s motion to suppress. The court ultimately concluded that the police possessed reasonable suspicion to approach the defendant in his car and order him out, at which point the defendant was legally arrested based on the officers’ observations. Thus, the court held that the defendant’s motion was properly denied below.

The Facts of the Case

According to the court’s opinion, Tucson police received a tip that someone was selling narcotics out of a home. Officers drove to the location, and watched as a man entered the residence and then left a short time later. Police followed the man to a restaurant parking lot.

Evidently, shortly after the man pulled into a restaurant parking lot, another man got into the vehicle through the front passenger door. Initially, the two men were sitting upright; however, shortly after the second man got into the car both seats reclined below the level of the window so that they were not visible by passersby. At this point, the police officers pulled their vehicles up next to the defendant’s, effectively boxing him in so he could not leave.

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Recently, a state appellate court issued a written opinion in an Arizona burglary case discussing whether the trial court properly reversed a defendant’s conviction after the jury was allowed to view digital pictures that had only been admitted into evidence as hard-copies. Ultimately, the court concluded that the digital images were “duplicates” of the original hard-copy photographs, and that showing the digital images to the jury was permissible.

The Facts of the Case

According to the court’s recitation of the facts, a witness saw a man and a woman jumping over a fence and entering a home. A few minutes later, the witness saw the same couple leaving the home carrying a black bag. The witness took several pictures of the couple on her cell phone.

Police later determined that jewelry and several guns were missing from the property. The defendant was arrested and charged with several crimes, including burglary and possession of a firearm by a prohibited possessor.

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Recently, an Arizona appellate court issued a written opinion in an Arizona drug crime case affirming the denial of a defendant’s motion to suppress evidence that was seized during a traffic stop. The case required the court to discuss whether the officer’s stop was extended beyond the time that was required to write the ticket issued to the defendant and, if so, whether that extension of the stop required the suppression of the evidence.Ultimately, the court concluded that the defendant consented to the extended encounter. Thus, the evidence seized as a result of the stop was not required to be suppressed.

The Facts of the Case

The defendant was driving on the highway when he was pulled over by a police officer for following too closely. After running the defendant’s name, the officer determined that the defendant’s license was suspended. The officer wrote the defendant a ticket.

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