In Arizona, the sentencing hearing is the stage in the criminal justice system when the judge imposes a sentence on a convicted criminal defendant. It comes after a guilty verdict at trial, or after a guilty plea. It is scheduled after the presentencing hearing, where the judge considers evidence that mitigates or aggravates the defendant’s culpability before imposing the sentence.

1. What is the sentencing hearing in Arizona?

The sentencing hearing is when the judge imposes the penalties for a criminal conviction. It comes after the presentencing hearing, where the judge hears evidence about what sentence to impose.

In Arizona, criminal convictions – especially felonies – can carry a wide range of prison sentences. For example, a non-dangerous Class 3 felony has the following sentencing range for defendants who do not have a criminal background[1]:

Mitigated sentence	Minimum sentence	Presumptive sentence	Maximum sentence	Aggravated sentence
2 years	2 years and 6 months	3 years and 6 months	7 years	8 years and 9 months

A felony sentencing chart can show how complicated these sentencing ranges can be.

In addition to jail or prison time, judges also have to decide whether to impose other penalties, like:

• fines,
• probation, and
• other penalties, like community service, restitution, and mandatory rehabilitation.

The presentencing hearing is where the judge will hear evidence specifically tailored to the penalties that the defendant will face for committing the criminal offense. This focuses on the aggravating or mitigating circumstances surrounding the crime. The prosecutor will present evidence of aggravating factors that they will argue calls for a harsh sentence. A criminal defense attorney will present evidence of mitigating factors that shows why the court should be lenient.

After the evidence has been presented at the presentencing hearing, the judge will hold a sentencing hearing and pronounce the court’s judgment.

2. How does this fit into the criminal process?

The presentencing and sentencing hearings only happen after the defendant pleads guilty or has been found guilty after a trial. When the sentencing hearings will happen will depend on when the defendant was found guilty. There are 3 possibilities:

1. the defendant pled guilty or no contest at his or her arraignment or initial appearance,
2. the defendant entered into a plea agreement with prosecutors before trial, or
3. the defendant’s case went to trial and the judge or jury issued a guilty verdict.

If the defendant pleads guilty at his or her arraignment, the case will go straight to the sentencing phase. There will be no:

• discovery of evidence,
• preliminary hearing,
• plea negotiations, or

Guilty pleas at the arraignment make for a very quick criminal process, as it will cut off nearly all of the stages in the criminal justice procedure.

If the defendant pled guilty in a plea agreement, then the case will move straight to the sentencing hearing. There will be no presentencing hearing because the defense and the prosecutor have agreed to the terms of the sentence. These agreements can be made at any point between the arraignment and the trial – right up to the moment that the verdict is issued.

If the case goes all the way to trial and the trial ends with a guilty verdict for a felony case, then the defendant will be held in jail until the sentencing hearings or will be released on bail. If the offense was only a minor misdemeanor, the defendant may be released pending the sentencing hearing on his or her own recognizance.

3. What happens at the sentencing hearings?

At the presentencing hearing, the judge will listen to evidence about whether the sentence should be harsh or lenient. At the sentencing hearing, the judge will pronounce the judgment of the court.

The evidence for the presentencing hearing comes in the following forms:

• the presentence report,
• testimony from victims of the crime,
• statements by the prosecutor that suggest that the defendant deserves a harsh sentence,
• statements by the criminal defense lawyer that the defendant deserves a lenient sentence, and
• if he or she wants to speak, testimony from the defendant.

The defendant has a right to speak on their behalf during the sentencing hearing, but are not required to do so.[2]

These types of evidence can be used to show the presence of aggravating or mitigating circumstances surrounding the offense.

If the defendant accepted a plea deal, there might not be a presenting hearing. The judge’s role in these cases is reduced to reviewing the terms of the plea agreement and either accepting it or rejecting it. Because there is little discretion, there is no need to present evidence to the judge to increase or reduce the sentence.

If the conviction could carry the death penalty, the presentencing hearing becomes crucially important.

At the sentencing hearing, the judge will:

• give the defendant an opportunity to speak,
• pronounce the judgment of the court and issue the sentence,
• apply time that the defendant has already spent in jail to the sentence,
• explain the terms of the sentence to the defendant,
• set the starting date for the term of imprisonment,
• for theft, shoplifting, or driving under the influence (DUI) offenses, put the defendant’s fingerprint on the court order, and
• send the sentencing order and all of the supporting documents to the Department of Corrections.[3]

4. What evidence can reduce a sentence?

Any evidence relevant to the case, including hearsay, can be introduced during the presentencing hearing to show that the defendant should be sentenced lightly.[4]

Under Arizona criminal law, there are 6 types of evidence that can mitigate a sentence:

1. the age of the defendant,
2. the defendant’s inability to appreciate of the wrongfulness of his or her conduct or to comport with the law’s requirements,
3. any substantial or unusual duress on the defendant at the time of the offense,
4. the size of the defendant’s role in the commission of the offense,
5. whether the defendant stopped to help the victim, if the offense is related to a car accident, like DUI, and
6. any other evidence related to the defendant’s character or background, or to the circumstances of the offense.[5]

This last type of mitigating evidence can take a lot of different forms, including:

• remorse,
• regret,
• the defendant’s strong ties to the community,
• family support and obligations, and
• acceptance of responsibility.

5. What will lengthen it?

Arizona law, in A.R.S. 13-701(D), recognizes 27 aggravating factors that could lengthen a prison sentence. Some of these are:

• the defendant paid someone else, or was paid by someone else, to commit the crime,
• a deadly weapon or dangerous instrument was used during the offense,
• the victim was 65 years old or older, or had a disability,
• during the offense, the defendant impersonated a police officer, and
• a mask was used to hide the defendant’s identity.[6]

Unlike for mitigating factors, prosecutors can only present evidence of the aggravating factors named by statute. According to the Supreme Court, using a new aggravating factor to lengthen a prison sentence can violate a defendant’s Due Process rights.^[7]

In order to lengthen a sentence, prosecutors have to prove at least one aggravating factor to the jury beyond a reasonable doubt, or the defendant has to admit to one in their guilty plea.[8] If the defendant waives his or her right to a jury trial, the factor has to be proven to a judge beyond a reasonable doubt.[9] Once the first aggravating factor has been proven, the judge has the discretion to impose the maximum sentence.[10] Additional aggravating factors need only be proven by a preponderance of the evidence to the judge at the presentencing hearing.[11]

6. What is a presentencing report?

The presentencing report is one of the pieces of evidence that a court will consider during the presentencing hearing. It is compiled by probation officers and screeners. It consists of:

• information about the case and the defendant,
• victim impact statements,
• an assessment of the defendant’s risk, and
• a sentencing recommendation.

The Superior Court is required to order a presentence report whenever it has to make a sentencing determination, unless:

• the defendant cannot be sent to prison for a year or more,
• the defendant requests an expedited sentence under, or
• there is already a presentence report for the defendant, often from another criminal case.[12]

[1] ARS 13-702.

[2] Arizona Rules of Criminal Procedure 26.10.

[3] Arizona Rules of Criminal Procedure 26.10(b).

[4] Arizona Rules of Criminal Procedure 26.7.

[5] ARS 13-701(E).

[6] ARS 13-701(D).

[7] Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) and State v. Schmidt, 220 Ariz. 563 (Ariz. 2009).

[8] Blakely v. Washington, 124 S.Ct. 2531 (2004) and State v. Brown, 209 Ariz. 200 (Ariz. 2004).

[9] ARS 13-701(J).

[10] ARS 13-701(C).

[11] ARS 13-701(F) and State v. Martinez, 210 Ariz. 578 (Ariz. 2005).

[12] Arizona Rules of Criminal Procedure 26.4(a) and 26.3(a)(1)(B).