New Law Makes Wearing Mask or Disguise While Committing a Crime Aggravated Factor in Sentencing

Arizona lawmakers recently passed House Bill 2007 (HB2007), adding an aggravating circumstance to the list of 26 that were previously enumerated in the statute.  The law became effective August 3, 2018.

The newest aggravating circumstance is triggered when a defendant “uses a mask or other disguise to obscure the defendant’s face to avoid detection” during a crime.

To be clear, the new aggravating circumstance doesn’t criminalize wearing a disguise.  Rather, it allows for an increased punishment for those who are convicted of committing a crime, while wearing a mask or disguise.

Opponents of the law expressed concerns that less serious, non-violent offenders may be subject to enhanced penalties because they wore a mask during the conduct giving rise to their arrest.

Prior to finding that the aggravating circumstance exists, a jury must find that the defendant was not only wearing a mask or disguise but also wearing the mask or disguise “to avoid detection.”

This may provide some relief to those who fear the aggravating circumstance would be applied in cases involving non-violent crimes in which a disguise was worn for reasons other than evasion.

The most common crimes that will be impacted are by HB2007 are robbery, and burglary, since masks and disguises are often used in these offenses.

This article includes a discussion of the new aggravated factor law pertaining to masks and disguises, other aggravated and mitigating factors in sentencing; the burden of proof for aggravated factors; examples of aggravated and mitigated factors; sentencing ranges and how penalties are imposed within them; and the role of a criminal defense attorney in the sentencing stage.

What constitutes a mask or disguise?

Currently, no statutory definition exists that describes what constitutes a mask or disguise as it pertains to this law.

Typically when no definition exists under the law, the court will look to the literal definition, or previous case law, that addresses the question based on the facts of the case.

Significant weight will be placed on the intended purpose of the disguise or mask at the time of the criminal offense, for purposes of deciding if A.R.S. – 13-701 (D) (26) applies.

The court will determine if there has been a sufficient showing based on the trier of facts beyond a reasonable doubt, that the disguise was being worn by the defendant in an attempt to avoid detection.

   What is an aggravated factor in sentencing?

An aggravated factor in sentencing is a circumstance surrounding a crime that makes it more serious, calling for more severe penalties.

After a defendant is convicted of a crime, whether by judge or jury trial, or plea agreement, the court will then move on to the sentencing phase.  This is when aggravated and mitigated factors are considered by the court.

Arizona Criminal Code Sentencing Provisions include sentencing ranges for which the judge must sentence the defendant. The judge has the discretion as to what level of penalties to impose following a conviction, as long as they fall within this statutory sentencing range.

A sentencing range is based upon specific classifications of charges. The level of penalties vary depending on the classifications, and type of charges.  In general they include mitigated, minimum, presumptive, maximum, and aggravated.   Mitigated sentences are those that are least severe within the range, and aggravated sentencing holds the harshest of penalties.

For dangerous offenses the levels are minimum, presumptive, and maximum.  More severe penalties are included within the maximum range designation of dangerous offenses.  When aggravated factors exist, the judge will consider imposing the maximum sentence in these cases.

Both dangerous and non-dangerous offenses have additional categories for repeat and historical offenses.

What are some other aggravated factors?

Some examples of aggravated factors under A.R.S. 13-701 (D) include: Displaying, threatening or using a deadly weapon during the crime; The crime involved an accomplice;  The defendant was convicted of a prior felony within 10 years of the current conviction; During the crime the defendant impersonated a police officer; The defendant was paid to commit the crime; Immediately after the crime was committed, the defendant committed a hit and run; and The offense was a hate crime against a law enforcement officer.

The law outlines a list of 27 statutory aggravated factors.  However, the court may consider other aggravating circumstances that are not listed in the law, including the defendant’s character, criminal history or other relevant circumstances.

What proof is needed to impose an aggravated factor?   

In order to admit an aggravated factor in sentencing, the prosecution needs to provide showing beyond a reasonable doubt based on the facts and evidence.

If the aggravated factor  involves prior felony convictions, it will be up to the court to determine the validity of prior convictions based on the information and facts introduced.

The exception to this is if the defendant admits to, or validates the aggravated factor.

What is the difference between a mitigated and aggravated factor?

A mitigated factor is the opposite of an aggravated factor.  Mitigating circumstances are those factors that serve to reduce the penalties.

The judge will weigh the mitigating factors presented against the aggravated factors to determine of aggravated sentencing, or other level of sentencing will apply.

If only aggravated factors were presented, and no mitigating factors existed, the judge will generally impose aggravated sentencing.

If no aggravated factors were presented, and one or more mitigating factors exist, the judge will usually impose a mitigated sentence.

A.R.S. 13-70. (E), lists a total of 6 mitigating factors including such things as age, duress, trivial amount of involvement in the crime.

The court may also consider other relevant mitigating factors not on the statutory list, related to the defendant’s character, background, or history.

 How can a criminal defense attorney help me resolve my charges?

For any person accused of a crime and facing criminal charges, the ideal outcome is to get the charges dismissed.  An effective criminal defense attorney will look for ways to make that happen throughout the criminal justice process. If that is not possible, the prosecution will likely ask you to enter a plea agreement.   If an acceptable resolution cannot be reached, you still have the right to take your case to trial.

A skilled Arizona criminal defense attorney can help you compile compelling mitigation evidence in hopes of receiving a lenient sentence. Judges will normally look at a defendant’s background, including the defendant’s contributions to society as well as their prior convictions, when fashioning a sentence. A judge, however, cannot sentence a defendant to the maximum statutory term without a jury finding that an aggravating circumstance exists. Similarly, a judge must document at least one mitigating circumstance if he intends to sentence the defendant to the minimum allowable statutory sentence.

The prosecution looks for evidence of aggravated factors in sentencing.  However, they are not obligated to help you find or present mitigated factors to offset aggravated factors or reduce your sentence.  This is also the case for presiding judge in that the judge has no obligation to introduce find or introduce mitigated factors to reduce penalties for the defendant. An experienced criminal defense attorney like James Novak will be your voice, look for mitigating circumstances, and provide a showing of the validity of these factors if they are applicable.

If you face felony charges, especially if they involve aggravated circumstances, it is important that you obtain strong criminal defense representation.  James Novak of the Law Office of James Novak, PLLC is an experienced criminal defense attorney, and former prosecutor.   Attorney James Novak provides his clients with upfront and honest advice from the beginning of their case throughout the entire process.  If retained he will protect your rights and defend your charges.

With zealous representation and a keen knowledge of the relevant procedural and substantive laws, Attorney James Novak diligently represents clients in all types of Arizona criminal cases, including Arizona robbery crimes.  James Novak offers a free initial consultation for those who face active charges in Tempe, Mesa, Gilbert, Scottsdale, Chandler, and Phoenix AZ.

To learn more, and to speak with Attorney Novak about how he can help you defend against the charges you are facing, call (480) 413-1499 or complete our contact form on the website site.

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