HB2361 - 541R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 12-2703, Arizona Revised Statutes, is amended to read:

START_STATUTE12-2703. Scope of remedies; violation; classification

A. It is unlawful for any person to render for compensation any service constituting the unauthorized practice of immigration and nationality law or to otherwise violate this chapter.

B. A person having an interest or right that is or may be adversely affected under this chapter may initiate an action for civil remedies. The provisions of this article are in addition to all other causes of action, remedies and penalties that are available in this state.

C. The attorney general shall initiate appropriate proceedings to prevent or to stop violations of this chapter.

D. Section 13‑703, subsection A does not apply for the purpose of enhancing the sentence of a person who is convicted of two or more offenses under this section.

E. D. A person who violates this chapter is guilty of a class 6 felony. END_STATUTE

Sec. 2. Section 13-701, Arizona Revised Statutes, is amended to read:

START_STATUTE13-701. Sentence of imprisonment for felony; presentence report; aggravating and mitigating factors; consecutive terms of imprisonment; definition

A. A sentence of imprisonment for a felony shall be a definite term of years and the person sentenced, unless otherwise provided by law, shall be committed to the custody of the state department of corrections.

B. No prisoner may be transferred to the custody of the state department of corrections without a certified copy of the judgment and sentence, signed by the sentencing judge, and a copy of a recent presentence investigation report unless the court has waived preparation of the report.

C. The minimum or maximum term imposed pursuant to section 13‑702, 13‑703, 13‑704, 13‑705, 13‑708, 13‑710, 13‑1406, or 13‑3212 or 13‑3419 may be imposed only if one or more of the circumstances alleged to be in aggravation of the crime are found to be true by the trier of fact beyond a reasonable doubt or are admitted by the defendant, except that an alleged aggravating circumstance under subsection D, paragraph 11 of this section shall be found to be true by the court, or in mitigation of the crime are found to be true by the court, on any evidence or information introduced or submitted to the court or the trier of fact before sentencing or any evidence presented at trial, and factual findings and reasons in support of such findings are set forth on the record at the time of sentencing.

D. For the purpose of determining the sentence pursuant to subsection C of this section, the trier of fact shall determine and the court shall consider the following aggravating circumstances, except that the court shall determine an aggravating circumstance under paragraph 11 of this subsection:

1. Infliction or threatened infliction of serious physical injury, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment under section 13‑704.

2. Use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment under section 13‑704.

3. If the offense involves the taking of or damage to property, the value of the property taken or damaged.

4. Presence of an accomplice.

5. Especially heinous, cruel or depraved manner in which the offense was committed.

6. The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.

7. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.

8. At the time of the commission of the offense, the defendant was a public servant and the offense involved conduct directly related to the defendant's office or employment.

9. The victim or, if the victim has died as a result of the conduct of the defendant, the victim's immediate family suffered physical, emotional or financial harm.

10. During the course of the commission of the offense, the death of an unborn child at any stage of its development occurred.

11. The defendant was previously convicted of a felony within the ten years immediately preceding the date of the offense. A conviction outside the jurisdiction of this state for an offense that if committed in this state would be punishable as a felony is a felony conviction for the purposes of this paragraph.

12. The defendant was wearing body armor as defined in section 13‑3116.

13. The victim of the offense is at least sixty‑five years of age or is a person with a disability as defined in section 38‑492, subsection B.

14. The defendant was appointed pursuant to title 14 as a fiduciary and the offense involved conduct directly related to the defendant's duties to the victim as fiduciary.

15. Evidence that the defendant committed the crime out of malice toward a victim because of the victim's identity in a group listed in section 41‑1750, subsection A, paragraph 3 or because of the defendant's perception of the victim's identity in a group listed in section 41‑1750, subsection A, paragraph 3.

16. The defendant was convicted of a violation of section 13‑1102, section 13‑1103, section 13‑1104, subsection A, paragraph 3 or section 13‑1204, subsection A, paragraph 1 or 2 arising from an act that was committed while driving a motor vehicle and the defendant's alcohol concentration at the time of committing the offense was 0.15 or more. For the purposes of this paragraph, "alcohol concentration" has the same meaning prescribed in section 28‑101.

17. Lying in wait for the victim or ambushing the victim during the commission of any felony.

18. The offense was committed in the presence of a child and any of the circumstances exists that are set forth in section 13‑3601, subsection A.

19. The offense was committed in retaliation for a victim either reporting criminal activity or being involved in an organization, other than a law enforcement agency, that is established for the purpose of reporting or preventing criminal activity.

20. The defendant was impersonating a peace officer as defined in section 1‑215.

21. The defendant was in violation of 8 United States Code section 1323, 1324, 1325, 1326 or 1328 at the time of the commission of the offense.

22. The defendant used a remote stun gun or an authorized remote stun gun in the commission of the offense. For the purposes of this paragraph:

(a) "Authorized remote stun gun" means a remote stun gun that has all of the following:

(i) An electrical discharge that is less than one hundred thousand volts and less than nine joules of energy per pulse.

(ii) A serial or identification number on all projectiles that are discharged from the remote stun gun.

(iii) An identification and tracking system that, on deployment of remote electrodes, disperses coded material that is traceable to the purchaser through records that are kept by the manufacturer on all remote stun guns and all individual cartridges sold.

(iv) A training program that is offered by the manufacturer.

(b) "Remote stun gun" means an electronic device that emits an electrical charge and that is designed and primarily employed to incapacitate a person or animal either through contact with electrodes on the device itself or remotely through wired probes that are attached to the device or through a spark, plasma, ionization or other conductive means emitting from the device.

23. During or immediately following the commission of the offense, the defendant committed a violation of section 28‑661, 28‑662 or 28‑663.

24. The defendant was convicted of a violation of section 13‑1307 or 13‑1308 or section 13‑3212, subsection A, paragraph 9 or 10 and the defendant recruited, enticed or obtained the victim from a shelter that is designed to serve runaway youth, foster children, homeless persons or victims of human trafficking, domestic violence or sexual assault.

25. The defendant was convicted of a violation of section 13‑1204 and there is evidence that the defendant committed the crime out of malice toward a victim because of the victim's employment as a peace officer.

26. During or immediately following the commission of the offense, the defendant used a mask or other disguise to obscure the defendant's face to avoid identification.

27. 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.

E. For the purpose of determining the sentence pursuant to subsection C of this section, the court shall consider the following mitigating circumstances:

1. The age of the defendant.

2. The defendant's capacity to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.

3. The defendant was under unusual or substantial duress, although not to a degree that would constitute a defense to prosecution.

4. The degree of the defendant's participation in the crime was minor, although not so minor as to constitute a defense to prosecution.

5. During or immediately following the commission of the offense, the defendant complied with all duties imposed under sections 28‑661, 28‑662 and 28‑663.

6. Any other factor that is relevant to the defendant's character or background or to the nature or circumstances of the crime and that the court finds to be mitigating.

F. If the trier of fact finds at least one aggravating circumstance, the trial court may find by a preponderance of the evidence additional aggravating circumstances. In determining what sentence to impose, the court shall take into account the amount of aggravating circumstances and whether the amount of mitigating circumstances is sufficiently substantial to justify the lesser term. If the trier of fact finds aggravating circumstances and the court does not find any mitigating circumstances, the court shall impose an aggravated sentence.

G. The court in imposing a sentence shall consider the evidence and opinions presented by the victim or the victim's immediate family at any aggravation or mitigation proceeding or in the presentence report.

H. This section does not affect any provision of law that imposes the death penalty, that expressly provides for imprisonment for life or that authorizes or restricts the granting of probation and suspending the execution of sentence.

I. The intentional failure by the court to impose the mandatory sentences or probation conditions provided in this title is malfeasance.

J. For the purposes of this section, "trier of fact" means a jury, unless the defendant and the state waive a jury in which case the trier of fact means the court. END_STATUTE

Sec. 3. Section 13-703, Arizona Revised Statutes, is amended to read:

START_STATUTE13-703. Repetitive offenders; sentencing

A. If a person is convicted of multiple felony offenses that were not committed on the same occasion but that either are consolidated for trial purposes or are not historical prior felony convictions, the person shall be sentenced as a first time felony offender pursuant to section 13‑702 for the first offense, as a category one repetitive offender for the second offense, and as a category two repetitive offender for the third and subsequent offenses.

B. A. Except as provided in section 13‑704 or 13‑705, a person shall be sentenced as a category two one repetitive offender if the person is at least eighteen years of age or has been tried as an adult and stands convicted of a felony and has one historical prior felony conviction.

C. B. Except as provided in section 13‑704 or 13‑705, a person shall be sentenced as a category three two repetitive offender if the person is at least eighteen years of age or has been tried as an adult and stands convicted of a felony and has two or more historical prior felony convictions.

D. C. The presumptive term set by this section may be aggravated or mitigated within the range under this section pursuant to section 13‑701, subsections C, D and E.

E. If a person is sentenced as a category one repetitive offender pursuant to subsection A of this section and if at least two aggravating circumstances listed in section 13‑701, subsection D apply or at least two mitigating circumstances listed in section 13‑701, subsection E apply, the court may impose a mitigated or aggravated sentence pursuant to subsection H of this section.

F. D. If a person is sentenced as a category two one repetitive offender pursuant to subsection A or B of this section and if at least two aggravating circumstances listed in section 13‑701, subsection D apply or at least two mitigating circumstances listed in section 13‑701, subsection E apply, the court may impose a mitigated or aggravated sentence pursuant to subsection I F of this section.

G. E. If a person is sentenced as a category three two repetitive offender pursuant to subsection C B of this section and at least two aggravating circumstances listed in section 13‑701, subsection D or at least two mitigating circumstances listed in section 13‑701, subsection E apply, the court may impose a mitigated or aggravated sentence pursuant to subsection J G of this section.

H. A category one repetitive offender shall be sentenced within the following ranges:

Felony Mitigated Minimum Presumptive Maximum Aggravated

Class 2 3 years 4 years 5 years 10 years 12.5 years

Class 3 2 years 2.5 years 3.5 years 7 years 8.75 years

Class 4 1 year 1.5 years 2.5 years 3 years 3.75 years

Class 5 .5 years .75 years 1.5 years 2 years 2.5 years

Class 6 .25 years .5 years 1 year 1.5 years 2 years

I. F. A category two one repetitive offender shall be sentenced within the following ranges:

Felony Mitigated Minimum Presumptive Maximum Aggravated

Class 2 4.5 years 6 years 9.25 years 18.5 years 23 years

Class 3 3.25 years 4.5 years 6.5 years 13 years 16.25 years

Class 4 2.25 years 3 years 4.5 years 6 years 7.5 years

Class 5 1 year 1.5 years 2.25 years 3 years 3.75 years

Class 6 .75 years 1 year 1.75 years 2.25 years 2.75 years

J. G. A category three two repetitive offender shall be sentenced within the following ranges:

Felony Mitigated Minimum Presumptive Maximum Aggravated

Class 2 10.5 years 14 years 15.75 years 28 years 35 years

Class 3 7.5 years 10 years 11.25 years 20 years 25 years

Class 4 6 years 8 years 10 years 12 years 15 years

Class 5 3 years 4 years 5 years 6 years 7.5 years

Class 6 2.25 years 3 years 3.75 years 4.5 years 5.75 years

K. H. The aggravated or mitigated term imposed pursuant to subsection H, I or J F or G of this section may be imposed only if at least two of the aggravating circumstances are found beyond a reasonable doubt to be true by the trier of fact or are admitted by the defendant, except that an aggravating circumstance under section 13‑701, subsection D, paragraph 11 shall be found to be true by the court, or in mitigation of the crime are found to be true by the court, on any evidence or information introduced or submitted to the court or the trier of fact before sentencing or any evidence presented at trial, and factual findings and reasons in support of these findings are set forth on the record at the time of sentencing.

L. I. Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for the purposes of subsections A and B and C of this section.

M. J. A person who has been convicted in any court outside the jurisdiction of this state of an offense that was punishable by that jurisdiction as a felony is subject to this section. A person who has been convicted as an adult of an offense punishable as a felony under the provisions of any prior code in this state or the jurisdiction in which the offense was committed is subject to this section. A person who has been convicted of a felony weapons possession violation in any court outside the jurisdiction of this state that would not be punishable as a felony under the laws of this state is not subject to this section.

N. K. The penalties prescribed by this section shall be substituted for the penalties otherwise authorized by law if an allegation of a historical prior felony conviction is charged in the indictment or information and admitted or found by the court. The penalties prescribed by this section for a historical prior felony conviction may be used only if the person was convicted of and sentenced for the historical prior felony conviction before the person committed the present offense. The release provisions prescribed by this section shall not be substituted for any penalties required by the substantive offense or a provision of law that specifies a later release or completion of the sentence imposed before release. The court shall allow the allegation of a historical prior felony conviction at any time before the date the case is actually tried unless the allegation is filed fewer than twenty days before the case is actually tried and the court finds on the record that the person was in fact prejudiced by the untimely filing and states the reasons for these findings. If the allegation of a historical prior felony conviction is filed, the state must make available to the person a copy of any material or information obtained concerning the historical prior felony conviction. The charge of previous conviction shall not be read to the jury. For the purposes of this subsection, "substantive offense" means the felony offense that the trier of fact found beyond a reasonable doubt the person committed. Substantive offense does not include allegations that, if proven, would enhance the sentence of imprisonment or fine to which the person otherwise would be subject.

O. L. A person who is sentenced pursuant to this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis, except as specifically authorized by section 31‑233, subsection A or B, until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.

P. M. The court shall inform all of the parties before sentencing occurs of its intent to impose an aggravated or mitigated sentence pursuant to subsection H, I or J F or G of this section. If the court fails to inform the parties, a party waives its right to be informed unless the party timely objects at the time of sentencing.

Q. N. The court in imposing a sentence shall consider the evidence and opinions presented by the victim or the victim's immediate family at any aggravation or mitigation proceeding or in the presentence report. END_STATUTE

Sec. 4. Repeal

Section 13-3419, Arizona Revised Statutes, is repealed.

Sec. 5. Section 41-1604.10, Arizona Revised Statutes, is amended to read:

START_STATUTE41-1604.10. Earned release credits; forfeiture; restoration; applicability

A. Each prisoner classified as parole eligible, class one, pursuant to section 41‑1604.09, shall be allowed the following release credits:

1. If sentenced on a first conviction other than pursuant to section 13‑751 or other than for a felony involving a dangerous offense as defined in section 13‑105, every two days served within class one shall be counted as an earned release credit of one day.

2. If sentenced pursuant to section 13‑703, subsection B A or on first conviction of a class 4, 5 or 6 felony involving a dangerous offense as defined in section 13‑105 or any other provisions provision of law that prohibits release on any basis until serving not less than one‑half the sentence imposed by the court, every two days served within class one shall be counted as an earned release credit of one day.

3. If sentenced pursuant to any other provision of section 13‑703, section 13‑704, subsection A, B, C, D or E, section 13‑706, subsection A or section 13‑708, subsection D or any other provision of law that prohibits release on any basis until serving not less than two‑thirds the sentence imposed by the court, every three days served within class one shall be counted as an earned release credit of one day.

B. Release credits earned by a prisoner pursuant to subsection A of this section shall not reduce the term of imprisonment imposed by the court on such prisoner, nor reduce the sentence imposed on the prisoner for the purpose of determining such prisoner's parole eligibility.

C. On reclassification of a prisoner resulting from the prisoner's failure to adhere to the rules of the department or failure to demonstrate a continual willingness to volunteer for or successfully participate in a work, educational, treatment or training program, the director may declare any and all release credits earned by the prisoner forfeited. In the discretion of the director the release credits may subsequently be restored. The director shall maintain an account of release credits earned by each prisoner.

D. The director, according to rules adopted by the department, may authorize the release of any prisoner who has earned release credits that, when added to the time served by the prisoner, equal the sentence imposed by the court which shall be the prisoner's earned release credit date. A prisoner on earned release credit release is not under the control of the department and the department is not required to provide parole services or otherwise supervise any prisoner released, except that the department may revoke the release of the prisoner until the final expiration of the prisoner's sentence if the department has reason to believe that the released prisoner has engaged in criminal conduct during the term of release. If a prisoner has a term of probation to be completed or served, the probation department shall begin supervision of the prisoner when the prisoner is released on the earned release credit date. If the prisoner's term of probation equals or exceeds the prisoner's final expiration date, the director of the state department of corrections shall issue the prisoner an absolute discharge on the prisoner's earned release credit date. The prisoner is not under the control of the department and the department is not required to provide parole services or otherwise supervise the prisoner. If the prisoner's term of probation is less than the prisoner's final expiration date, the prisoner is not under the control of the department and the department is not required to provide parole services or otherwise supervise the prisoner, except that the department may revoke the release at any time between the earned release credit date and the final expiration date if the department has reason to believe that the released prisoner has engaged in criminal conduct during the term of release. The director may issue the prisoner an absolute discharge from the sentence of imprisonment if it appears that the prisoner will live and remain at liberty without violating the law and it is in the best interest of the state. The state department of corrections shall provide reasonable notice to the probation department of the scheduled release of the prisoner from confinement by the state department of corrections.

E. A prisoner shall forfeit five days of the prisoner's earned release credits if the court finds or a disciplinary hearing held after a review by and recommendations from the attorney general's office determines that the prisoner does any of the following:

1. Brings a claim without substantial justification.

2. Unreasonably expands or delays a proceeding.

3. Testifies falsely or otherwise presents false information or material to the court.

4. Submits a claim that is intended solely to harass the party it is filed against.

F. If the prisoner does not have five days of earned release credits, the prisoner shall forfeit the prisoner's existing earned release credits and be ineligible from accruing earned release credits until the number of earned release credits the prisoner would have otherwise accrued equals the difference between five days and the number of existing earned release credit days the prisoner forfeits pursuant to this section.

G. This section applies only to persons who commit felonies before January 1, 1994. END_STATUTE