Last week the jury returned its verdict in the Baby Gabriel case. While the case centered on the disappearance of a nine month old baby, who has not been seen since December 2009, this wasn’t a murder or child abuse case. The conviction was for forgery and conspiracy to commit custodial interference. The forgery consisted of signing a relative’s name on a document challenging the paternity of the father of the child; the conspiracy involved acting in concert with the baby’s mother, again to deprive the father of his paternal rights.

If you’ve read any accounts of the trial, or seen them on TV, you probably heard that when the verdict was returned, the jury also determined that there were “aggravating factors” to be taken into account during sentencing. In this case, these factors were (1) the infliction of emotional harm and (2) working with an accomplice.

How Does Sentencing Work in Arizona?

If you are convicted of a crime in Arizona, there are numerous issues which impact what your sentence will be. While we don’t have time to give you all the details, here is a list of the basic items that go into the sentencing decision:

  • Misdemeanor or Felony – The primary distinction in criminal cases is between misdemeanors and felonies. Felonies are generally more serious offenses, although there are so many factors that go into a sentencing decision, so that in some cases a felony conviction may result in a less severe sentence than for a misdemeanor.
  • Class of the Offense – Each offense is classed according, generally, to the severity with which society punishes violators. There are six classes of felonies, and three classes of misdemeanors (plus a class for “petty offenses”).
  • Serious, Violent and Aggravated Offenses – In addition to classifying offenses as felonies or misdemeanors, there are serious, violent and aggravated offenses. These include dangerous crimes (see below) against children, sexual assault, as well as murder, manslaughter, first degree burglary, arson of an occupied structure, and a number of other crimes.
  • Dangerous and Non-Dangerous Offenses – Certain offenses, either because of their effect, or because of facts in the particular case, are considered “dangerous,” and therefore are treated more severely in sentencing. These include crimes where a serious physical injury is intentionally inflicted on a victim, and crimes where a weapon is used.
  • Drug Crimes – Drug Offenses are treated differently than other crimes for purposes of sentencing in that the sentence is dependent upon factors specific to drug offenses. These factors include, but are not limited to, the particular drug in question and the amount of the drug involved.
  • Other Factors – We have not attempted to give you an exhaustive list of all the considerations that go into a sentencing decision, but the above list captures the more important distinctions. Additional factors include your prior criminal history, whether the crime is an aggravated offense (not to be confused with aggravating factors) such as aggravated assault, aggravated DUI, etc., as well as whether you are considered a “repetitive” offender. Repetitive offenders are those who are convicted of two felonies, committed at different times, but which are consolidated and tried in the same case. Repetitive offenders are further sub-classified into categories one, two and three.

Finally, there are “aggravating” and “mitigating” factors, which brings us back to the Baby Gabriel case.

How Do Aggravating Factors Affect Sentencing?

Mitigating factors (which lead to a lower minimum sentence) include, among others things, the age of a defendant and the level of his or her participation in the crime. The latter issue involves issues such as whether the defendant was a minor participant or, let’s say, the ringleader in the commission of a crime. There are a number of possible aggravating factors applicable to sentencing, such as, the infliction of harm, the use of a weapon, the commission of a crime in a “depraved” manner, the involvement of an accomplice, etc.

The two crimes of which the defendant in the case was convicted were forgery and conspiracy. Forgery is generally a class 4 felony, unless the forgery involves obtaining access (through purchase or lease) of a dwelling used to facilitate smuggling of human beings, in which case it is a class 3 felony. Conspiracy is the act of agreeing with at least one other person to commit an offense, and is complete with the performance of an overt act in furtherance of the plan. The classification of conspiracy depends upon the offense that is the subject of the agreement.

In the Baby Gabriel case, both offenses were class 4 felonies. They are not considered dangerous felonies, they are not drug crimes, nor are they defined as serious, violent or aggravated felonies. The sentencing range, other things being equal, is between 1.5 and 3 years in prison, with a presumptive sentence of 2.5 years. The sentencing guidelines provide, however, that the sentencing range will be different if there are at least two aggravating or mitigating factors. In the case of mitigating factors, the minimum jail time drops to one year. But in the case of aggravating factors, the maximum is increased to 3.75 years. Since the jury found at least two aggravating factors, the sentencing range on each charge will be 1.5 to 3.75 years.

This is really just another lesson in how complicated the criminal laws are. And we haven’t even considered issues such as parole or probation. If you have been charged with a crime, you need an experienced Phoenix criminal lawyer to protect your rights.

Law Offices of David A. Black
40 North Central Avenue #1850
Phoenix, AZ 85004
(480) 280-8028


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