Stacking charges, or what can be perceived as “combining charges,” occurs when a prosecutor treats separate offenses as prior convictions to treat a defendant as a repeat offender even if he or she does not have any prior convictions. Repeat felony offenders face enhanced sentencing in Arizona as compared to first-time offenders for the same offenses.
If a prosecutor can prove that the offenses were committed at separate times, the defendant may be sentenced more harshly than others.
For example, if someone is charged with three burglaries on subsequent days and is prosecuted for them in a single trial, he or she may be treated as a repeat offender if the prosecutor is stacking charges and is able to prove all three criminal charges beyond a reasonable doubt.
Why Stacking Charges is a Real Problem
Prosecutors often use charge stacking as a way to convince defendants to accept plea offers that might otherwise be unfavorable. For example, a prosecutor might tell a defendant that he or she will ask for an enhanced sentence if the defendant takes the case against him or her to trial. This might happen even when it is unclear that the offenses would normally be considered separate.
Because the defendant might be frightened at the prospect of facing a potentially lengthy prison sentence, he or she may feel like there is no other choice than to accept the plea offer.
The Proposed Initiative and Bill that Failed
A proposed ballot initiative called the Second Chance Act failed to meet the signature requirements to make the November 2020 ballot. It would have ended the practice of charge stacking and was opposed by criminal prosecutors.
In 2019, Gov. Ducey vetoed a similar bill that passed both houses of the state legislature. This means that charge stacking continues to be a real problem within the criminal justice system in Arizona.
The Difference between “Stacking Charges” and “Piling On”
Many people confuse “stacking charges” with “piling on”, which is a separate tactic commonly used by Arizona prosecutors. When a prosecutor piles on charges, he or she charges a criminal defendant with every potential charge that could result from a single action by a defendant to try to get him or her to plead guilty to one or more of the charges.
Piling on charges is legal if each crime has an element that differs from the others that are charged.
For example, if someone gets into a drunken argument with a girlfriend at a lake, pushes her, and then takes her car and drives away, leaving her stranded, he might face multiple charges if the girlfriend calls the police. The person might face charges of drunk driving, car theft, public intoxication, assault, and other offenses.
While it is possible that some of these charges might result in a conviction, the fact that the defendant is charged with so many different offenses might make him or her feel that he or she has no choice other than to accept a plea offer. A large number of charges increases the likelihood that a defendant may be convicted of one or more of the individual offenses at trial.
By contrast, charge stacking might occur when the offenses occur at separate times but actually occur in a single ongoing incident.
For example, if a person assaults his or her roommate, takes his or her car without permission, has illegal drugs in his pocket, and there is a gun in the vehicle at the time of his or her arrest, the prosecutor might charge him or her with felony assault, vehicular theft, drug possession, and weapon possession. The assault and vehicle theft might be treated as separate or prior felony offenses so that the prosecutor can calculate the total sentence to include the enhancement for repeat offenders.
When an experienced criminal defense attorney reviews the case, he or she will likely see that most of the charges would not likely result in a conviction and that some of the offenses should not be charged as felony offenses, a criminal defendant may feel overwhelmed by the number of different charges and the potential to receive an enhanced sentence as a repeat offender.
It will take the help of an experienced defense lawyer to refute each charge individually and to argue that the sentencing enhancement is inappropriate in the given situation.
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Charge Stacking Leads to Increased Sentences
When a prosecutor stacks charges to seek enhanced penalties for repeat offenders, it can greatly increase the sentence that a defendant might receive if he or she goes to trial and is found guilty. In some cases, a defendant might be given a sentence that is three or four times longer than the sentence that was offered in a plea deal.
This result can sometimes be seen in cases that are reported in the news. You might learn that co-defendants who entered guilty pleas received sentences of 10 years while the person who went to trial received a sentence of 40 years because of charge stacking.
While this is a common practice used by prosecutors, charge stacking and piling on results in gross sentencing disparities and has the effect of punishing defendants who fight their charges through trials.
Enhanced Sentencing in Arizona
In Arizona, many of the state’s enhanced sentencing statutes were passed in 1978. The differences between the sentences of first-time felony offenders and repeat offenders are stark.
For example, the presumptive sentence for a first-time felony offender for a class 2 felony is five years in prison. If the person is treated as a repeat offender for a third class 2 felony because of charge stacking, the presumptive sentence will be 9.25 years.
If he or she is treated as a repeat offender because of charge stacking for a fourth offense, the presumptive sentence will be 15.75 years in prison.
In the case of Bordenkircher v. Hayes, 434 U.S. 357, The Supreme Court of the United States considered whether a prosecutor’s threat to pursue enhanced sentencing during plea bargain was unconstitutional. The Supreme Court held that it was not as long as the threat to pursue a longer sentence if the case went to trial was included in the charging document.
In that case, the defendant was offered a five-year sentence in a plea offer and was threatened with a life sentence if he went to trial. The defendant went to trial, was convicted, and received a life sentence as a repeat offender.
Defense Attorney Arja Shah to Defend Against Stacking Charges
If you are facing multiple felony criminal charges and have been threatened by the prosecutor with enhanced sentencing, you should talk to an experienced criminal defense lawyer at the Shah Law Firm as soon as possible.
We can review the facts and circumstances to determine whether the individual felony charges are warranted and work to build evidence to refute each one. Your attorney might be able to present evidence that everything fell into a single incident and that enhanced penalties are not warranted.
Working with an experienced defense lawyer might help you to get some of your charges dismissed so that you can secure a more favorable outcome to your case.