2018 Arkansas Code
Title 16 - Practice, Procedure, and Courts
Subtitle 6 - Criminal Procedure Generally
Chapter 90 - Judgment and Sentence Generally
Subchapter 8 - Sentencing Guidelines
§ 16-90-804. Departures from the voluntary presumptive sentence range.

(a) (1) At a bench trial, a court may depart from the voluntary presumptive sentence range determined under § 16-90-803 in reliance on one (1) or more aggravating factors by providing a justification in the record of:

• (A) A listing of the charges and sentencing enhancements against the offender as set out in the first charging instrument as well as any additional charges or sentence enhancements subsequently added in the case, if any; and

• (B) A thorough recitation of the facts underlying the departure from the voluntary presumptive sentence range under § 16-90-803.

  • (2)

    • (A) The justification regarding an aggravating factor shall be entered into the sentencing order.

    • (B) The sentencing order shall also reflect whether the sentence is the result of an original charge or whether an original charge was nolle prosequi.

(b) (1) (A) When sentencing is done by the court following a trial before the court, either party or both parties may present evidence to justify a departure from the voluntary presumptive sentence range determined under § 16-90-803.

• (B) The court may allow argument either during the sentencing phase of a trial or at a separate hearing on the matter of departing from the voluntary presumptive sentence range determined under § 16-90-803 if the court finds that argument would be helpful.

• (C)

  • (i) When sentencing is done by the court following the entry of a plea of guilty, nolo contendere, or a negotiated plea of guilty, the court shall enter the sentence on the record.

  • (ii) After the court enters the sentence on the record under subdivision (b)(1)(C)(i) of this section, the prosecuting attorney shall provide in writing the credible reasons for a departure from the voluntary presumptive sentence range, if a departure from the voluntary presumptive sentence range is applicable.

    • (2)

      • (A) If both parties agree on a recommended sentence, the court may choose to accept or reject the agreement based upon the facts of the case and whether the facts support the voluntary presumptive sentence range determined under § 16-90-803 or a departure different from any recommendation.

      • (B)

        • (i) If there is an agreed departure from the voluntary presumptive sentence range under § 16-90-803, the parties shall supply written reasons to the court to attach to the sentencing order and to report to the Arkansas Sentencing Commission.

        • (ii) The written reasons required under subdivision (b)(2)(B)(i) of this section shall include:

          • (a) A listing of the charges and sentencing enhancements against the offender as they were set out in the first charging instrument as well as any additional charges or sentence enhancements subsequently added in the case, if any; and

          • (b) A thorough recitation of the facts underlying the departure from the presumptive sentence range under § 16-90-803.

      • (C) If the court rejects the agreement under subdivision (b)(2)(A) of this section, the offender shall be allowed to withdraw his or her plea.

(c) The following is a nonexclusive list of mitigating factors that may be considered as a reason or reasons for departure from the voluntary presumptive sentence range under § 16-90-803:

• (1) While falling short of a defense, the victim played an aggressive role in the incident or provoked or willingly participated in the incident;

• (2) The offender played a minor or passive role in the commission of the current offense;

• (3) Before detection, the offender compensated or made a good faith effort to compensate the victim for any damage or injury sustained by the victim;

• (4) The current offense was principally accomplished by another person, and the offender manifested extreme caution or sincere concern for the safety or well-being of the victim;

• (5) The offender or the offender's children suffered a continuing pattern of physical or sexual abuse by the victim of the current offense, and the current offense is a response to the physical or sexual abuse;

• (6) The inclusion of multiple offenses in calculating the voluntary presumptive sentence range under § 16-90-803 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter;

• (7) If the current offense is a sexual offense, before detection in the sexual offense, the offender has voluntarily admitted the nature and extent of the sexual offense and has sought and participated in professional treatment or counseling for the sexual offense;

• (8) Upon motion of the state stating that the offender has made a good faith effort to provide substantial assistance to the investigation or prosecution of another person who has committed an offense, the circumstances listed below may be weighed as mitigating factors with respect to the offender's offense:

  • (A) The timeliness of the offender's assistance;

  • (B) The nature and extent of the offender's assistance; and

  • (C) The truthfulness, completeness, and demonstrable reliability of any information or testimony provided by the offender; and

• (9)

  • (A) Any other compelling reason.

  • (B) If any other compelling reason is used as a mitigating factor under this subsection, additional details regarding the negotiated plea, if applicable, and why the sentence was a downward departure from the voluntary presumptive sentence shall be included.

(d) The following is a nonexclusive list of aggravating factors that may be considered as a reason or reasons for departure from the voluntary presumptive sentence range determined under § 16-90-803:

• (1) The offender's conduct during the commission of the current offense manifested deliberate cruelty to the victim exhibited by degrading, gratuitous, vicious, torturous, and demeaning physical or verbal abuse, unusual pain, or violence in excess of that necessary to accomplish the criminal purpose;

• (2) The offender knew or should have known that the victim was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health;

• (3) The current offense was a major economic offense or series of offenses, as identified by a consideration of any of the following factors:

  • (A) The current offense involved multiple victims or multiple incidents per victim;

  • (B) The current offense involved attempted or actual monetary loss substantially greater than typical for the offense;

  • (C) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time;

  • (D)

    • (i) The offender used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense.

    • (ii) The factor described under subdivision (d)(3)(D)(i) of this section does not apply if it constitutes an element of the current offense; or

  • (E) The offender has been involved in other conduct similar to the current offense as evidenced by the findings of civil or administrative law proceedings or the imposition of professional sanctions;

• (4)

  • (A) The current offense was a major controlled substance offense, identified as an offense or series of offenses related to trafficking in controlled substances under circumstances more onerous than the usual controlled substance offense.

  • (B) The presence of two (2) or more of the following circumstances is an aggravating factor with respect to the current offense:

    • (i) The current offense involved at least three (3) separate transactions in which controlled substances were sold, transferred, or possessed with a purpose to sell or transfer the controlled substance;

    • (ii) The current offense involved an attempted or actual sale or transfer of a controlled substance in an amount substantially larger than the statutory minimum that defines the current offense;

    • (iii) The current offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement;

    • (iv) The circumstances of the current offense reveal the offender to have occupied a high position in the drug distribution hierarchy;

    • (v) The offender used his or her position or status to facilitate the commission of the current offense, including without limitation positions of trust, confidence, or fiduciary relationships, such as a pharmacist, physician, or other medical professional; or

    • (vi) The offender has received substantial income or resources from his or her involvement in trafficking a controlled substance;

• (5)

  • (A) The current offense is a felony and the offender employed a firearm in the course of or in furtherance of the felony or in immediate flight from the felony.

  • (B) The factor described under subdivision (d)(5)(A) of this section does not apply to an offender convicted of a felony, an element of which is:

    • (i) Employing or using, or threatening or attempting to employ or use, a deadly weapon;

    • (ii) Being armed with a deadly weapon;

    • (iii) Possessing a deadly weapon;

    • (iv) Furnishing a deadly weapon; or

    • (v) Carrying a deadly weapon;

• (6) The current offense was a sexual offense and was part of a pattern of criminal behavior with the same or different victims under eighteen (18) years of age manifested by multiple incidents over a prolonged period of time;

• (7) The inclusion of multiple offenses in calculating the voluntary presumptive sentence range under § 16-90-803 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter;

• (8) The current offense was committed in a manner that exposed risk of injury to persons other than the victim or victims, including without limitation shooting a firearm into a crowd of people;

• (9) The current offense was a violent or sexual offense committed in the victim's zone of privacy, including without limitation the victim's home or the curtilage of the victim's home;

• (10) The offender attempted to cover or conceal the current offense by intimidation of witnesses, destruction or tampering with evidence, or purposely misleading authorities;

• (11) The current offense was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody;

• (12) If the current offense is related to a vehicular homicide, the offender did not have the minimum insurance required by law; and

• (13)

  • (A) Any other compelling reason.

  • (B) If any other compelling reason is used as an aggravating factor under this subsection, additional details regarding the negotiated plea, if applicable, and why the sentence was an upward departure from the voluntary presumptive sentence shall be included.

(e) This section shall not apply when a jury has recommended a sentence to the trial court.