Appendix — Cassius v. Arizona
Supreme Court brief1974
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ON WRIT OF CERTIORARI TO THE SUPREME COURT
CF THE STATE OF ARIZONA
PETITION FOR CERTIORARI FILED AUG” oF 18, 1974
CERTIORARI GRANTED OCTOBER 15, 1974
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Supreme Court of the United States
OCTOBER TERM, 1974
No. 74-5140
MICHAEL J. CASSIUS,
Petitioner,
|
STATE OF ARIZONA,
Respondent.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF THE STATE OF ARIZONA
INDEX
Page
Chronological List of Relevant Docket Entries ..................... 1
Complaint in Pima County Justice Court Precinct No. 2, Case
No. 33836 (Filed October 18, 1972) -~..................... pete ae 3
Complaint in Pima County Justice Court Precinct No. 2,
Case No. 33907 (filed November 6, 1972) —.......................... 4
Transcript of Record of Grand Jury Proceedings of No-
vember 14, 1972 ............. SPREAD POR RO AR ee de : 5
Indictment in Pima County Superior Court Case No. A-22303
Ce NII Bl BRI oc icask cen cunncqarsatancerentvckanpcxremanmcnass 11
‘Transcripté of Record of Change of Plea Hearing and Trial
Oe RS Ee ask ccs cnciccnccimrenresinninnsinsenesnsapivscsavensentnnnninie 12
Transcript of Record of Sentencing Hearing of January 22,
| | eer ee Wea onl Sr ease asa teat RoE a pea cot aeemengeRe AS 20
ii INDEX
Judgment of Pima County Superior Court in Case No.
22303, Count I (Filed January 22, 1973)
Judgment of Pima County Superior Court in Case No.
A-22303, County II (Filed eameary G3, 1008) ..................
Opinion of the Arizona Court of Appeals (No. 2 CA-CR 331),
Filed November 8, 1973
Order of the Arizona Court of Appeals denying Motion for
Rehearing (Filed December 11, 1973)
Order of the Arizona Suprerre Court granting Petition for
Review, corrected copy, reflecting action taken on January
22, 1974
Order of the Arizona Supreme Court granting leave to de-
fendant te submit additional authorities, reflecting action
me oo Pilcey ie
Opinion of the Arizona Supreme Court (No. 2867-PR ), Filed
April 16, 1974
Order of the Arizona Supreme Court denying Motion for
Rehearing, reflecting action taken on mer Si, 2976 ............
Order of the Supreme Court of the United States granting
Patition for a Writ of Certiorari and Motion for Leave to
Proceed in Forma Pauperis, Filed October 15, 1974
Page
28
26
30
43
44
1
CHRONOLOGICAL LIST OF RELEVANT DOCKET ENTRIES
October 18, 1972—Complaint filed in Pima County, Ari-
zona Justice Court No. 2, charging defendant and an-
other man with burglary of a motor vehicle; defendant
released on his own recognizance.
November 6, 1972—Complaint filed in Pima County, Ari-
zona Justice Court No. 2, charging defendant with
burglarly and committing a felony while on bail or
recognizance on a felony charge; bond set at $2000.
November 14, 1972—Indictment returned charging de-
fendant with burglary and committing a felony while
on bail or recognizance on a felony charge (same case
as complaint filed on November 6, 1972) (A-22303).
December 12, 1972—Indictment returned charging defend-
ant and ancther man with burglary of a motor vehicle
(same case as complaint filed October 18, 1972) (A-
22479).
January 4, 1973—Defendant pleaded guilty to charge of
burglary in Case No. A-22303; was found guilty in
trial on stipulated facts of charge of committing a
felony while on bail or recognizance on a felony charge
(Case No. A-22303); charge in A-22479 is dismissed
on motion of the State.
January 22, 1973—Defendant sentenced to imprisonment
for not less than one nor more than two years on
burglarly charge and to imprisonment for a consecu-
tive term of not less than one nor more than three
years on charge of committing a felony while on bail
or recognizance on a felony charge.
March 21, 1973—Notice of appeal filed.
November 8, 1973—Opinion of the Arizona Court of
Appeals filed, vacating judgment of conviction and
sentence for charge of committing a felony while on
bail or recognizance on a felony charge.
December 11, 1973—Arizona Court of Appeals denied
State’s Motion for Rehearing.
|
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2
January 23, 1974—Arizona Supreme Court granted
State’s Petition for Review.
February 20, 1974—Arizona Supreme Court granted De-
fendant’s Motion for Leave to submit additional writ-
ten argument.
April 16, 1974—Opinion of the Arizona Supreme Court
filed vacating decision of Arizona Court of Appeals and
affirming the judgment and sentence of the trial court.
May 21, 1974—-Arizona Supreme Court denied Defend-
ant’s Motion for Rehearing.
August 13, 1974—Petition for a Writ of Certiorari and
Motion for Leave to Proceed in Forma Pauperis
docketed in the Supreme Court of the United States.
October 15, 1974—Motion for Leave to Proceed in Forma
Pauperis and Petition for a Writ of Certiorari granted
by the Supreme Court of the United States.
Precinct No. Two
IN THE JUSTICE COURT OF THE
STATE OF ARIZONA
COUNTY OF PIMA
No. 33836
STATE OF ARIZONA, PLAINTIFF,
vs.
Roy MooRE AND MICHAEL JEROME CASSIUS,
DEFENDANT (S)
Filed Oct. 18, 1972
CRIMINAL COMPLAINT
Felony
The undersigned having appeared personally and hav-
ing been duly sworn does, upon information and belief,
accuse ROY MOORE and MICHAEL JEROME CAS-
SIUS and charges that in Pima County:
(BURGLARY)
On or about the 17th day of October 1972, ROY MOORE
and MICHAEL JEROME CASSIUS committed burglary
of the motor vehicle of ALEX DESOTO, a 1967 Chevro-
let Van, white in color, Arizona License for 1972, JC
2125, VIN GS157P112680, all in violation of A.R.S. Sec-
tion 13-302, as amended.
{Signatures and Subscription omitted in printing]
;
Precinct No. Two
IN THE JUSTICE COURT OF THE
STATE OF ARIZONA
COUNTY OF PIMA
No. 33907
STATE OF ARIZONA, PLAINTIFF,
Us,
MICHAEL J. CASSIUS, DEFENDANT (s)
Filed Nov. 6, 1972
CRIMINAL COMPLAINT
Felony
The undersigned having appeared personally and havy-
ing been duly sworn does, upon information and belief,
accuse MICHAEL J. CASSIUS and charges that in Pima
County:
COUNT ONE (BURGLARY)
On or about the 4th day of November 1972, MICHAEL
J. CASSIUS committed burglary of a store located at 200
South Park, Pima County, all in violation of A.R.S. See-
tion 13-302, as amended.
COUNT TWO (COMMITTING FELONY WHILE ON
BAIL OR OWN RECOGNIZANCE)
On or about the 4th day of November 1972, MICHAEL
J. CASSIUS, while released on bond or his own recogni-
zance on the felony charge of Burglary, Justice Court
No. Two, No. 33836, committed the crime of Burglary,
in violation of A.R.S. Section 13-1580.
[Signatures and Subscription omitted in printing]
5
BEFORE THE PIMA COUNTY GRAND JURY
TUCSON, ARIZONA
No. A-22303
7 GJ-179
STATE OF ARIZONA, PLAINTIFF,
| v8,
MICHAEL J. CASSIUS, AKA CARL JACKSON, ACCUSED.
REPORTER’S TRANSCRIPT OF PROCEEDINGS
Filed Dee. 14, 1972
Proceedings had in the above-entitled matter before the
Pima County Grand Jury in secret session on the 14th day
of November, 1972, sitting in Courtroom No. 5 of the
Superior Court, Tucson, Arizona.
PRESENT:
MR. GERARD R. 0O’MEARA
MR. TERRY G. DONALDSON
Deputy County Attorneys
(2] THE FOREMAN: We will go back on the record
then. Do you have another case?
MR. O’MEARA: 7GJ-179, Cassius.
THE FOREMAN: 7GJ-179. The accused name is
Cassius, Michael J., also known as Jackson, Carl. The
charge is burglary, committing a felony while on bail
or on own recognizance. The witnesses will be Officer
Lanier and Officer Malm, M-a-l-m. Do any members. of
the grand jury know any of these people or feel they
should be excused from considering this case?
Do you have a witness, sir?
MR. O’MEARA: Malm.
¢
RICHARD MALM,
_ called as a witness before the grand jury, having been
_ first duly sworn, was examined and testified as follows:
EXAMINATION
BY MR. O’MEARA
THE FOREMAN: Sit there and speak into the mike,
please.
MR. O’MEARA: Q_ Officer, will you state your name
and occupation. A Richard Malm, patrolman, City of
Tucson Police Department.
Q How long have you beer with the Tucson [3] Po-
lice Department? A_ I have been with Tucson for a little
over two years.
Q Were you with any other department before com-
ing te Tucson? A _ Yes.
Q Which one and where? A Chicago, metropolitan
area, for a little over six and a half years.
Q_ In what capacity are you presently employed with
TPD? A I am with the service dog unit, the K-9
patrol of the city Police Department.
Q How long have you been on the K-9 patrol? A
Just three months.
Q Were you on duty on November 4, 1972? A _ Yes,
sir.
Q Do you remember the hours you worked that day?
A We worked from 8:00 p.m. until 4:00 a.m. in the
morning.
Q Did you have occasion at any time on November
4, 1972, to investigate a scene located at 200 South
Park? A_ Yes, sir.
Q What is at 200 South Park? [4] A A business
by the name of Tires West.
Q Is that in Pima County? A_ Yes, it is.
Q Did you have your dog with you at that time?
A Yes, sir, I did.
Q Would you explain to the grand jury how it was
you came to 200 South Park on November 4, 1972? A
7
Officer Lanier of the City Police Department had re-
sponded to a burglar alarm at that location. After
arriving there he called for the assistance of one of the
dog units, and I was the closest to his location and
responded.
Q What time was it you arrived? A Shortly before
midnight.
Q Would you describe for the grand jury exactly
what transpired when you got there? A Yes. When
I arrived there Officer Lanier took me around to the
back of the building. On the west side at the north
corner there is an overhead door leading into the ware-
house of the particular building where they store tires.
He showed me where there had been a handle in the
overhead door removed and he thought there had been
entry into the building from that location.
{5} At that time he thought he had heard someone in-
side the building and requested a service dog to attempt
to search the building.
Q So what transpired next? A I advised the sub
ject, or advised the interior of the building that I was
giving them five minutes to come out or I was going to
take the dog in the building. There was no response,
and after the time passed I entered the building with
my dog, searched the building. He located a subject
inside the building in the bathroom, in the area of the
offices in the front of the building. The subject was
consequently arrested for burglary.
Q This particular subject you jocated in the building,
was he alone or were there other people in there with
him? A He was the only subject located inside the
building.
Q Did you learn his name that evening? A That
evening he gave us the name of Carl Jackson.
Q Have you subsequently learned this individual's
true name? A Yzes. I believe it to be Michael J.
Cassius.
[6] Q Now while you were at the scene did you observe
any other doors or windows at that particular estab-
lishment? A _ Yes, sir. After my dog alerted Mr. Jack-
son, or Cassius, as you will, he was removed from the
do tan als aR I STA be itt I Bb DEES ee
8
scene and the entire building was researched by myself
and one other service dog unit.
Q Did you find anybody? A There was no one else
in the building, but we did observe other doors and win-
dows in the building, but we were unable to determine
whether anybody else had been in the building with
Jackson,
Q Were there any other places or points of entry that
you were able to observe as you made your rounds that
evening? A No, sir, there were not.
Q_ Just that one your originally found? A Yes, that
is correct.
Q Officer Malm, did you at any time after that speak
with any owner or manager or somebody in a man-
agerial capacity with Tires West? A Yes, sir, I did.
Q With whom and when? A I believe it was Mr.
Dick Smith, who is the owner of Tires West, and it was
approximately an hour after I had searched the build-
ing and [7] arrested the subject. I had the desk, the
Police Department desk call the owner of the business,
and he responded to check the business with me to de
termine if there was a loss and to attempt to determine
what the condition of the door was prior to the alarm.
Q What was this man’s response? A He stated that
upon his leaving earlier in the evening there was no
damage to the particular door that was broken in to.
Upon searching the entire building with him after we
had secured the building it was determined that numerous
tires had been moved from their rows where they had
normally been stored and placed in the middle of the
store probably for removal by the subject.
Q Did Mr. Smith ever indicate to you, did he know
Mr. Jackson or Mr. Cassius, whatever this man’s name
was? A He indicated to me at the time when I spoke
with him during the investigation he thought he recog-
nized him, but he wasn’t sure and couldn’t place the name.
He asked me the subject’s name and I advised him Carl
Jackson, which was the name we knew him by at the
time, and he stated he did not know Mr. Jackson by that
name.
9
[8] Q Did he indicate whether of not he had given
this particular individual, Mr. Jackson or Mr. Cassius,
did he ever indicate whether or not he gave his permis-
sion to go in the building on that evening? A _ I asked
him if he had. He said he not given anyone permissicn
to be in it.
Q Now if you saw Mr. Cassius or Mr. Jackson,
however he is known to you, if you saw this individual
you found in the building that night, if you saw him
again would you recognize him? A Yes, sir, I would.
Q Officer, isn’t it also true that on November 4,
1972, that Mr. Cassius was released on his own recogni-
zanc*, or he was on bond, in any event that he was in
fact out and not in jail pending his connection with a
felony charge of burglary in Justice Court number two,
the case number being 33836? A_ It is my understand-
ing through our records division and through the county
attorney’s records that he was in fact out on his own
recognizance reference another felony charge. The case
number and charge I am not familiar with.
Q Did you happen to have any conversation with
this individual at the very time that you [9] apprehended
him in the back part of the store? Did you say anything
to him at that time? A I did not to him, but he did
to me.
Q Would you indicate to the jury what it was he
said to you? A Directly after my dog alerted on him
I entered the bathroom, frisked him, handcuffed him.
He asked me at that time—I don’t know the exact words,
but roughly, “How did you find out I was here? Does
the building have an alarm or did someone see me come
in?”
I did not at that time answer him nor did I advise him
of his rights. My interest at the time was to find out
if there was anyone else in the building.
I escorted him out of the building and turned him over
to Officer Lanier on the exterior of the building and con-
tinued my search.
MR. O’MEARA: I have no further questions of this
witness,
it incl oe
10
THE FOREMAN: Does any member of the grand
jury have any questions to ask?
All right, sir. Thank you very much. You are ex-
cused. Well you step back out into the hall for a few
moments?
(Witness excused. )
[10] THE FOREMAN: You have no more witnesses?
MR. O’MEARA: No.
THE FOREMAN: The charge is burglary and com-
mitting a felony while on bail or on his own recognizance.
Is ther [sic] any question from any member of the grand
jury on the law in this case?
All right. Then if the county attorneys and the court
reporter will leave the room we will discuss the evi-
dence presented.
(Whereupon the grand jury deliberated in secret
session in the absence of counsel and the court re-
porter. }
THE FOREMAN: All right, sir. Let the record show
in the case 7GJ-179, the accused, Michael J. Cassius, also
known as Carl Jackson, charged with burglary and
committing a felony while on bail or on his own recogni-
zance, the grand jury voted a true bill evelen to zero.
1l
IN THE SUPERIOR COURT OF THE
STATE OF ARIZONA
IN AND FOR THE COUNTY OF PIMA
No. A22303
STATE OF ARIZONA, PLAINTIFF,
vs,
MICHAEL J. CaSSIUS, AKA CARL JACKSON, DEFENDANT(S)
INDICTMENT
Filed Nov. 14, 1972
The grand jurors of the county of Pima, in the name
of the state of Arizona, and by its authority accuse
MICHAEL J. CASSIUS, aka CARL JACKSON and
charge that in Pima County:
COUNT ONE (BURGLARY)
On or about the 4th day of November, 1972, MICHAEL
J. CASSIUS, also known as CARL JACKSON, com-
mitted burglary of a store located at 200 South Park,
Pima County, all in violation of A.R.S. Section 13-302,
as amended.
COUNT TWO (COMMITTING FELONY WHILE ON
BAIL OR OWN RECOGNIZANCE}
On or about the 4th day of November, 1972, MICHAEL
J. CASSIUS, also known as CARL JACKSON. while
released on bond or his own recognizance on the felony
charge of burglary, Justice Court No. Two. No. 33836,
committed the crime of burglary, in violation of * * *
[Signatures Omitted in Printing]
:
:
3
:
:
Wh PAE MRAP E EE Sey
a BLT,
IN THE SUPERIOR COURT OF THE
STATE OF ARIZONA
IN AND FOR THE COUNTY OF PIMA
No. A-22303
STATE OF ARIZONA, PLAINTIFF,
Us.
MICHAEL J. CASSIUS, DEFENDANT.
January 4, 1973
REPORTER’S TRANSCRIPT
Filed April 9, 1973
APPEARANCES:
JIM HOWARD, Esgq., for the Plaintiff
JOHN HAWKINS, Esq., for the Defendatt [sic]
The above-entitled matter came on for hearing before
the Honorable Jack C. Marks, Judge of the above-entitled
Court, on the 4th day of January, 1973, and the following
proceedings were had, to-wit:
PROCEEDINGS
THE COURT: State of Arizona, plaintiff, versus
Michael J. Cassius, also known as Carl Jackson, defend-
ant, A-22303, and State of Arizona, [2] plaintiff, versus
Michael Jerome Cassius, defendant, A-22479.
Is the State ready? MR. HOWARD: State’s ready,
Your Honor.
THE COURT: Is the defendant ready? MR. HAW-
KINS: Yes, Your Honor.
THE COURT: What’s before the Court, sir? MR.
HAWKINS: Your Honor, this is the time set for a
change of plea, and a plea bargain which has been worked
out by Mr. Howard and me, whereby Mr. Cassius will
13
enter a plea to count 1 of A-22303, count 2 of the same
number, A-22303, will be submitted to the Court on the
basis of the Grand Jury transcript in that case, and a
stipulation between counsel as to Mr. Cassius’ release
earlier on the charge in A-22479.
In addition, A-22479 will be dismissed and no other
charges will be filed, and Mr. Howard will correct any-
thing I Yfave stated.
THE COURT: Mr. Howard, I understand everything
except in relation to count 2 of the indictment in A-
22303. MR. HOWARD: The charge in count 2 is com-
mitting a felony while released on his own recognizance
on another felony charge, Your Honor, and the public
defender would like to reserve their [3] right to examine
that Statute on appeal, so are reluctant to enter a plea
at this point, and would prefer to submit it to the Court
on the stipulated facis in the Grand Jury trarscript,
and there are certain matters which I will ask the Court
to take judicial notice of from the Court file.
THE COURT: Spell out those facts now, then,
please? MR. HOWARD: Okay.
The facts that we stipulate to are: That that, and cor-
rect me if I am wrong, that the defendant was released
on his own recognizance in Case Number A-22479 on the
18th of October, 1972, by the Justice Court, and re-
mained released in that case until today.
That would be the stipulated fact, and I would ask
the Court to.take judicial notice of defendant’s plea in
A-22303, judicial notice that burglary is a felony in the
State of Arizona.
Judicial notice that the burglary in A-22303 was one
which happened on the 4th of November, or that plead-
ings and the Grand Jury transcript says it happened on
the 4th of November, 1972. Judicial notice that the com-
plaint filed in A-22479 was burglary and thus a felony,
and judicial notice that the defendant was ordered [4]
released—well, we have stipulated to that.
He was ordered released ROR on the 18th of October,
1972, and remainea released until today.
THE COURT: i have great difficulty in understand-
ing that last stipulation, though. He wasn’t ordered re-
PPh Sei RAR id ONE eta
Fah ea?
14
leased. A summons was issued for him and he was per-
mitted to remain at liberty on his own recognizance, but
there is nothing in the file that indicates that. MR.
HOWARD: That Superior Court file does not reflect the
release issued by the magistrate.
This particular case was instigated in the beginning
or started by complaint filed in the Justice Court, and
the Justice Precinct ordered him on this first appearance
on the 18th of October and he was released on his own
recognizance, and I have a witness here to put on to
prove that.
To save time, we have decided to stipulate to that. It’s
not in the file, but it probably should be.
THE COURT: That’s the reason I am saying, but if
you stipulate to it, it’s a fact, and do you so stipulate,
Mr. Hawkins? MR. HAWKINS: Yes, I do, Your
Honor.
(5] THE COURT: Very well. Then I’ll take the plea
on count 1 in A-22303, and it seems to me I can rule
right away unless there is something in the Grand Jury
transcript that’s going to be different than what you
have told me. Is there? MR. HAWKINS: I don’t think
so, Your Honor.
THE COURT: Are the facts before me now? MR.
HOWARD: I think with the judicial notice the Court
can take of those matters, I think you have all the facts,
yes.
THE COURT: Then will you withdraw that portion
of the stipulation relating to the transcript and I’ll rule
right away, because I think there’s sufficient—
MR. HOWARD: Yes.
MR. HAWKINS: Yes.
THE COURT: All right. Show that portion of the
stipulation has been withdrawn with leave of Court.
I am going to read count 1 of the indictment to you in
Case A-22303, Mr. Cassius, and ask you how you plead,
guilty or not guilty.
Grand Jurors of the County of Pima, State of Arizona,
and by its authority, accuse Michael J. Cassius, also known
as Carl Jackson, [6] and charge that in Pima County,
on or about the 4th day of November, 1972, Michael J.
15
Cassius, also known as Carl Jackson, committed burglary
of a store located at 200 South Park, Pima County, on
violation of ARS 18-302 as amended.
How do you plead? Guilty or not guilty to count 1
of the indictment filed on November 14, 1972, in Case
Number A-22303? THE DEFENDANT: Guilty.
THE COURT: I would like you to answer some ques-
tions for me, please. Have you been advised and do you
understand that you have a right to a speedy trial by a
jury with respect to count 1 of this indictment, that you
have a right to cross-examine witnesses who may tes-
tify against you and you have a privilege against you
and you have a privilege against self-incrimination, that
if you plead guilty and your plea is accepted by the
Court, you are waiving such Constitutional rights and
privileges? THE DEFENDANT: Yes.
THE COURT: Do you understand that you have a
right to have an attorney present at the time of sentenc-
ing if your pleas of guilty are accepted? THE DE-
FENDANT: Yes.
[7] THE COURT: You understand that you are
charged with the crime of burglary, in that in this
County and State, on or about November 4, 1972, you
committed a burglary of a store at 200 South Park?
THE DEFENDANT: Yes.
THE COURT: Do you understand that burglary of a
store means that you went in there with the intent to
commit Grand or Petty Theft or other felony? THE
DEFENDANT: Yes.
THE COURT: Did youdoso? THE DEFENDANT:
Yes.
THE COURT: What did you intend to do when you
when into the 200 South Park? THE DEFENDANT:
Steal some tires.
THE COURT: Thank you.
What would you value the tires at? THE DEFEND-
ANT: Well, I didn’t get #chance to rip them off.
THE COURT: You didn’t get a chance to rip them
off? THE DEFENDANT: Take them.
THE COURT: Who frustrated your chance? THE
DEFENDANT: The Police Department.
es ee et te eee ee
rales
S22
16
THE COURT: Had you ripped them off, [8] what would
they have been worth? THE DEFENDANT: That’s
tard to say, because I don’t know when I would have
stopped.
THE COURT: Well, since the burglary statute in-
cludes Petty and Grand Theft, I am not going to pursue
this line of questioning any further.
You are pleading guilty because of some promise or
representation by anyone as to what sentence the Court
may impose upon you? THE DEFENDANT: No.
THE COURT: Are you pleading guilty because you
have been threatened or coerced by someone to plead
guilty? THE DEFENDANT: No.
THE COURT: Have any promises of any kind been
riade to you by anyone to induce the plea of guilty to
Count 1 of A-22303, except, that if you do, the State
would move to dismiss the indictment in case Number
A-22479 and offer you an opportunity to plead not guilty
to count 2, and on a stipulated set of facts, the Court
would decide whether you are guilty or not on count 2?
THE DEFENDANT: No.
MR. HAWKINS: And in addition to that, no addi-
tional charges.
[9] THE COURT: No additional charges will be filed.
Is this as to the matters known or unknown or both?
MR. HOWARD: As to any matters known, Your Honor.
THE COURT: As to any known matters. Very well.
The answer is still no, right? THE DEFENDANT:
Right.
THE COURT: Thank you. Was this a nighttime or
a daytime burglary? THE DEFENDANT: Nighttime.
THE COURT: Therefore, I’ll have to make a finding
under the Rule that it’s Burglary in the first degree,
and the Court so finds.
The reason I have to do that is because the sentence
varies. Do you understand that the sentence in the case
of burglary in the first degree may be not less than one
nor more than fifteen years in prison, in the State prison,
or probation, based on the pre-sentence investigation
report of the adult probation officer of this Court, which
will be furnished to the Court prior to sentence? THE
17
DEFENDANT: Yes.
THE COURT: Have you discussed the facts or these
cases, I should say, have you discussed [10] the facts
of these cases and the entry of the plea of guilty to
count 1 of the indictment in A-22303 with your attorney?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with the representa-
tion and services of your attorney? THE DEFEND-
ANT: Yes.
THE COURT: Do you have any complaint regarding
the matter in which your attorney has represented you?
THE DEFENDANT: No.
THE COURT: Let the record show it is the express
finding of the Court that the defendant’s plea of guilty
to count 1 of the indictment in case Number A-22303
is made knowingly and voluntarily and with understand-
ing of the nature of the charge against him, with an
understanding of the consequences of the plea of guilty
and that the plea of guilty is accepted. Now, with re-
spect to count 2 of the indictment in case number A-
22303, based upon the stipulation of counsel as to the
facts, I find that you are guilty of count 2, which is
committing a felony while on bail, or on your own
recognizance,
Do I hear a motion with respect to the indictment in
A-22479? MR. HOWARD: Your Honor, at this time
the [11] State would move to dismiss the indictment in
A-22479 as to the defendant Michael Jerome Cassius and
as to that defendant only.
THE COURT: Any objection? MR. HAWKINS:
No objection.
THE COURT: The motion is granted and the in-
dictment filed December 12, 1972, in Case Number A-
22479 is dismissed as to the defendant Michael Jerome
Cassius only.
Will January 15 be all right for judgment and sen-
tence? MR. HAWKINS: Yes, Your Honor.
THE COURT: Very well. It is ordered that judg-
ment and sentence be pronounced with respect to the
indictment in case A-22303, I should say judgment and
sentence be pronounced in the indictment in Case A-
18
22303 on January 15, 1973, at 9:00 o’clock a.m. in Di-
vision 8 of this Court, and the defendant is remanded
to the custody of the Sheriff of Pima County pending
pronouncement of judgment and sentence.
MR. HAWKINS: The one additional matter, if we
may, Your Honor, if the Court would entertain a motion
for reduction of bond in this particular charge to $1,000
from the two that has been set.
The defendant, even in that situation, [12] would only
be able to—I think his mother might be able to make the
bond by putting up the automobile, and otherwise tying
up her one piece of property that she owns, and Mr.
Cassius has several matters here in Tucson that he
needs to get cleared up if possible before whatever dis-
position is made, and we ask that it be reduced to
$1,000.
THE COURT: Any objection? MR. HOWARD:
The State would object, Your Honor, for several reasons.
Mr. Cassius has a prior criminal record, and in fact is
on parole from the State of California. This indicates
to us that Mr. Cassius has roots not only in this com-
munity, but in other communities, and due to his criminal
record and due to the Arizona multiple charges, the
State feels that Mr. Cassius is not a very good risk for
release on bond. I think that the Court should take into
consideration the setting of the amount of bond and
properly take that into consideration under the statutes.
THE COURT: What was he convicted of in Cali-
fornia? MR. HOWARD: Burglary.
THE COURT: Burglary in California.
[13] MR. HOWARD: Prior to arrest for robbery in
California, I don’t know any of the facts in that case.
THE COURT: I said convicted. Burglary conviction
in California and parole charge of burglary in A-22479,
and then when he was released in that case for that
charge, he then committed another burgiary which he
has admitted in open Court.
I would say the motion to reduce is denied.
MR. HAWKINS: Your Honor, if I might add a
couple of things. He is on probation from California.
David Smith, with the State Pardon & Parole, is his
19
probation officer, speaks highly of Mr. Cassius, it is de-
tailed in this record.
THE COURT: Fine. When Mr. Smith comes into
Court and speaks highly under oath, I might reconsider
my decision. At this time, the decision, and without
prejudice to any other application you may wish to
make at a later time. The Court stands at recess in
these matters and the defendant is remanded to the
custody of the Sheriff of Pima County to await judgment
and sentence or bail, as the case may be.
20
IN THE SUPERIOR COURT OF THE
STATE OF ARIZONA
IN AND FOR THE COUNTY OF PIMA
{Caption Omitting in Printing]
January 22, 1973
REPORTER’S TRANSCRIPT
Filed April 9, 1973
APPEARANCES:
TOM LETNES, Deputy County Attorney, for the
Plaintiff
JOHN HAWKINS, Esq., for the Defendant
ROBERT LONG, Chief Deputy Adult Probation Officer
The above-entitled matter came on for hearing before
the Honorable Jack G. Marks, Judge of the above-entitled
Ccurt, on the 22nd day of January, 1973, and the follow-
ing proceedings were had, to wit:
PROCEEDINGS
THE COURT: State of Arizona, plaintiff, [15] versus
Michael J. Cassius, Defendant, A-22303.
Is the State ready? MR. LETNES: Yes, Your
Honor.
THE COURT: Is the defendant ready? MR. HAW-
KINS: Yes, Your Honor.
THE COURT: Is there any legal cause to show why
judgment should not be pronounced? MR. HAWKINS:
No, sir, there is not.
THE COURT: Any statement you wish to make, on
behalf of Mr. Cassius at this time? MR. HAWKINS:
Yes. I would, Your Honor. I don’t knew if the Court is
aware—the Court has a detailed pre-sentence report be-
fore it and I would ask the Court to consider, though
21
his prior record does not look favorable, I would ask the
Court to consider the involvement and circumstances of
which these activities arose.
The frequent absence of his father, the family situation
where it was too little money and too many children.
His mother tried to work and stretch welfare, what little
she had, as far as it would go. I think it is possible
we might all be driven to do things and we wouldn’t
otherwise, faced with hunger, et cetera.
His problem subsequently was aggravated by heroin
and drugs and that didn’t help things. I [16] would ask
the Court to consider that Mike is now 21 years of age
and is worth saving at this point, that his family could
use him financially and because he is the oldest male
living at home. He has three younger siblings who could
benefit. He is employed as a welder and would be em-
ployed as such, and I would ask the Court to consider it.
If the Court feels at the present time it is necessary,
and I know that the Court is very much aware of the
facts that count 2 in this case mandate consecutive sen-
tence, I would ask the Court to consider, because of the
mandatory consecutive sentence, that perhaps the total
sentence of the two ought to be whatever the Court feels
is the optimum sentence to imprison Mike.
His activities in the past cannot be repeated. He will
have to prove it from what he has learned here and he
will have to if he has to, spend time in prison, he will
have to prove it in that, and know he cannot repeat
the activities of the past; and last of all, for whatever
value it is worth, Your Honor, we would ask you to
consider that Mr. Cassius spent Saturday afternoon co-
operating with the police, taking them to various places,
and clearing records on their part, we do not have the
confirmation from the County [17] Attorney or the
police, but I understand 12 to 15 different ones. and
I would ask the Court to consider.
THE COURT: That was for Mr. Cassius’ benefit as
well, as I explained to him in Chambers on January 19,
that it would give him protection from further prosecu-
tion if he aided the police to close their cases, and if it
amounted to 12 or 15 cases, then he has gained consider-
ably by doing that.
MS Kitel ¥
CMA eC? aa BRT al
AMG x. pert
—_—— —
22
MR. HAWKINS: Yes, Your Honor. I am sure it
was of mutual benefit, and he understands that, and !
would ask the Court to consider all circumstances in
consideration.
THE COURT: Mr. Cassius, do you have anything to
Say on your own behalf, and in particular what happened
since I saw you last on January 19, 19732 THE DE-
FENDANT: No, Your Honor.
THE COURT: Will you tell me anything about what
you did with the police in the meantime? THE DE-
FENDANT: Well, I took them to different places where
I committed crimes and told them what happened, how
I did it, what I did with the merchandise, and, you
know.
THE COURT: How many cases did you clear [18]
_ up? THE DEFENDANT: About 15.
THE COURT: And were they all limited to burglaries,
3 larceny and sale of marijuana? THE DEFENDANT:
All burglaries.
THE COURT: Well, as I told you at that time, that
was for your benefit as well as the police. THE DE-
_ FENDANT: Yes.
THE COURT: And that I couldn’t give any hope that
_ it might change the recommendation to send you to
_ prison, because you yourself know that you have been
living off society by these burglaries and thefts and drug
matters, and that the time has come where you have
got to go to prison.
I am sure that at 21 years of age, that this isn’t
either going to make you or break you by going to prison,
but you have had too good a time on the public. THE
DEFENDANT: Yes, sir. I know.
THE COURT: I can give you a break from the
recommendation, but I am going to send you to prison.
Is there anything else to say? THE DEFENDANT:
No, Your Honor.
THE COURT: Does the State have anything to say?
[19] MR. LETNES: No, Your Honor.
We will depend on the probation officer’s recommenda-
tion.
23
THE COURT: Thank you.
With respect to count 1 of the indictment filed No-
vember 14, 1972, the defendant being asked to show legal
cause why judgment should not be pronounced at this
time, and no sufficient cause being shown or appearing
to the Court, thereupon the Court renders its judgment
that whereas you, Michael J. Cassius, also known as
Carl Jackson, having pled guilty in this Court to the
charge of burglary in the first degree, it is found by the
Court that you are guilty of said crime.
Therefore, it is ordered adjudged and decreed, and
the judgment and sentence of the Court is that you,
Michael J. Cassius, also known as Carl Jackson, be im-
prisoned in the State prison at Florence, Arizona, for a
term of not less than one year and not more than two
years to date from arrival at the Arizona—no. You
have been in custody how long? THE DEFENDAN za:
About three months.
THE COURT: What date is it. Can somebody es-
tablish the date?
[20] To date from November 4, 1972. The defendant
is remanded to the custody of the Sheriff of Pima County,
Arizona, to be by him delivered into the custody of the
proper officers of the said State prison.
It is further ordered that a certified copy of this
judgment shall be sufficient warrant for said Sheriff
vo take, keep and safely deliver the said Michael J.
Cassius, also known as Carl Jackson, into the custody
of the proper officers of said State prison, and the
sufficient warrant for the officers of said State prison
to keep and imprison the said Michael J. Cassius, also
known as Carl Jackson in accordance herewith.
Now, with respect to count 2 of the indictment filed
November 14, 1972, the defendant being asked to show
legal cause why judgment should not be pronounced and
no sufficient cause being shown or appearing to the
Court, thereupon the Court renders its judgment, that
whereas you, Michael J. Cassius, also known as Carl
Jackson, pled guilty in the Court of the charge of
committing a felony while on bail or on own recogni-
zance,—
24
MR. HAWKINS: Your Honor, may I correct the
Court in that I believe it was submitted and [21] the
Court found it.
THE COURT: You are correct. Let us start over
on count 2.
The defendant being asked to show legal cause why
judgment should not be pronounced at this time and no
sufficient cause being shown or appearing to the Court,
thereupon the Court renders its judgment that whereas
you, Michael J. Cassius, also known as Carl Jackson,
having been found guilty in this Court of the charge of
committing a felony while released upon your own
recognizance, it is found by the Court that you are guilty
of said crime.
Therefore, it is ordered, adjudged and decreed, and
the judgment and sentence of the Court is that you,
Michael J. Cassius, aiso known as Carl Jackson, be
punished by imprisonment in the State prison, at Flor-
ence, Arizona, for a term of not less than one year and
not more than three years to date from the completion
of the sentence with respect to count 1 of this indict-
ment entered earlier this date, and the defendant is
remanded to the custody of the Sheriff of Pima County,
Arizona, to be by him delivered into the custody of the
proper officers of the said State prison, and it is further
ordered |22] that a certified copy of this judgment shall
be a sufficient warrant for the said Sheriff to take, keep
and safely deliver the said Michael J. Cassius, also known
as Carl Jackson, into the custody of the proper officers
of said State prison, and a sufficient warrant for the
officers of the said State prison to keep and imprison
the said Michael J. Cassius, also known as Carl Jackson
in accordance herewith.
Now, it is my duty to advise you in open Court, as
I am, that you have a right to appeal from each judg-
ment and sentence, That you have to file notice of appeal
within 60 days, that you have a right to have counsel
prosecute the appeal, and if indigent, the right to ap-
pointed counsel, the right to be furnished without cost
a copy of the record and reporter’s transcript for appeal
purposes,
25
Now, Mr. Cassius, I want you to know that the sentence
I have given you was less than the recommended sen-
tence, and I took into consideration your clearing the
cases for the police.
THE DEFENDANT: Thank you.
THE COURT: I want you to know you are the chief
beneficiary for what you did Saturday, [23] and I am
pleased you did it.
The Defendant is remanded to the custody of the
Sheriff.
The Court stands at recess.
MR. HAWKINS: Thank you, Your Honor.
THE DEFENDANT: Thank you.
Bs
s
:
3
2
4
26
IN THE SUPERIOR COURT OF THE
STATE OF ARIZONA
IN AND FOR THE COUNTY OF PIMA
[Caption Omitted in Printing]
JUDGMENT AND COMMITMENT
Filed January 22, 1973
Convicted of: Committing Felony while on bail or
own recognizance, a felony (Count II)
On this 22nd day of January, 1973, the defendant be-
ing present in open court, in person and by counsel,
John Hawkins, and the deputy county attorney, Tom
Letnes, being present on the part of the State, and this
being the time heretofore fixed for passing judgment
on the defendant, the defendant was informed by the
Court of the nature of the Information filed charging
the crime of Committing felony while on bail or own re-
cognizance, a felony (Count II) committed on or about
the 4th day of November, 1972; also of the arraignment
and plea of not guilty as charged in the Indictment on
the 16th day of November, 1972.
The defendant being asked to show legal cause why
judgment should not be pronounced at this time, and no
sufficient cause being shown or appearing to the Court,
thereupon the Court renders its judgment, that, WHERE-
AS, you Michael J. Cassius, aka Carl Jackson, having
been found guilty in this Court to the charge of Com-
mitting felony while on bail or own recognizance, a
felony (Count II) it is found by the Court that you
are guilty of said crime. Therefore,
IT IS ORDERED, ADJUDGED AND DECREED,
and the judgment and sentence of the Court is that you
Michael J. Cassius, aka Carl Jackson be punished by
imprisonment in the State Prison at Florence, Arizona,
for a term of not less than one (1) years, and not more
than three (3) years, to date from the completion of
27
the sentence with respect to Count I of the Indictment
entered earlier this date and defendant is remanded to
the custody of the Sheriff of Pima County, Arizona,
to be by him delivered into the custody of the proper
officers of said State Prison.
IT IS FURTHER ORDERED that a certified copy
of this Judgment shall be a sufficient warrant for said
Sheriff to take, keep and safely deliver the said Michael
J. Cassius, aka Carl Jackson into the custody of the
proper officers of said State Prison, and a sufficient war-
rant for the officers of said State Prison to keep and
imprison the said Michael J. Cassius, aka Carl Jackson
in accordance herewith.
Thereupon, the defendant, in open court, was advised
by the Court of the right to appeal, of the time in
which notice of appeal may be filed and of the right
to have counsel to prosecute the appeal, and, if indigent,
of the right to appointed counsel and the right to be
furnished, without cost, a copy of the record and re-
porter’s transcript for appeal purposes.
/s/ Jack G. Marks
Judge
Copy received at 12 Noon
this 22 day of Jan., 1973
/s/ [Illegible]
Deputy Sheriff
18-1
(Prison)
EOP SER ER LITER ea tials "
28
IN THE SUPERIOR COURT OF THE
STATE OF ARIZONA
IN AND FOR THE COUNTY OF PIMA
[Caption Omitted in Printing]
JUDGMENT AND COMMITMENT
Filed January 22, 1973
Plea of Guilty to: Burglary, First Degree, a felony
(Count I)
On this 22nd day of January, 1973, the defendant be-
ing present in open court, in person and by counsel,
John Hawkins, and the deputy county attorney, Tom
Letnes, being present on the part of the State, and this
being the time heretofore fixed for passing judgment
on the defendant, the defendant, was informed by the
Court of the nature of the Information filed charging
the crime of Burglary, First Degree, a felony (Count
I) committed on or about the 4th day of November, 1972;
also of the arraignment and plea of Guilty as charged
in the Indictment on the 4th day of January, 1973.
The defendant being asked to show legal cause why
judgment should not be pronounced at this time, and no
sufficient cause being shown or appearing to the Court,
thereupon the Court renders its judgment, that, WHERE-
AS, you Michael J. Cassius, aka Carl Jackson, having
pled guilty in this Court to the charge of Burglary,
First Degree, a felony (Count I) it is found by the Court
that you are guilty of said crime. Therefore,
IT IS ORDERED, ADJUDGED AND DECREED,
and the judgment and sentence of the Court is that you
Michael J. Cassius, aka Carl Jackson be punished by
imprisonment in the State Prison at Florence, Arizona,
for a term of not less than one (1) years, and not more
than two (2) years, to date from November 4, 1972.
and defendant is remanded to the custody of the Sheriff
of Pima County, Arizona, to be by him delivered into
the custody of the proper officers of said State Prison.
29
IT IS FURTHER ORDERED that a certified copy
of this Judgment shall be a sufficient warrant for said
Sheriff to take, keep and safely deliver the said Michael
J. Cassius, aka Carl Jackson into the custody of the
proper officers of said State Prison, and a sufficient war-
rant for the officers of said State Prison to keep and
imprison the said Michael J. Cassius, aka Carl Jackson
in accordance herewith.
Thereupon, the defendant, in open court, was advised
by the Court of the right to appeal, of the time in
which notice of appeal may be filed and of the right
to have counsel to prosecute the appeal, and, if indigent,
of the right to appointed counsel and the right to be
furnished, without cost, a copy of the record and re-
porter’s transcript for appeal purposes.
/s/ Jack G. Marks
Judge
[Sheriff’s Acknowledgement of Receipt
Omitted in Printing]
30
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION Two
No. 2 CA-CR 881
THE STATE OF ARIZONA, APPELLEE
Vv.
MICHAEL J. CASSIUS aka CARL JACKSON, APPELLANT
Appeal from the Superior Court of Pima County
Cause No. A-22303
Honorable Jack G. Marks, Judge
REVERSED
OPINION—Filed Nov. 8, 1973
Gary K. Nelson, The Attorney General, Phoenix, by
Howard L. Fell, Assistant Attorney General, Tucson,
and Frank Leto, Certified Third-Year Law Student
under Rule 28(e)
Attorneys for Appellee
Ed Bolding, Pima County Public Defender, Tucson, by
Richard Van Duizend, Assistant Public Defender
and Jeffrey W. Hanes, Certified Third-Year Law Stu-
dent under Rule 28(e)
Attorneys for Appellant
KRUCKER, Judge.
This is an appeal from a judgment of conviction and
sentences on one count of burglary, first degree, A.R.S.
§ 13-302, and-one count of committing a felony while
released on bail or on own recognizance on a separate
felony charge, A.R.S. § 13-1580.
The peculiar facts of this case are: On October 17,
1972, appellant, Michael Jerome Cassius, was arrested
31
and charged with burglary, Cause No. A-22479. The fol-
lowing day, he was released on his own recognizance.
On November 4, 1972, while released on his own re-
cognizance on the first burglary charge, appellant was
again arrested for burglary and was charged in Cause
No. A-22303 on two counts: Count I, violation of A.R.S.
§ 13-302 (burglary, first degree) and Count II, violation
of A.R.S. § 13-1580 (committing a felony while released
on bail or on own recognizance on a separate felony
charge).
Proceedings were held on both burglary charges on
January 4, 1978. At that time, Cause No. A-22479 was
dismissed upon motion of the County Attorney. In Cause
No. A-223038, appellant plead guilty to Count I, burglary,
and Count II was submitted to the court on the basis
of the Grand Jury transcript and stipulation of counsel
that at the time of the second burglary appellant was
released on his own recognizance in Cause No. A-22479.
The court accepted appellant’s guilty piea on Count I
and found him guilty on Count II.
On January 22, 1978, appellant was sentenced to im-
prisonment for one and not more than two years on
Count I and a consecutive term of not less than one or
more than three years was imposed for the Count II con-
viction. This appeal followed.
Appellant submits two questions for review:
1, Whether appellant’s conviction for violation of
A.R.S. § 13-1580 (committing a felony while re-
leased on bail or on own recognizance) constituted
double jeopardy under the Fifth Amendment of the
United States Constitution and Art. 2 §10 of the
Arizona Constitution?
2. Whether the sentence imposed pursuant to A.R.S.
§ 13-1580 violated the statutory proscription of
A.R.S. § 13-1641 against double punishment for the
same offense?
Before we dispose of the issues raised by appellant,
we first consider the State’s contention that the issues of
double jeopardy and double punishment were not raised
below, therefore, are not preserved for appeal. In re-
32
sponse to this contention, appellant asserts that the is-
Sues are preserved by stipulation of counsel. He also
argues that double jeopardy and double punishment af-
fect substantial rights requiring tnis court on its own
initiative to notice the defects. We agree with appellee
that the double jeopardy issue is not preserved for ap-
peal. However, we find the issue of double punishment
properly submitted for review.
Generally, in Arizona the issue of double jeopardy may
not be raised for the first time on appeal. State v. Veres,
7 Ariz.App. 117, 486 P.2d 629 (1968), cert. den. 393
U.S. 1014. The purported stipulation relied on by ap-
pellant is the following statement of the prosecutor :
“MR. HOWARD: The charge in count 2 is com-
mitting a felony while released on his own recog-
nizance on another felony charge, Your Honor, and
the public defender would like to reserve their right
to examine that Statute on appeal, so are reluctant to
enter a plea at this point, and would prefer to sub-
mit it to the Court on the stipulated facts in the
Grand Jury transcript, and there are certain matters
which I will ask the Court to take judicial notice
ot from the Court file.”
We find this insufficient to preserve the double jeopardy
issue for review.
Appellant also asserts that he had no opportunity to
raise this issue at the trial court level. We find no merit
in this argument. Appellant, after having been found
guilty on Count I, made no attempt to utilize Rule 177,
Rules of Criminal Procedure, 17 A.R.S.' as to Count II on
the grounds of prior conviction or double jeopardy. Ap-
pellant’s failure to raise the issue of double jeopardy
below precludes appellate consideration of such issue.
As to the issue of double punishment, however, it may
be raised for the firse time on appeal. State v. Mills, 96
Ariz. 377, 396 P.2d 5 (1964). We therefore turn our
attention to appellant’s contention that the sentences im-
* This case is decided on the law as it existed prior to September
1, 1973. ‘
33
posed on Count I and Count II constituted double punish-
ment in violation of A.R.S. § 13-1641, which provides:
“An act or omission which is made punishable
in different ways by different sections of the laws
may be punished under either, but in no event un-
der more than one. An acquittal or conviction and
sentence under either one bars a prosecution for the
same act or omission under any other.”
Prior to the Supreme Court decisions in State v.
Mitchell, 106 Ariz. 492, 478 P.2d 517 (1970), and State
v. Tinghitella, 108 Ariz. 1, 491 P.2d 834 (1971), there
appeared to be some confusion in applying A.R.S. § 13-
1641. However, as formulated in Mitchell, supra, and
adopted in Tinghitella, supra, an “identical elements”
test is the standard, requiring elimination of the ele-
ments in one charge and a determination of whether the
facts left support the other charge. See also, State v.
Horton, 108 Ariz. 16, 492 P.2d 395 (1972); State v.
George, 108 Ariz. 5, 491 P.2d 838 (1971); and State v.
Bartky, 16 Ariz. App. 421, 493 P.2d 1226 (1972).
In spite of the seeming simplicity of this statute and
the test, judicial interpretation and application to a given
set of facts has proven to be a complex task. This case
is no exception.
Our review of the myriad of cases dealing with the
application of A.R.S. § 13-1641 sheds no light on the
problem swb judice. We find no case with a factual pos-
ture remotely similar to this case. However, there is
one common denominator—the purpose of the subject
statute is to protect an offender against double punish-
ment for a single act which violates more than one stat-
ute. See, Mitchell, supra; State v. Andrews, 106 Ariz.
372, 476 P.2d 673 (1970); State v. Ballez, 102 Ariz.
174, 427 P.2d 125 (1967); and State v. Hutton, 87 Ariz.
176, 349 P.2d 187 (1960).
As previously noted, appellant, in Cause No. A-22303,
was found guilty and sentenced on two counts: Count I,
violation of A.R.S. § 13-302, and Count II, violation of
A.R.S. § 13-1580. The pertinent provisions of these stat-
utes are:
+
4
:
|
7
a
é
Y
.
34
“$ 13-302. Definition and degrees of burglary;
punishment
A. A person entering a building, dwelling house
office, room, apartment, tenement, shop, warehouse,
store . . . with intent to commit grand or petty theft,
or any felony .. . is guilty of burglary.
B. Burglary committed in the nighttime is burg-
lary of the first degree, punishable by imprisonment
in the state prison for not less than one or more
than fifteen years.”
“$ 13-1580. Committing felony while on bail on
felony charge; penalty
A person who is convicted of committing any felony
offense, whether federal or state, which felony of-
fense is committed while such person is released on
bail or his own recognizance on a separate felony
charge is guilty of the offense of committing a
felony while released on bail or his own recognizance
and upon conviction of such crime shall be punished
by imprisonment in the state prison for not more
than five years. Such penalty shall be in addition
to and shall be served consecutively to any penalty
imposed for the offense committed while released on
bail or on his own recognizance.”
The elements necessary to prove burglary, first de-
gree, are: (1) an entry, (2) with intent to commit a
felony, and (3) commission in the nighttime. A violation
of A.R.S. § 13-1580 requires (1) a conviction of com-
mitting any felony, (2) which is committed while a per-
son is released on bail or his own recognizance on a
separate felony charge.
Appellant’s only act was the burglary of November 4,
1972, which was committed while he was released on his
own recognizance on a separate felony charge. For this
single act, he has been convicted and sentenced for two
felony offenses. If one or all of the elements of burglary
are eliminated, what facts are left to Support the charge
under A.R.S. § 13-1580? There are none. We find no
other act by appellant, hence no support for a charge
under A.R.S. § 13-1580. The factual basis for conviction
35
under either statute is the same act on the part of ap-
pellant.
The State, however, argues that the elements of
A.R.S. § 13-1580 are different, i.e., (1) conviction of a
felony and (2) such felony having been committed dur-
ing a designated period. We find such argument specious.
The “conviction” element is a jrdicial act, not appel-
lant’s, leaving only the burglary as the act of appellant.
To adopt the State’s construction would defeat the very
purpose of A.R.S. § 13-1641 and allow the prosecution
to accomplish indirectly that which cannot be done di-
rectly.
Application of the “identical elements” test enunciated
by our Supreme Court would mandate the conclusion
that the statutory proscription of A.R.S. § 13-1641 has
been violated. However, to so hold would render A.R.S.
§ 13-1580 completely inoperative. We must presume that
the legislature did not intend to do a futile act in enact-
ing A.R.S. § 13-1580. Campbell v. Superior Court, 105
Ariz. 252, 462 P.2d 801 (1969). We also assume ihat
the legislature was aware of the existence of A.R.S. § 13-
1641 and therefore that A.R.S. §§ 13-1641 and 13-1580
were intended to operate as a compatible whole. See,
Arizona State Board of Directors v. Phoenix Union High
School District, 102 Ariz. 69, 424 P.2d 819 (1967). It
must, therefore, have been the intention of the legisla-
ture to except from A.R.S. § 13-1641 the later-enacted
A.R.S. § 18-1580. However, whether or not such excep-
tion was intended, we are of the opinion that A.R.S.
§ 18-1580 is violative of the equal protection clause of
the 14th Amendment to the United States Constitution.
Initially we note that appellant did not attack the
constitutionality of A.R.S. § 13-1580 in the trial court.
Generally, constitutional questions must first be pre-
sented to the trial court for determination. Porter v.
Eyer, 80 Ariz. 169, 294 P.2d 661 (1956). However,
fundamental error is such error as goes to the founda-
tion of the case, or which takes from : defendant a
right essential to his defense, State v. Pullicm, 87 Ariz.
216, 349 P.2d 781 (1960), and we must search the rec-
ord fo. such error in all criminal appeals. State y.
ete KPa toa,
36
Powell, 5 Ariz.App. 51, 423 P.2d 127 (1967). Further-
more, this court on its own initiative should notice de-
fects which affect substantial rights, principally those
affecting constitutional rights, solely to prevent a mis-
carriage of justice. State v. Gilreath, 107 Ariz. 318, 487
P.2d 385 (1971).
As stated in State v. Pugh, 31 Ariz. 317, 252 P. 1018
(1927):
“But where for any constitutional reason the law
under which a party is being prosecuted is void, the
question need not be formally raised, as when that
fact is discovered by the court, even on appeal, it
will be considered.” 31 Ariz. at 319.
Therefore, in accordance with our absolute duty to pro-
tect constitutional rights, Marquez v. Rapid Harvest Co.,
1 Ariz.App. 562, 405 P.2d 814 (1965), and to prevent
a miscarriage of justice, we raise the constitutionality
of A.R.S. § 13-1580 ex mero motu.
Since this case involves a crime relating to bail and
the release of one on his own recognizance, it is impor-
tant to understand the nature and purpose of bail. In
Arizona, bail is a constitutionally protected right. Art.
2 § 22 of the Arizona Constitution provides:
“All persons charged with crime shall be bailable
by sufficient sureties, except for:
1. Capital offenses when the proof is evident or
the presumption great.
2. Felony offenses, committed when the person
charged is already admitted to bail on a separate
felony charge and where the proof is evident or the
presumption great as to the present charge.”
Although bail is conditioned upon the giving of “suffi-
cient sureties,” Rendel v. Mummert, 106 Ariz. 233, 474
P.2d 824 (1970), it is nonetheless a constitutionally pro-
tected right. As stated in Stack vy. Boyle, 342 U.S. 1, 72
S.Ct. 1, 96 L.Ed. 3 (1951):
“This traditional right to freedom before conviction
permits the unhampered preparation of a defense,
37
and serves to prevent the infliction of punishment
prior to conviction. [Citations omitted] Unless this
right to bail before trial is preserved, the presump-
tion of innocence, secured only after centuries of
struggle, would lose its meaning.” 72 S.Ct. at 3.
Bail is exacted for the sole purpose of securing at-
tendancc of the defendant in court at all times when his
presence may be lawfully required, and his surrendering
himself in execution of any lawful judgment that may
be pronounced against him. Gusick y. Boies, 72 Ariz.
309, 234 P.2d 430 (1951). When setting bail, the judge
should take into account the defendant’s prior arrests
and convictions, his record of appearances at court pro-
ceedings, his record cf flight to avoid prosecution, and
his failure to appear at court proceedings. Rendel v.
Mummert, supra. It is assumed that the threat of for-
feiture of one’s goods will be an effective deterrent to
the temptation to breach the conditions of one’s release.
Brandy v. United States, US. , 81 S.Ct. 197,
— L.Ed.2d —— (1960).
With this background, we turn to the constitutionality
of A.R.S. § 13-1580. The basic principles governing ap-
plication of the equal protection clause of the Fourteenth
Amendment are familiar. As the Chief Justice recently
explained in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30
L.Ed.2d 225 (1971):
“In applying that clause, this Court has consist-
ently recognized that the Fourteenth Amendment
does not deny to States the power to treat different
classes of persons in different ways. Barbier vy, Con-
nolly, 118 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923 (1885):
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61.
31 S.Ct. 337, 55 L.Ed. 369 (1911); Railway Express
Agency v. New York, 336 U.S. 106, 69 S.Ct. 463,
93 L.Ed. 533 (1949); McDonald v. Board of Elec-
tion Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22
L.Ed.2d 739 (1969). The Equal Protection Clause
of that amendment does, however, deny to States
the power to legislate that different treatment be
accorded to persons placed by a statute into differ-
eee y er ae
38
ent classes on the basis of criteria wholly unrelated
to the objective of that statute. A classification must
be reasonable, not arbitrary, and must. rest upon
some ground of difference having a fair and sub-
stantial relation to the object of the legislation, so
that all persons similarly cireumstanced shall be
treated alike.’ Royster Guano Co. vy. Virginia, 253
U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920).”
92 S.Ct. at 258, 254.
A.R.S. § 13-1580 creates two classes of accused persons
and treats them differently. Thus the question is whether
different treatment of those on bail or their own recogni-
zance aS opposed to those remaining in jail bears a
rational relationship to the objectives apparently sought
to be advanced by the operation of A.R.S. S$ 13-1580.
This statute was not adopted from any other jurisdic-
tion, and we know of no other jurisdiction with a similar
one. Although there is no legislative history to shed light
on the legislative intent, and we have not had the benefit
of appellate argument thereon, it is evident that A.R.S.
§ 13-1580 has a two-fold objective: (1) deterrence of
criminal activity on the part of individuals who have
been released on bail or on their own recognizance, and
(2) enhancement of punishment of those who engaged in
criminal activity while so released. These objectives are
clearly rational and reasonable. However, the operation
of this statute transcends those objectives.
When the legislature enacted A.R.S. § 13-1580, it cre-
ated a separate criminal offense—the offense of commit-
ting a felony while released on bail or own recognizance.
By statute, a class of individuals who have exercised their
State constitutional right to bail has been singled out.
As to these individuals, the legislature has declared it to
be a crime to be convicted of a crime. On the other hand,
had they failed to exercise their constitutional right and
remained in jail, there can be no such crime.
A simple illustration will demonstrate how this statute
operates. For example, A and B are both arrested and
charged with burglary. A is released on bail and B
remains in jail. While released, A commits aggravated
battery on a police officer. While in jail, B also commits
39
aggravated battery on a police officer. Pursuant to a
plea baygain, the original battery charges against both
A and B are dropped in exchange for a plea of guilty
to the battery charges. Notwithstanding the fact that
A and B have committed identical crimes, A may be
convicted of two crimes—(1) aggravated battery and
(2) committing a felony while released on bail or own
recognizance. However, B can only be convicted of ag-
gravated battery because his crime was committed in
jail. Taken one step further, assume that A. had been
mistakenly accused and was totally innocent of the
burglary charge. Under A.R.S. § 13-1580 he may still
be convicted of two criminal offenses for the single
battery solely because the act was committed while on
bail. We fail to see any rational relationship between
the objectives of A.R.S. § 13-1580 and its operation,
The Supreme Court of California in the case of In
re King, 3 Cal.3d 226, 90 Ca).Rptr. 15, 474 P.2d 983
(1970), held unconstitutional a California statute which
prescribed varying penalties between two categories of
non-supporting fathers—(1) those who remain out of
state for 30 days and (2) those who do not. Under the
statute, any father who remained out of the State of
California for 30 days while not supporting his child
was guilty of a felony and a father who committed the
identical act of criminal nonfeasance, but happened to be
within California, was guilty only of a misdemeanor.
The court found this provision a denial of equal pro-
tection of the laws because it created additional criminal
liability on an individual solely because he chose to re-
main outside the state. The court pointed out that:
“Tf a law has ‘no other purpose * * * than to
chill the assertion of constitutional rights by penaliz-
ing those who choose to exercise them, then it [is]
patently unconstitutional.’ United States v. Jack-
son, 890 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20
L.Ed.2d 188 (1968).’” 90 Cal.Rptr. at 21, 22
Similarly, in Spillers v. State, 84 Nev. 23, 486 P.2d
18 (1968), the Supreme Court of Nevada held uncon-
stitutional a statute which provided that a person con-
Ebi IO
5 eel) TP AR pel pai
a te ee ee er on aes -
40
victed of rape could not be sentenced to death if the case
were tried to the court, but death could be imposed if
affixed by a jury verdict. The court stated:
“A State may not prescribe different penalties for
the same offense without violating the equal pro-
tection concept. Thus the statute is unconstitutional
insofar as it allows a jury to impose a greater penalty
than a court for the same offense, thus violating
the Sixth and Fourteenth Amendments to the federal
constitution, and art. 1, $3 of our state constitu-
tion.” 436 P.2d at 23.
Although King and Spillers were not concerned with a
state constitutional right to bail, they denounced exactly
that which our statute attempts—(1) the prescribing of
different penalties for the same offense and (2) penaliz-
ing one for exercising a constitutional right. A.R.S. § 13-
1580 not only prescribes different penalties for the same
offense, but also creates an additional crime for the same
offense, which crime can only be committed after one has
exercised his constitutional right to bail.
As noted earlier, the sole purpose of bail is to secure
the attendance of a defendant at trial. Making it an
offense to be convicted of a felony which was committed
while on bail néither helps secure the attendance of a
defendant at trial nor insures compliance with the legai
processes of this State. It serves no other purpose than
to make bail an instrument of oppression which our
Supreme Court has denounced. Gusick, supra. Our legis-
lature has effectively chilled the assertion of the con-
stitutional right to bail by penalizing those who have
chosen to exercise it.
Regardless of the character of the crime, an accused on
bail is clothed with the presumption of innocence, Gusick,
supra. By singling out those admitted to bail, A.R.S.
13-1580 strips the innocent of that presumption. One
accused of a crime is not ipso facto a menace to society
as A.R.S. $ 13-1580 seems to presume. Such a presump-
tion erodes the very foundation of our system of criminal
justice, namely, the presumption of innocence.
41
If one is in fact a menace to society, adequate pro-
tective devices already exist. Art. 2 $22 of our Con-
stitution is itself designed to protect society from the
dangerous. Paragraph 2 of that section denies bail,
under designated circumstances, to a person who commits
a felony while admitted to bail. A court may in its
discretion set a higher bail for a defendant having
recidivist tendencies. Release from custody is conditioned
on good behavior while so released, A.R.S. § 13-1577(D),
and upon a breach of such condition, bail may be re-
voked. A.R.S. § 13-1578; Rendel, supra.
To achieve the objectives of A.R.S. § 13-1580, there
is a reasonable way available with a lesser burden on the
constitutionally protected right to bail. As was done in
the District of Columbia* the legislature could enact a
law enhancing the punishment of those who commit a
felony while released on bail or own recognizance. Un-
like our statute, in the District of Columbia it is not a
crime to commit a crime while released on bail.
Although we need not decide the question of inverse
discrimination, it should be noted that in Williams v.
Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586
(1970), it was recognized that if a wrongdoer were in-
sulated from punishment because of indigency, equal
2? D.C. Code Ann., § 23-1328 (1971), provides:
“Penalties for offenses committed during release
(a) Any person convicted of an offense committed while
released pursuant to section 23-1321 shall be subject to the fol--
lowing penalties in addition to any other applicable penalties:
(1) A term of imprisonment of not less than one year
and not more than five years if convicted of committing
a felony while so released; and
(2) A term of imprisonment of not less than ninety days
and not more than one year if convicted of committing a
misdemeanor while so released.
(b) The giving of a warning to the person when released
of the penalties imposed by this section shall not be a prerequi-
site to the application of this section.
(c) Any term of imprisonment imposed pursuant to this
section shall be consecutive to any other sentence of imprison-
ment.”
mB
5
*
ig
3
x
3
i
4
a
42
protection would be denied the offender who is punished.
The Supreme Court stated:
“The State is not powerless to enforce judgments
against those financially unable to pay a fine; in-
deed, a different result. would amount to an inverse
discrimination since it would enable an indigent to
avoid both the fine and imprisonment for nonpay-
ment whereas other defendants must always suffer
one or the other conviction.” 90 S.Ct. at 2024.
Under A.R.S. § 13-1580, one on bail or own recogni-
zance is punished twice for one act, whereas the person
who cannot afford bail is insulated from such double
punishment even though he committed the identical act.
The indigent who cannot afford bail is subject to a single
charge.
We agree that the legislative objective in enacting
A.8.S. § 13-1580 is commendable, but it is unfortunate
that, as written, it cannot withstand constitutional scru-
tiny. We therefore hold that A.R.S. § 18-1580 is un-
constitutional and appellant’s conviction on Count II ean-
not stand. The judgment of conviction and sentence im-
posed thereon are ordered vacated.
HERBERT F.. KRUCKER
Judge
CONCURRING:
JAMES D. HATHAWAY
Chief Judge
LAWRENCE HOWARD
Judge
43
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
No. 2 CA-CR 331
THE STATE OF ARIZONA, APPELLEE,
v.
MICHAEL J. CASSIUS, AKA CARL JACKSON, APPELLANT.
PIMA County
Superior Court
Cause No. A-2.2303
Filed Dee. 11, 1973
ORDER
IT IS ORDERED that the Motion for Rehearing be,
and the same hereby is, denied.
Dated: December 11, 1973.
/s/ James D. Hathaway
Chief Judge
/s/ Lawrence Howard
Judge
/s/ Herbert F. Krucker
Judge
ee ear wees
44
SUPREME COURT
STATE OF ARIZONA
No. 2867-PR
January 23, 1974
THE STATE OF ARIZONA, APPELLEE,
Vv.
MICHAEL J. CASSIUS, AKA CARL JACKSON, APPELLANT.
CORRECTED Copy
The following action was taken by the Supreme Court
of the State of Arizona on January 22, 1974 in regard
to ihe above-entitled cause:
“ORDERED: Petition for Review—Granted.”
The Supreme Court has adequate sets of briefs. There-
fore, no additional briefs will be necessary.
Clifford H. Ward
Clerk
By /s/ Mary Ann Hopkins
Deputy Clerk
45
SUPREME COURT
STATE OF ARIZONA
Supreme Court No. 2867-PR
[Caption Omitted in Printing]
The following action was taken by the Supreme Court
of the State of Arizona on February 19, 1974 in regard
to the above-entitled cause.
“ORDERED: Request for Oral Argument—Denied.
FURTHER ORDERED: Motion for Leave to Submit
Authorities—Granted.
FURTHER ORDERED: Defendant granted 30 days
in which to submit said au-
thorities.”’
Clifford H. Ward
Clerk
By /s/ Mary Ann Hopkins
Deputy Clerk
46
IN THE SUPREME COURT OF THE
STATE OF ARIZONA
En Bane
No. 2867-PR
THE STATE OF ARIZONA, APPELLEE,
Vv.
MICHAEL J. CASSIUS, AKA CARL JACKSON, APPELLANT.
Appeal from the Superior Court of Pima County
Honorable Jack Marks, Judge
(Cause No. A-22303)
JUDGMENT AND SENTENCE AFFIRMED
Opinion of the Court of Appeals, Division Two, 21 Ariz.
App. 78, 515 P.2d 903 (1973) Vacated Filed April 16,
1974
Gary K. Nelson
The Attorney General Phoenix
By Howard L. Fell
Assistant Attorney - neral Tucson
Frank Leto
Third Year Law Student Tucson
Attorneys for Appellee
John M. Neis
Pima County Public Defender Tucson
Ed P. Bolding, Former
Pima County Public Defender Tucson
By Richard Van Duizend
Former Assistant Public Defender Tucson
47
Jeffrey W. Hanes
Third Year Law Student Tucson
Attorneys for Appellant
HAYS, Chief Justice
The defendant, Michael J. Cassius, also known as
Carl Jackson, appealed from a judgment finding him
guilty of having committed a felony while free on his
own recognizance, in violation of A.R.S. § 18-1580. The
Court of Appeals reversed the trial court in State v.
Cassius aka Jackson, 21 Ariz. App. 78, 515 P.2d 903
(1973). We granted the state’s petition for review. We
vacate the opinion of the Court of Appeals and affirm the
judgment and sentence of the Superior Court.
Defendant, while free on his own recognizance on a
burglary charge, was caught burglarizing a_ building
less than three weeks after his release. Because of the
second burglary, he was indicted on two counts: (1)
first degree burglary, and (2) committing a felony while
free on his own recognizance. As a result of a plea
bargain, he pleaded guilty to the first count—the second
burglary—and agreed to be tried on the second count
with the evidence limited to the grand jury minutes and
the stipulation that he was free on his own recognizance
at the time of the second arrest. In return, the state
dismissed the charges based on the first burglary. The
trial judge sentenced him to one to two years in prison
for the burglary, and imposed a consecutive sentence of
one to three years after finding him guilty cn Count 2.
On appeal, defendant raised two questions: (1)
whether the second count was a violation of the double
jeopardy clause of the state and federal constitutions, and
(2) whether the second count was a violation of A.P.S.
§ 13-1641, which provides that a conviction and sentence
for a criminal act bars a subsequent prosecution for the
same act.
The Fifth Amendment to the United States Constitu-
tion provides that no person shall be twice put in jeopardy
for the same offense. This prohibition is binding upon
the states. Benton v. Maryland, 395 U.S. 784, 89 S. Ct.
48
2056, 23 L. Ed. 2d 707 (1969). The Arizona Constitu-
tion, Art. 2 § 10, contains substantially the same language.
The fallacy of defendant’s argument on the issue of
double jeopardy is that we are not, in the instant case,
dealing with the same offense. The first count charged
him with burglary. The second count charged him with
being convicted of a felony while free on his own recogni-
zance. These offenses are entirely different.
The question of whether two offenses are the same,
and the criteria for resolving that question, are set out
in State v. Tinghitella, 108 Ariz. 1, 491 P.2d 834 (1971).
There, we held that in order to constitute different of-
fenses, no element of either offense may be an element of
the other; i.e., the two offenses must not contain a com-
mon element. It is quite obvious that the two offenses
with which defendant was charged have no common
element.
The federal courts use a different test, less favorable
to the defendant. They hold that the offenses charged are
not the same if each contains an element not contained
in the other. Blockburger v. United States, 284 U.S. 299,
304, 52 S. Ct. 180, 76 L. Ed. 306 (1982). It is, there-
fore, perfectly clear that double jeopardy is not a viable
defense in this case. These matters are analyzed in 14
Arizona Law Review 513.
Defendant’s second point is that the conviction and
sentence under A.R.S, § 13-1580 violates A.R.S. § 13-1641
which reads:
“An act or omission which is made punishable by dif-
ferent sections of the laws may he punished under
either, but in no event under more than one. An
acquittal, or conviction and sentence under either
one bars a prosecution for the same act or omission
under any other.”
The material part of A.R.S. § 13-1580 reads:
“A person who is convicted of committing any
felony offense . . . which felony offense is committed
while such person is released on his own recognizance
on a separate felony charge, is guilty of the offense
of committing a felony while released on... . his
49
own recognizance, and upon conviction .. . shall be
punished by imprisonment . . . for not more than
five years.”
It is, of course, obvious that these two sections can
be read as contradictory unless some sort of statutory
construction is applied to them, since a person who
commits a felony while free on his own recognizance,
may be guilty of two felonies under § 13-1580.
We will not assume that the legislature, in enacting
a statute, was unaware of an existing statute. Arizona
State Board of Directors v. Phoenix Union High School
Dist., 102 Ariz. 69, 424 P.2d 819 (1967). Where statutes
in pari materia are in apparent conflict, they should
be construed in harmony so as to give force and effect to
each. State Land Dept. v. Tucson Rock & Sand Co., 107
Ariz. 74, 481 P.2d 867 (1971). Where a later statute
does not expressly repeal a former one, they should be
construed so as to give effect to each, if possible. State
v. Jaastad, 43 Ariz. 458, 32 P.2d 799 (1934). When
dealing with separate statutes, the court must construe
them so as to give meaning to both, if possible. Finch
v. State Department of Public Welfare, 80 Ariz. 226,
295 P.2d 846 (1956). The presumption is that the legisla-
ture did not intend to do a futile thing by including
in a statute a provision which is nonoperative or invalid.
Kelly v. Bastedo, 70 Ariz. 371, 220 P.2d 1069 (1950).
Where a statute first expresses a general intent, and
later an inconsistent particular intent, such particular
intent will be taken as an exception to the general intent,
and both will stand. Sakrison v. Pierce, 66 Ariz. 162,
185 P.2d 528 (1947).
We believe the application of these ruies should and
does lead us to the conclusion that the legislature in-
tended to engraft § 13-1580 onto § 13-1641 as an excep-
tion so that the two statutes should be read to mean that
for one act there may be only one prosecution except
when it is committed while the accused is out of jail on
his own recognizance. Read in this way, neither quoted
section conflicts with the other, and each is given full
effect. We therefore hold that the position taken by
defendant in his second point is untenable.
Mae ORE ogg is St Eat hated pee Shes OUR SE sali ohh i Ae a i haa lh eal eile es
AAI IO, pet ENS
50
Ordinarily, covering all of the points made by defend-
ant in his appeal brief disposes of the appeal and points
the way to the final disposition, unless a search of the
record discloses some fundamental error not raised by
defendant. We have examined the record for fundamental
error and find none. However, we note that the Court
of Appeals also examined the record for fundamental
~- error and found that it existed in the form of a violation
of the equal protection clause of the State and federal
constitutions. The court’s holding is based on the argu-
ment that A.R.S. § 13-1580 creates two classes of per-
sons and treats them differently. The court felt that
the class which has exercised its constitutional right to
bail has been singled out by making it a crime for a
member of that class to be convicted of a crime, while the
class which has not exercised the right to bail is not so
restricted. We completely disagree with this reasoning.
While it is true that the right to bail has a constitu-
tional basis, it has always been recognized that limita-
tions may be imposed upon it. Generally, bail is granted
on condition that the defendant stay within the court’s
jurisdiction and that he conduct himself as a law-abid-
ing citizen. Rule 7.8 of the new Rules of Criminal
Procedure, 17 A.R.S., makes this last requirement manda-
tory. There has never been any doubt that these are
legitimate conditions. The Court of Appeals felt that
our statute has the effect of chilling the assertion of the
constitutional right to bail by penalizing those who
choose to exercise that right. But merely requiring that
a man abide by the law is not a chilling limitation; it is
a requirement that he is obligated to follow whether
or not on bail, and it existed even before bail was
granted.
The opinion of the Court of Appeals recognizes that it
would be constitutional to increase the punishment for a
crime committed while out on bail! We fail to see the
distinction. As a matter 9f fact, we have a recidivist
Statui*, enhancing the punishment of defendants who
have prior convictions, and it has never been held to be
a violation of the equal protection clauses. In State vy.
Sanchez, 110 Ariz. 214, 516 P.2d 1226 (1973), we cited
51
the following language of the United States Supreme
Court:
“The equal protection c’ause of the 14th Amend-
ment does not take from the state the power to
classify in the adoption of police laws, but admits
the exercise of a wide scope of discretion in that
regard, and avoids what is done only when it is
done without any reasonable basis, and therefore is
purely arbitrary.” 516 P.2d at 1229.
* * * *
“When the classification in such a law is called
in question, if any state of facts reasviiably can be
conceived that would sustain it, the existence of
that state of facts at the time the law Was enacted,
must be assumed.” 516 P.2d at 1229.
* a7 o *
“One who assails the classification in such a law
must carry the burden of showing that it does not
rest on any reasonable basis, but is essentially ar-
bitrary. Lindsley v. Natural Carbonic Gas Co., 220
U.S. 61, 78-79, 31 S. Ct. 387, 240, 55 L. Ed. 369
(1911).” 516 P.2d at 1229,
It is true that, as the Court of Appeals points oui,
it is unconstitutional to legislate that different treatment
be accorded to persons placed by statute into different
classes, on the basis of criteria wholly unrelated to the
objective of that statute. We see no application of that
rule to this case.
a)
a ee
Le phe Rie LT AEE ORS BM
52
The opinion of the Court of Appeals is vacated, and
the judgment and sentence of the Superior Court are
affirmed. -ay
JACK D. H. Hays
Chief Justice
CONCURRING:
JAMES DUKE CAMERON
Vice Chief Justice
FRED C. STRUCKMEYER, JR.
Justice
Lorna E. Lockwoop
Justice
WILLIAM A. HOLOHAN
Justice
53
SUPREME COURT
STATE OF ARIZONA
Phoenix 85007
May 22, 1974
Supreme Court No. 2867-PR
Pima County No. A-22303
STATE OF ARIZONA, APPELLEE,
Vv.
MICHAEL J. CASSIUS AKA CARL JACKSON, APPELLANT.
The following action was taken by the Supreme Court
of the State of Arizona on May 21, 1974 in regard to
the above eiititled cause:
“ORDERED: Motion for Rehearing—Denied.”
Copy of Order Affirming Judgment and Sentence en-
closed herewith.
i
RHEE
. s
te a hale
54
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1974
No. 74-5140
MICHAEL J. Cassius, PETITIONER,
Vv.
ARIZONA
On petition for writ of Certiorari to the Supreme
Court of the State of Arizona.
On consideration of the motion for leave to proceed
herein in forma pauperis and of the petition for writ of
certiorari, it is ordered by this Court that the motion to
proceed in forma pauperis be, and the same is hereby,
granted; and that the petition for writ of certiorari be,
and the same is hereby, granted.
October 15, 1974
wWous GOVERNMENT PRINTING OFFICE, 1974 S62769 79°
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.