Opposition — Quiroz v. Arizona

Supe ne Court, UU

I, FiLED

| a

+ an

a

i ee ed

| APR AS 1976

| MICHAEL RODS, Je. cura |

IN THE aE ER

SUPREME COURT OF THE UNITED STATES

October Term, 1975

NO. 75-1343

ALBERT ARTHUR QUIROZ, Petitioner,

-Vés-

STATE OF ARIZONA, Respondent.

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

BRUCE E. BABBITT

The Attorney General of

the State of Arizona

WILLIAM J. SCHAFER III

Chief Counsel

Criminal Division

THOMAS A. JACOBS

Assistant Attorney General

159 State Capitol Building

Phoenix, Arizona 85007

Attorneys for RESPONDENT

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i

INDE X

IN THE Page

SUPREME COURT OF THE UNITED STATES QUESTION PRESENTED

October Term, 1975 WHETHER THE SENTENCE

IMPOSED ON PETITIONER

| WAS IN VIOLATION OF HIS

NO. 75-1343 RIGHT TO DUE PROCESS?

OPINION BELOW AND JURISDICTION 1

ALBERT ARTHUR QUIROZ, Petitioner STATEMENT OF THE CASE 1

nttie STATEMENT OF ISSUE

STATE OF ARIZONA, Respondent. THE SENTENCE IMPOSED

UPON PETITIONER WAS IN

; ; FULL COMPLIANCE WITH THE

DUE PROCESS GUARANTEES

a RESPONSE TO PETITION FOR OF THE FOURTEENTH

AMENDMENT. 3

WRIT OF CERTIORARI

CONCLUSION 14

BRUCE E. BABBITT

the Attorney General of

the State of Arizona

WILLIAM J. SCHAFER III

Chief Counsel

Criminal Division

THOMAS A. JACOBS

Assistant Attorney General

159 State Capitol Building

Phoenix, Arizona 85007

Attorneys for RESPONDENT

ii

©@

Case

State v. Becerra

State v. Benge

State v. Cortez

State v. Dixon

State v. Kunz

State v. Pierce

Townsend v. Burke

TABLE OF CASES AND AUTHORITIES CITED

Page

Jones v. United States

113 U.3.App. D.C. 233

307 F.2d 190 (1962) 11

534 P.2d 743

111 Ariz. 538 (1975) 14

520 P.2da 843

110 Ariz. 473 (1974) 13

408 P.2d 410

2 Ariz.App. 306 (1965) 14

21 Ariz.App. 517

521 P.2d 148 (1974) 13

259 A.2da 895

55 N.J. 128 (1969) rer rk

494 P.2da 696

108 A. 174 (1972) 7

334 U.S. 736

68 S.Ct. 1252

92 L.Ed. 1690 (1948) 10

United States v. CiFarelli

401 F.2d 512

(2nd Cir. 1968) 11

United States v. Doyle

348 F.2d 715

(2nd Cir. 1965)

li

iii

Case Page

United States v. Marcello

423 F.2d 993

(5th Cir. 1970) ll

United States v. Onesti

411 F.2d 783

(7th Cir. 1969) 11

United States ex rel. Long v. Pate

418 F.2d 1028

(7th Cir. 1969) 11

United States v. Weston

448 F.2d 626

(9th Cir. 1971) 4,5,6,11

Williams v. New York

337 U.S. 241

69 SeCt. 1079

93 L.Ed. 1337 (1949) 4,5,6,10,11,12,13

AUTHORITIES

Ariz.Rev.Stat.Ann.

§ 36-1002.07 1,3

Criminal Justice Sentencing

Alternatives and Procedures

§ 4.4(b) 8

United States Constitution

14th Amendment 3

OPINION BELOW AND JURISDICTION

Petitioner's conviction and sentence were

affirmed by the Supreme Court of the State

of Arizona on November 19, 1975. A motion for

rehearing was denied on December 23, 1975,

and an order affirming judgment was entered.

Respondent adopts petitioner's jurisdictional

statement.

STATEMENT OF THE CASE

Petitioner was charged by indictment with

the unlawful sale and transportation of mari-

juana in violation of Ariz.Rev.Stat.Ann.

§ 36-1002.07. As the result of a plea bargain,

the sale charge was dismissed in return for

petitioner's plea of guilty of transportation

entered on December 4, 1973. A presentence

report was filed with the court, and on

February 4, 1974, petitioner was sentenced

to a term of Yrom five to eight years in

prison.

A motion to vacate the sentence was

filed on February 8, 1974, based on specified

assertions of error in the probation officer's

report. Execution of sentence was temporarily

stayed, and hearing on the motion set for

February 19, 1974. The hearing consisted of

extensive testimony over three days from

eighteen defense witnesses (including Mr.

William Ryerse, author of the sroceubenee

report). Also, the supplemental presentence

report and addendum thereto were marked as

exhibits at the hearing. Cross-examination

of Mr. Ryerse was partially based on these

reports.

On March 5, 1974, the matter was sub-

mitted, and two days later the court ruled

that the petition to vacate sentence be

granted and the sentence reduced to a prison

term of not less than 5 years and not more

than 5 years and 1 day. (Minute Entry,

March 7, 1974.)

The unreported memorandum decision of the

Supreme Court of the State of Arizona

correctly sets forth the facts of the case

and issue on appeal, and that decision is

hereby adopted as if set forth in full here-

in. (See Appendix C of the Petition for

Writ of Certiorari.)

REASONS WHY THE WRIT SHOULD NOT ISSUE

I

STATEMENT OF ISSUE

THE SENTENCE IMPOSED UPON

PETITIONER WAS IN FULL COM-

PLIANCE WITH THE DUE PROCESS

GUARANTEES OF THE FOURTEENTH

AMENDMENT.

Petitioner presents a four-part

argument challenging the validity of the

modified sentence imposed on petitioner on

March 7, 1974. The modification resulted

from petitioner's motion to vacate sentence

filed on February 8, 1974, four days after

he was initially sentenced to serve 5 to 8

years in the Arizona State Prison for trans-

porting marijuana, in violation of Ariz.Rev.

Stat.Ann. § 36-1002.07.

Subsection 8 of petitioner's motion to

vacate this sentence read as follows:

"Tt appears that Mr. Ryerse or

someone unknown to the .petition-

er went far afield from the four

corners of the probation reports

furnished to defense counsel

and orally informed the Court

of things that require further

investigation and foundation

to test their truth or

accuracy."

It is this allegation in addition to several

summary statements in the presentence reports

filed with the sentencing court that consti-

tutes the crux of the petition.

” “Respondent does not dispute the princi-

ples of United States v. Weston, 448 F.2d

626 (9th Cir. 1971) and Williams v. New York,

337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337

(1949), relied on by petitioner. In fact, it

is these principles that uphold the ruling

of the Arizona Supreme Court herein.

Respondent takes issue, however, with

petitioner's application of the facts of this

case to the holdings of Williams and Weston,

supra. Petitioner attempts to analogize this

case with the Weston situation. However,

5

Weston differs from Williams in that Weston

vigorously denied the accuracy of the charges

made in the probation report and objected to

the judge's consideration of them without

more substantiation. A confidential report

was submitted to the trial court purportedly

corroborating the statements made against

Weston in the original presentence report.

The trial court accepted the additional infor-

mation as sufficient corroboration, and

sentenced Weston to the maximum term. The

Ninth Circuit Court of Appeals disagreed with

the lower court and vacated the sentence.

In holding that Williams, supra, is

still good law, the Ninth Circuit requires

more than unreliable hearsay constituting

broad charges without some factual basis.

The charge Of Weston's involvement with

heroin traffic was a detailed part of the

presentence report (listing places, amounts

of money, frequency of sales, etc.). However,

the source of this uncorroborated evidence

presented the sentencing judge was only the

opinion of unidentified personnel in the

Bureau of Narcotics and Dangerous Drugs and

the unsworn statement of one agent that an

informer had given him some information

lending potential support to the charge. In

the spirit of the principles set forth in

Williams, supra, the Weston court could not

accept such bare-bones hearsay to support a

maximum penalty.

The opportunity given Weston, upon

vacation of sentence, to rebut the broad

allegations of the report was likewise

granted in petitioner's case. The testimony

elicited during an extensive post-sentence

hearing resulted in a modification of sentence.

The principles of both Williams and Weston

were adhered to in this case. The three day

hearing on Petitioner's motion to vacate

sentence consisted of testimony from 18

witnesses, including the author of the pre-

sentence report (Mr. Ryerse), and one of

petitioner's codefendants. The general

A

statements included in the report were discussed

at length, and Ryerse cross-examined extensive-

ly. The trial court became fully apprised

of the facts surrounding petitioner's

participation in the trafficking of drugs

and his involvement in this one particular

transaction. The opportunity initially

denied Weston was granted in this case.

Pursuant to Arizona law at the time of

the report, Ryerse excised certain portions

from the report as obtained under a promise

of confidentiality and part of an on-going

police investigation. (R.T., March 5, 1974,

at 10, 12.) ‘The court agreed to protect this

confidentiality, and sustained several

objections to questions concerning the source

of Ryerse's information. _(R.T., February

19, 1974, at 52, 59-60, 67, 69-70.) [This

principle of confidentiality was recognized

in State v. Kunz, 259 A.2d 895, 55 N.J. 128

(1969), a case heavily relied upon by

petitioner. ]

In State v. Pierce, 494 P.2d 696, 108

Ariz. 174 (1972), the Arizona Supreme Court

adopted the American Bar Association's

Standards for Criminal Justice Sentencing

Alternatives and Procedures § 4.4(b), which

states in part ".. . the court should be

permitted to except from disclosure...

sources of information which have been

obtained on a promise of confidentiality".

The further requirement that the court

state for the record the reasons ior not

disclosing certain parts of the report was

followed in this case. (R.T., February 19,

1974, at 52.) As stated by the Arizona

Supreme Court in its decision on this appeal,

° . we believe that the reasons given

by the court for excising a part of the

presentence report were adequate”.

It should be pointed out, however, that

in spite of sustaining the aforementioned

objections to questions of Ryerse, the

sought-after information was elicited during

the course of the hearings. Ryerse stated

that the source of his information was two

prosecutors in the county attorney's office.

(R.T., February 19, 1974, at 50.) A further

basis of the challenged statements by Ryerse

were remarks by petitioner to Ryerse and the

police as to his involvement in a narcotics

"ring". (R.T., February 22, 1974, at

9-10.) Ryerse testified that he also consid-

ered the grand jury transcript; statements

made to him by codefendant Stadie as to large

amounts of marijuana seen in petitioner's

house; and information provided in discus-

sions with petitioner's first defense attorney

as to petitioner's social involvement with

"organization" people. (R.T., March 5, 1974,

at 20-23, 83.)

Ryerse further stated, and most crucial

to a determination of petitioner's motion

to vacate, that he had no specific information

of petitioner's involvement with any specific

narcotics offenses. (R.T., March 5, 1974,

at 27-28.) The court was thereby aware of

the strength of the statements made in the

presentence report. Through an effective

10

examination of Ryerse, plus the testimony of

codefendant Maytoreno exculpating petitioner,

(R.T., March 5, 1974, at 54, 58-59, 61),

and petitioner's own admission of limited

participation, the sentence imposed on February

4, 1974, was reduced on March 7, 1974, to

the minimum statutory prison term (five years

to five years and one day). Although the

lower court did not specify its reasons for

modification, it is obvious from the nature of

the proceedings and testimony adduced therein

that petitioner's classification as a member

of a large-scale criminal enterprise was

undermined and diminished. There is no

evidence in this case that the sentence was

predicated on false information fas prohibited

by Townsend v. Burke, 334 U.S. 736, 68 S.Ct.

1252, 92 L.Ed.1690 (1948)]. Any misstate-

ments or inaccurate implications contained

in the presentence report were rectified at *®

the hearing on petitioner's motion.

Williams v. New York, supra, and its

ll

12

progeny, support the proceedings herein as

; criminal conduct may be properly considered,

consistent with the due process standards of

even though the defendant was never charged

the Fourteenth Amendment. Williams held

with it or convicted of it" (448 F.2d at

that due process does not require that infor- ;

633). Evidence in this case of other criminal

mation relied upon in sentencing must be

conduct was mitigated and the modified

restricted to that given in open-court by

sentence imposed thereafter.

witnesses subject to cross-examination.

As stated in Williams, supra, a senten-

Williams has been relied on by a number of

cing judge is not confined to the narrow

courts in holding that evidence of other

issue of guilt. Highly relevant -- if not

criminal conduct not resulting in a conviction

essential -- to his selection of an appropri-

may be considered in imposing sentence.

ate sentence is the possession of the fullest

Jones v. United States, 113.U.S.App. D.C.

233, 307 F.2d 190 (1962); United States v.

information possible concerning the defendant's

life and characteristics. The rigid adher-

Doyle, 348 F.2d 715 (2nd Cir., 1965); United

ence to restrictive rules of evidence properly

States v. CiFarelli, 401 F.2d 512 (2nd Cir.,

applicable to trials does not apply to the

1968); United States v. Marcello, 423 F.2d

sentencing aspect of criminal justice. "The

993 (5th Cir., 1970); United States v. Onesti,

due process clause should not be treated as

411 F.2d 783 (7th Cir., 1969); United States

a device for freezing the evidential proce-

> ex rel. Long v. Pate, 418 F.2d 1028 (7th Cir.,

1969).

dure of sentencing in the mold of trial

procedure". Williams, supra, 337 U.S. at

The Weston court stated that "We do not 26)

desire to transform the sentencing process

: Petitioner's reliance on State v. Kunz,

into a second trial, and we believe that other

supra, is misleading. Kunz involved a

13

substantive change in New Jersey's sentencing

procedure whereby presentence reports would

now be disclosed to the defense. Prior to

Kunz, the report or any part thereof was

only available to the trial court. Such was

not the case herein.

The State of Arizona, in adhering to the

Williams rationale was correct in upholding

the sentence imposed by the trial court.

State v. Benge, 520 P.2d 843, 110 Ariz. 473

(1974); State v. Dixon, 21 Ariz.App. 517, 521

P.2d 148 (1974). The Arizona Supreme Court,

in disposing of this issue best summarized

the case in stating that:

". . . we have read the excised

portion of the presentence

report and while we find that

it expresses the bias of the

probation officer, we do not

find any factual allegations

which were not met in the

extensive cross-examination

of the probation officer and

his arguments to the court."

The gist of petitioner's argument is

an assertion that “he presented a strong

case for probation". (Petition for Writ of

Certiorari, at page 6.) This argument is

14

without merit in fact or in law. It is well

settled that probation is not a matter of

right, nor is the trial judge required to

spell out its reasons for either granting

or denying probation. State v. Becerra,

534 P.2d 743, 111 Ariz. 538 (1975). Further-

more, there is no requirement that a first

offender be given a minimum sentence.

State v. Cortez, 408 P.2d 410, 2 Ariz.App.

306 (1965). The penalty imposed in this

case falls within the limits of the statute

(five years - life), and does not clearly

appear to be excessive.

CONCLUSION

Respondent submits that petitioner was

afforded full due process in the trial

court. The modification of sentence to the

minimum statutory period speaks for itself.

Petitioner's allegations criticizing

particular statements in the presentence

report were fully investigated and aired

in open-court, resulting in an informed

15

sentencing court. The thrust of his petition

is an attempt to argue the merit of probation

as opposed to prison time.. That determination

is a matter of trial court discretion, and

in the absence of abuse should remain

undisturbed.

RESPONDENT RESPECTFULLY submits that the

Petition for Writ of Certiorari herein should

be denied.

Respectfully submitted,

BRUCE E. BABBITT

the Attorney General

of the Syate of Arizona

WILLIAM J CHAFE

Chief ComMsel

Criminal Division

Ubenna UA.

THOMAS A. JACOB

Assistant Attorney General

Attorneys for RESPONDENT