Petition — Stewart v. Superior Court of Pima County

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FEB 20 1980

“WHOHAEL RODAK, JR. CLERR

In THE " mn

Supreme Court of the United Dtates

OcroBER TERM, 1979

“ 79-1287

JOHN JACK STEWART,

Petitioner,

V.

SUPERIOR COURT, PIMA COUNTY,

ARIZONA, and THE ATTORNEY

GENERAL OF THE STATE OF

ARIZONA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

BENJAMIN LAZAROW

177 N. Church, Suite 613

Tucson, Arizona 85701

Counsel for Petitioner

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INDEX

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Reasons for Granting the Writ

1. The decision of the Ninth Circuit Court of Appeals,

in regard to the voluntariness of Petitioner’s guilty

plea, directly conflicts with the due process prin-

ciples enunciated by this Court in the Case of

PL I IE veces ccc ce savcces 7

2. The court below has applied a test for the determi-

nation of cruel and unusual punishment which

conflicts with the principles enunciated by this

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3. The Ninth Circuit Court failed to decide the issue

of whether Arizona Revised Statutes §13-320.01

was applied to Petitioner for a purpose not conso-

nant with the purpose of the legislation itself in such

a way as to be an arbitrary and discrimatory

application of said statute and in violation of his due

process rights under the Fourteenth Amendment to-

the United States Constitution .................. 12

4. Arizona Revised Statutes §13-320.01 violates the

due process clause of the Fourteenth Amendment

to the United States Constitution because of

I a aS whe wR MON RUN is Rh dbs de cc cceges 14

a EE OT OO ee a 16

Appendix

A) Memorandum Opinion of the Court of Appeals for

SUSE ST a 16

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INDEX (continued)

B) Order of the United States District Court for the

District of Arizona denying the Writ of Habeas

C) Opinion of the Court of Appeals, Division Two,

OE I Ge PENOLA he news dvd ev ccbceviees

CITATIONS

Blackledge v. Perry

See Se BE RINT eee bcs cee e ee ne recessed dues

Coker v. Georgia

Oe es TED wa c wedcde sede be chnavgiebeee dena

Crawford v. United States

be BoE Se es a re ee pyre

Edwards v. Garrison

Se ee Se SE GAG: PEP kb wos patecus ceases

Fasulo v. United States

47 S.Ct. 200, 201 27 U.S. 620, 71 L.Ed. 443 (1926)

Gregg v Georgia

428 U.S. 153, 96 S.Ct. 2909 49 L.Ed.2d 859 (1976) ....

McCarthy v. United States

SIE aie'ye's.a's BRWLW 6d Hgw 600d ewieedss

Menna v. New York

ee PEED ies crac ods dovccvebakeaees

Papachristou v. City of Jacksonville

Se i UTE ee chai vedaccucegheecisesans

Silverman v. United States

Be ee Gt EE, LOD ove see vctcscnacndsdbens

United States v. Bruce

en cae Re Ss SFO ko ev tweaked cm eee Sevebee

PAGE

24

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INDEX (continued)

United States v. Kelem

G36 FOR SOR, DAT Toe Cae. FRG) og cc ccceeviccccesias

United States v. McNeive

<< Pe Br fF Fe Moy, Seer eer eT eee ee Peer

Walters v. Harris

BOD Fe Fee Gree Ce. TOTS oc keh vince cee ciesadecess

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES

Fourteenth Amendment to the

Coeeeeee Pen OID gg. cos cewcence vases

Eighth Amendment to the

Uintied States COmettOtION 2. wc ccc ccc ccccscccce

Arizona Revised Statutes

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PAGE

13

In THE

Supreme Court of the United States

OcToBER TERM, 1979

No.

JOHN JACK STEWART,

Petitioner,

Vv

SUPERIOR COURT, PIMA COUNTY,

ARIZONA, and THE ATTORNEY GENERAL

OF THE STATE OF ARIZONA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

The petitioner, JOHN JACK STEWART, prays that a writ of

certiorari issue to review the opinion and judgment of the United

States Court of Appeals for the Ninth Circuit rendered in these

proceeds on November 21, 1979.

OPINIONS BELOW

The unreported memorandum opinion of the Court of Appeals

for the Ninth Circuit appears in Appendix A, infra. The order of the

United States District Court for the District of Arizona denying the

Writ of Habeas Corpus appears in Appendix B, infra. The opinion

of the Court of Appeals, Division Two, of the State of Arizona is

reported as State V. Stewart, 118 Ariz. 281, 576 P.2d 140 (1978) and

appears in Appendix C. The Arizona Supreme Court denied review

without opinion.

JURISDICTION

The Memorandum Opinion of the United States Court of

Appeals for the Ninth Circuit affirming the Arizona District Court’s

2

denial of the petition for a writ of Habeas Corpus was filed on

November 21, 1979. A petition for rehearing was timely filed and

thereafter denied on January 21, 1980.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

QUESTIONS PRESENTED

1. Whether the action of the United States Court of Appeals for

the Ninth Circuit in refusing to grant a petition fora Writ of Habeas

Corpus violates Petitioner’s due process rights under the Fourteenth

Amendment to the United States Constitution, where said court was

of the opinion that Petitioner’s actions did not violate the statute

under which he was charged and where Petitioner contends that his

guilty plea was involuntary because he did not realize or understand

that his acts were not proscribed by the statute.

2. Whether, under the facts of this case, the sentence of incarcera-

tion in the Arizona State Prison for not less than five nor more than

ten years is excessive and thus cruel and unusual punishment under

the Eighth Amendment to the United States Constitution.

3. Whether, Arizona Revised Statutes §13-320.01 was applied to

Petitioner for a purpose not consonant with the purpose of the

legislation itself, thus constituting an application of the statute to

Petitioner in an arbitrary and discriminatory manner in violation of

his due process rights under the Fourteenth Amendment to the

United States Constitution.

4. Whether Arizona Revised Statutes §13-320.01 fails to meet the

requirements of the due process clause of the Fourteenth Amend-

ment to the United States Constitution because of vagueness.

TABLE OF AUTHORITIES INVOLVED

Constitution of the United States, Amendment XIV, §/:

“. .. nor shall any state deprive any person of life, liberty, or

property without due process of law. . .”

Constitution of the United States, Amendment VIII:

“Excessive bail shall not be required nor excessive fines

imposed, nor cruel and unusual punishments inflicted.”

Arizona Revised Statutes §13-320.01:

“Any person who, pursuant to a scheme or artifice to

defraud, knowingly or intentionally obtains or attempts to

obtain money, property or any other thing of value by means of

false or fraudulent pretenses, representations or promises is

guilty of a felony punishable by imprisonment in the state

prison for not more than 20 years, by a fine not to exceed

$20,000, or both.”

STATEMENT OF THE CASE

On January 4, 1977, the Pima County Attorney’s Office, State of

Arizona, charged Petitioner, JOHN JACK STEWART, by infor-

mation alleging five counts of obtaining money pursuant to a fraud-

ulent scheme or artifice in violation of Arizona Revises Statutes

§ 13-320.01.

The charges set forth in the information resulted in a finding of

probable cause made by a Justice of The Peace at the conclusion of a

lengthy preliminary hearing conducted on December 30, 1976. Fol-

lowing the filing of the information, the Petitioner, moved, on

January 20, 1977, for a redetermination of probable cause pursuant

to Rule 5.5, Arizona Rules of Criminal Procedure. The thrust of said

motion was that the State has simply failed to put on any evidence

towards that element of the offense dealing with a “scheme or

artifice.” Said motion was heard, taken under advisement, and on

March 2, 1977, denied.

On March 17, 1977, the Petitioner filed a motion to dismiss the

information arguing that the applicable statute, A.R.S. §13-320.01

was unconstitutional due to vagueness, and violative of rights

secured to Petitioner by the due process clause of the Fourteenth

Amendment to the United States Constitution.

Despite the obvious controversy concerning the applicability of

Arizona Revised Statutes §13-320.01 to the facts developed at the

preliminary hearing and the actions of the Petitioner, a plea agree-

ment was ultimately entered into between the Petitioner and the

Pima County Attorney’s Office. Under the terms of the agreement,

Petitioner would plead guilty to one count of the information onthe

condition that the remaining four counts would be dismissed. The

4

change of plea proceedings took place in Superior Court, in and for

the County of Pima, State of Arizona, on May 24, 1977. On that

date the following exchange took place between the Court and the

Petitioner in an effort to determine the proper factual basis for his

plea to the charge.

“THE COURT: If I accept your plea of guilty to count | you

would be telling me on or about November the 16th of last year

you, pursuant to a scheme or artifice intended to defraud or to

obtain from Kathleen H. Polley (?) money by means of fraud,

false or fraudulent pretenses, or promises.

Did you on or about that date make certain representations

to a person by that name,and that you knew these representa-

tions were false or misleading?

A. Yes, your Honor.

Q. Did you intend to obtain money or property through the

representations made by you?

A. Yes, sir.

Q. You intended to use the proceeds for your own purposes,

eventually?

A. Yes, your Honor.

Q. The record may show the court finds there is a factual basis

for accepting the plea of guilty to count 1.”

The specific conduct to which the Petitioner plead guilty was set

forth in count one of the information. Said count accused him of

obtaining money from KATHLEEN H. FOLEY, an elderly woman,

pursuant to a fraudulent scheme or artifice.

On November 16, 1976, one man, the Petitioner, appeared at Mrs.

Foley’s house and asked to inspect her roof, to see if any repairs were

necessary. Because Mrs. Foley’s house was old and had undergone

previous roof repairs she permitted the Petitioner to make an inspec-

tion. Thereafter, additional workmen arrived at Mrs. Foley’s home

and proceeded to go up onto the roof. The Petitioner discussed with

Mrs. Foley the roof condition and the fact that spray painting the

roof with a coat of aluminum paint would keep it in better condition.

Petitioner originally requested nine hundred dollars ($900.00) from

Mrs. Foley for spray painting the roof. However, after Mrs. Foley

balked, the Petitioner agreed on a price of six hundred dollars

($600.00), although he had been willing to go as low as three

hundred dollars ($300.00).

Petitioner ultimately went onto the roof himself and the job was

completed approximately one-half hour later. Mrs. Foley was

amazed that the work had been completed so quickly. Nevertheless,

she asked Petitioner to drive her to the credit union so that she could

draw a check and make payment to him. Subsequent to this, Mrs.

Foley testified that she had felt she had made a mistake.

Two other elderly women, LOUISE HILLGERT and MARY

WORRAL, also testified at Petitioner’s preliminary hearing, result-

ing in other separate counts of the information. These counts were

dismissed pursuant to the plea agreement.

Ms. Hillgert testified that Petitioner and two other men came to

her house in a truck and sought to solicit house repair business. The

roof of her house had been leaking. Accordingly, after Ms. Hillgert

climbed a ladder and overlooked the roof to give instructions as to

what should be done, she authorized the Petitioner to begin work.

While Ms. Hillgert claimed she authorized only a portion of the

work, Petitioner, nevertheless, worked on her entire roof and ai

adjacent roof. Her testimony poses much confusion as to the agreed

upon price for the Petitioner’s services. Ultimately, Petitioner

charged her two hundred and ten dollars ($210.00) and when she

balked at paying it, he made no threats and simply walked away. In

the end, Ms. Hillgert felt that she had been dumb to pay the bill.

The third woman, Ms. Worral, had several contacts with Peti-

tioner and his co-workers in which he did work on the roof and

foundation of her house. Initially, Petitioner had come to her house

and inquired about home repair work. In fact, her roof had been

leaking. Ms. Worral paid in excess of two thousand dollars for the

work and while she felt the costs was high, she nevertheless said

nothing.

At the time of sentencing, the trial court had before it a present-

ence report authored by a deputy of the Investigative Unit of the

Pima County Adult Probation Department. That report, together

with several other matters of record, established the following facts

concerning Mr. Stewart which were ms to the Judge at sen-

tencing: That he was a twenty-nine year old male, married to the

same woman for the last eight years, and the father of two young

children, ages six and one and one-half years respectively; that he

had neither a previous felony arrest record nor a prior felony convic-

tion record and that the charge to which he was pleading was a crime

of a non-violent nature; that he was an out-of-state resident who

intended to move with his family back to Delaware, his original

home State; that he was employable as a painter and had been in

that profession for a number of years; and that he had made restitu-

tion, through his attorney, to all of the alleged victims in the case.

Furthermore, the presentence report smacked of the probation

officer’s apparent dislike for Mr. Stewart. This dislike was based

upon what she felt to be his “overly ingratiating manner,” his

inability to recall a minor arrest record for misdemeanors, his

allegedly false statement as to his education background which

falsity was eventually disproven by his trial counsel at the time of

sentencing, and his poor performance on a polygraph test that he

had submitted to voluntarily. Finally, regardless of the probation

officer’s obvious dislike for Mr. Stewart, she, however, recognized

that he was a good probation candidate as reflected in her primary

recommendation to the Court.

The Court sentenced Mr. Stewart on June 13, 1977, to aterm in

the Arizona State Prison of not less than five years nor more than

ten years. Additionally, the Court fined Mr. Stewart in the sum of

two thousand five hundred dollars ($2,500.00).

Following sentencing, Mr. Stewart moved for a modification of

sentence arguing that the five to ten years of incarceration imposed

by the Court was excessive and constituted cruel and unusual pun-

ishment as applied to him. Said motion was ultimately denied by the

trail court on July 15, 1977.

Petitioner Stewart was allowed to remain free on bail while

appealing the judgment and sentence of the Court. Petitioner’s

judgment and sentence was appeaied to the Court of Appeals,

Division Two, in and for the State of Arizona. The Court of Appeals

affirmed Petitioner’s conviction and sentence on January 24, 1978

_ and remanded the matter to the Superior Court for clarification of

the amount of the fine imposed. A Petition for Rehearing was

denied by the Arizona Court of Appeals and the Petition for Review

was denied by the Arizona Supreme Court.

Thereafter, a Petition for Writ of Habeas Corpus by a Person in

State Custody, pursuant to 28 U.S.C. §2254, was filed in the Federal

District Court, for the District of Arizona on April 7, 1978. The

Petition was denied on July 6, 1978. Petitioner timely filed a Notice

of Appeal and an Application for Certificate of Probable Cause on

July 21, 1978. The Certificate of Probable Cause was signed and

filed on July 25, 1978. The United States Circuit Court for the Ninth

Circuit affirmed the judgment of the District Court on November

21, 1979. A timely Petition for Rehearing was filed and denied on

January 21, 1980.

REASONS FOR GRANTING THE WRIT

1. The decision of the Ninth Circuit Court of Appeals, in regard

to the voluntariness of Petitioner’s guilty plea, directly

conflicts with the due process principles enunciated by this

Court in the case of .[c¢CARTHY V. UNITED STATES.

In McCarthy v. United States, 394, U.S. 459 (1969) this Court

held that because a plea of guilty is an admission of all the elements

of the charge it cannot be a voluntary plea if the defendant doesn’t

understand the law in relation to the facts. The opinion went on to

amplify the point that the judge must conduct an examination to

ensure that the acts the defendant admits to constitute the offense

charged in order to prevent the situation of a defendant understand-

ing the nature of the charge but not realizing that his conduct does

not actually fall within the charge.

At the change of plea hearing the trial court simply asked the

Petitioner if he intended to defraud Kathleen Folley pursuant to a

scheme or artifice. The Petitioner answered that he did. The Ninth

Circuit Court quoted this portion of the change of plea hearing in its

memorandum opinion at page 2. The opinion then went on to state

quite matter of factly, that:

“There was clearly a factual basis for the conclusion of the

district court upon which that court was entitled to rely with-

out the need for evidentiary hearing.”

It is submitted that this is not the case for nowhere in the colloquy

with the trial court was there ever any attempt to make sure that the

Petitioner’s conduct actually amounted to a “scheme or artifice to

defraud” and that he understood the legal meaning of the phrase

“scheme or artifice to defraud” and how, if at all, his conduct could

be fairly related to that phrase.

A scheme to defraud has been defined in reference to the Federal

Mail Fraud Statute, 18 U.S.C. §1341, from which Arizona Revised

Statutes §13-320.01 was adopted. (See the comments following the

Arizona Statute.) According to the cases of Silverman v. United

States, 213 F.2d 405 (Sth Cir. 1959) and United States v. Bruce, 488

F.2d 1224 (Sth Cir. 1973) interpreting 18 U.S.C. §1341, a scheme is

one to defraud only when it is reasonably calculated to deceive

persons of ordinary prudence and comprehension.

In the case at bar, Petitioner contends that there was no shceme.

However, even assuming that there was a scheme, the Petitioner

contends that it was not one that would deceive persons of ordinary

prudence and comprehension and therefore said scheme was not one

to defraud. In regard to the count Petitioner plead to involving

Katherine Folley, there was no scheme as the Petitioner merely

stated that painting the roof would make and keep the roof in better

condition, which a Detective, during preliminary hearing testimony,

agreed that it would. Thereafter the Petitioner did not inveigle Mrs.

Foley in any way into letting him do the work on the roof. It is true

that she did not ask him todo it; however, the Petitioner merely went

onto the roof and did the work unsolicited. Thereafter, Mrs. Foley

voluntarily paid him for his services even though she states she did

not ask him to do the work. She never declined to pay him, she

merely haggled over the price. Therefore, in this instance, there was

no scheme to defraud. A person of ordinary prudence and compre-

hension would understand that perhaps aluminum paint would at

least reflect the hot rays of the Arizona sun and protect the roof ina

certain manner, but in no way would a person of such prudence and

comprehension believe that a coat of aluminum paint would make a

bad roof good. In fact, Mrs. Foley told Mr. Stewart that hers was a

good roof in the first place.

The United States Court of Appeals for the Ninth Circuit, in the

Memorandum Opinion, at page 2, seemingly agrees with the Peti-

9

tioner’s argument that there was no scheme to deceive pursuant to

the Arizona Statute. Therein they state as follows:

“The evidence does not establish that there was a scheme to

deceive; it does disclose that there was over-persuasion result-

ing in a grossly inequitable charge without any real meeting of

the minds.” (Emphasis added)

However, immediately after asserting that the Petitioner’s acts did

not violate the statute which he was accused of violating they made a

bald assertion that there was a factual basis for the United States

District Court to rely on without the need for an evidentiary hearing.

These statements in the opinion are in direct conflict with each

other. If the evidence from the record does not establish a scheme to

deceive then there cannot be any factual basis on which the District

Court could have relied without an evidentiary hearing.

The Circuit Court uses the cases of Menna v. New York, 423 U.S.

61, 62 n.2 (1975) and Blackledge v. Perry, 417 U.S. 21, 30 (1974) to

bolster its reasoning with the proposition that if a counseléd plea of

guilty, being an admission of guilt, is voluntary and intelligent it

removes the issue of factual guilt from the case. This reasoning in

actuality, begs the question in that it completely overlooks the fact

that Petitioner has contended from the beginning that his plea was

involuntary in that it was entered, after a perfunctory dialogue with

the trial judge, without Petitioner’s understanding that his conduct

did not fall within the parameters of the statute under which he was

charged. Furthermore, the Menna and Blackledge cases, supra,

cited by the Court below have no bearing whatsoever on this case as

they narrowly apply to the waiver of a double jeopardy claim by

entering a guilty plea.

The Court below erred in not holding a hearing on the Petition for

Writ of Habeas Corpus. The Fourth Circuit in the cases of Edwards

v. Garrison, 529 F.2d 1374 (4th Cir. 1975); Crawford v. United

States, 519 F.2d 347 (4th Cir. 1975); and Walters v. Harris, 460 F.2d

988 (4th Cir. 1972) has dealt with the change of plea situation in a

realistic manner in that in certain circumstances they agree that

there are various subtleties under the facade of the guilty plea which

if brought to light would show an unconstitutional deprivation of a

persons rights. In Edwards v. Garrison, supra, the defendant alleged

in a sworn Habeas Corpus Petition that he was induced to plead

10

guilty by his counsel’s promise that his sentence would not exceed

twenty years. The Court in their decision stated that the defendant

was entitled to an opportunity to show the invoiuntariness of his

plea despite the fact that he was represented by counsel and despite

the fact that his answers during the change of plea proceeding

indicated that he understood that he could be imprisoned for as

much as life plus three years. Within its opinion, the Court discussed

the phenomenon of many defendants answering questions during

the change of plea proceeding in a manner in which they feel they are

supposed to answer them merely so that they can get the benefit of

the plea bargain. The Petitioner herein, John Jack Stewart, has also

made an allegation of involuntariness and lack of understanding

within a sworn Habeas Corpus petition. He also within the reason-

ing of Edwards v. Garrison, supra, is entitled to a hearing to show to

the court his misunderstanding and/or lack of understanding of the

charges against him and the reasons and conditions under which he

answered the questions asked by the sentencing judge. This case is

similar to the Garrison, supra, case and the failure of the United

States District Court and the United States Court of Appeals for the

Ninth Circuit to order a hearing on the Petitioner’s request for a

Writ of Habeas Corpus has deprived him of his due process rights

under the Fourteenth Amendment to the United States

Constitution.

This is true to a greater extent when one takes into consideration

the statements of the Ninth Circuit Court wherein they imply that

the Petitioner did not commit a scheme to defraud as was charged

under the Arizona indictment.

This Court should grant a Writ of Certiorari to prevent a miscar-

riage of justice where a Petitioner has plead guilty to a charge

involuntarily, without the full understanding of the charge and

where an Appellate Court admittedly states that the Petitioner’s

actions did not fall within the parameters of the statute under which

he was charged, all in abrogation of Petitioner’s due process rights

under the Fourteenth Amendment to the United States

Constitution.

2. The Court below has applied a test for the determination of

cruel and unusual punishment which conflicts with the princi-

ples enunciated by this Honorable Court.

This court should grant the Petition for Writ of Certiorari in that

the United States Court of Appeals for the Ninth Circuit in their

Memorandum Opinion in this matter has used the wrong test as

dictated by this Court’s opinions in order to determine whether or

not sentence imposed upon the Petitioner was cruel and unusual

punishment under the Eighth Amendment to the United States

Constitution.

In the Ninth Circuit Court’s Memorandum Opinion, it is stated

on page 3, that:

“Likewise we find only slight support for appellant’s claim of

cruel anu unusual punishment. The sentence of five to ten years

in prison is severe. But we cannot say that the sentence is so

shocking that it transgresses constitutional limitation.”

It appears that the Ninth Circuit Court in its determination of

appellant’s cruel and unusual punishment claim has determined that

the sentence imposed does not shock the conscious and is.therefore

constitutional. This test used by the Ninth Circuit Court is not in

keeping with the dictates of this Honorable Court in the cases of

Coker v. Georgia, 97 S.Ct. 2861 (1977), and Gregg v. Georgia, 428

U.S. 153, 96 S.Ct. 2909, 49 Law Ed. 2d 859 (1976).

This Court has held in those cases that the Eighth Amendment

bars those punishments that are “excessive” in relation to the crime

committed. The determination of whether the sentence is excessive

and thus unconstitutional must be made if either (1) it makes no

measurable contribution to the acceptable goals of punishment and

therefore is a purposeless and needless imposition of pain and

suffering; or (2) it is grossly out of proportion to the severity of the

crime.

The determination of whether the sentence falls within these

guidelines must be made on objective factors to the maximum

possible extent and not on the mere subjective thoughts of individ-

ual justices.

The following facts are those that the Appellate Court should

have looked to in applying the above test instead of merely looking

at the punishment and the crime in applying the shock of conscious

test: Petitioner is a twenty nine year old male who has been married

to the same woman for the last eight years and has fathered two

12

young children, ages six and one and one-half, respectively; Peti-

tioner had no prior felony convictions and in fact, before this

incident had never been arrested on a felony charge; the crime to

which the Petitioner entered a plea of guilty was a crime of a purely

non-violent nature; Petitioner was an out-of-state resident who

intended to move with his family back to Delaware, his Original

home state; Petitioner was not the typical criminal on the “make” for

additional victims, rather he was employable as a painter and had

been in the profession for a number of years; to the extent Petition-

er’s crime carried with it a “victim” he had made restitution to all of

such alleged victims in his case.

With these facts in mind, the objective finding must be that the

five to ten year sentence imposed upon Petitioner does not make any

measurable contribution to acceptable goals of punishment, and

furthermore, it is grossly out of proportion to the severity of the

crime. This coupled with the fact that the Ninth Circuit Court does

not believe the evidence shows a scheme or artifice to defraud most

certainly deprives the Petitioner of his freedom from cruel and

unusual punishment under the Eighth Amendment to the United

States Constitution.

3. The Ninth Circuit Court failed to decide the issue of whether

Arizona revised statutes §13-320.01 was applied to Petitioner

for a purpose not constant with the purpose of the legislation

itself in such a way as to be an arbitrary and discrimatory

application of said statute and in violation of his due process

rights under the Fourteenth Amendment to the United States

Constitution.

Nowhere in the Memorandum Opinion of the Ninth Circuit

Court has the court ruled on the above issue presented to it.

The Petitioner contends that Arizona Revised Statutes §13-

320.0! was not reasonably applied to him in this case and that it was

not applied for a purpose consonant with the purpose of the legisla-

tion itself. Therefore, the statute was applied to the Petitioner in an

arbitrary and discriminatory manner and thus in violation of the

Petitioner’s due process rights under the Fourteenth Amendment to

the United States Constitution.

The summary analysis of the Arizona House Bill 2124 (A.R.S.

13

§13-320.01) shows that the paramount intent of the legislature in

passing this law was to close the deficiencies in existing law at that

time, which “have become apparent in recent investigations of

alleged land fraud operations in this state.” (emphasis added.)

The summary analysis goes on to explain that at the time the Bill

was passed, the primary devise for the prosecution of fraudulent

offenses was Arizona Revised Statutes § 13-661a(3). This section has

to do with obtaining money or property by false pretenses. What the

legislators were concerned with at that time was that in order to

convict someone under Arizona Revised Statutes §13-661a(3), the

prosecution had to show the victim’s reliance upon false statements

made by the defendant, and furthermore that there was a taking

involved. This statute then did not apply to an attempt to perpetrate

a fraud on certain persons where the victims did not rely upon the

false representations and the fraud was not thus completed.

In the case of Fasulo v. United States, 47 S.Ct. 200, 201, 27 U.S.

620, 71 L.Ed. 443 (1926), this Court stated that before one can be

punished for the violation of a certain statute, it must be shown that

his offense is plainly within the statute. The Court also stated that in

trying to ascertain the true meaning and application of the statute,

one must look toward the evils which called forth its enactment in

the first place.

It should be noted that Petitioner could have just as easily been

charged under Arizona Revised Statutes § 13-661a(3) in that he was

accused of a completed act of fraud in taking money thereby from

another person. Furthermore, it should be noted that the punish-

ment for theft by false pretenses is set out in Arizona Revised

Statutes §13-671 for amounts over $100.00 and said punishment is

not less than one nor more than ten years in the state prison.

Petitioner could also have been charged under Arizona Revised

Statutes §13-312, which is entitled “Obtaining Money or Property

by Confidence Game.” The punishment for conviction under this

statute is not less than one or more than five years in the state prison.

However, Petitioner was charged under §13-320.01, which was

primarily intended for land fraud schemes and thus for fraud on a

grandiose scale, wherein the punishment is by imprisonment in the

state prison for not more than twenty (20) years and by a fine not to

exceed $20,000.00, or both.

14

The prosecutor in this case was placed in a position where he

could arbitrarily charge this particular Petitioner under the more

severe statute if he wished and that is what occurred. Because of this

arbitrariness and discrimination in the application of the statute

against the Petitioner and because the application of the statute in

this case was not commensurate with the intent of its application by

the Legislature in passing the legislation, and by virtue of the fact

that such arbitrariness and discrimination is possible because of the

wording of the statute, then Arizona Revised Statutes §13-320.01 is

unconstitutional and that it does not meet the requisites of due

process under the Fourteenth Amendment of the Constitution of the

United States.

Furthermore, it is the Petitioner’s contention that the reason the

prosecutor in the instant case charged the Petitioner under the most

severe statute possible was not merely the use of prosecutorial

discretion but was in actuality because of the vindictiveness of the

prosecutor towards this particular Petitioner.

Petitioner, however, was denied the opportunity and the forum in

the United States District Court upon his petition for a Writ of

Habeas Corpus to present evidence as to the prosecutor’s vindictive-

ness toward Petitioner. Petitioner has no other forum in which to

develop and bring forth this kind of evidence. By denying him a

hearing on the matter, the courts below could not fully discern the

issues involved and could not intelligently decide the legal issue

involved.

4. Arizona revised statutes §13-320.01 violates the due process

clause of the Fourteenth Amendment to the United States

Constitution because of vagueness.

Petitioner contends that the statute in question should be declared

unconstitutional because it fails to meet the “specificity” require-

ments of the due process clause of the Fourteenth Amendment to the

United States Constitution. Fundamental notions of due process of

law dictate that a criminal statute is void and unconstitutional for

vagueness when it “. . . fails to give a person of ordinary intelligence

fair notice that his contemplated conduct is forbidden.” Papachris-

tou v. City of Jacksonville, 405 U.S. 156, 162 (1972). Thus, for a

criminal statute to pass constitutional muster under the due process

clause, it must meet the foregoing tests adopted by this Court.

15

Close examination of Arizona Revised Statutes §13-320.01 dem-

onstrates that it clearly does not meet the previously mentioned

guidelines because it simply does not give adequate notice of the

behavior that is forbidden. As the Eighth Circuit Court of Appeals

in United States v. McNeive, 536 F.2d 1245 (8th Cir. 1976) recog-

nized, the statutory phrase “scheme or artifice” is ridden ke

relative lack of definite standards.” 536 F.2d at 1248 Similarly, the

Arizona statute is also vague in that it does not define to the slightest

degree exactly what is meant by the term “scheme or artifice.”

Petitioner contends that the vagueness and thus the unconstitu-

tionality of the statute in question is made even more apparent by

comparing it with the Federal Mail Fraud statute, 18 U.S.C.A.

§1341. While the language of the Federal Mail Fraud statute is

decidedly more specific than its Arizona counterpart, the federal

courts have, nevertheless, been cautious in interpreting and applying

its proscriptions. In United States v. Kelem, 416 F.2d 346, 347 (9th

Cir. 1969) cert. denied, 397 U.S. 952 (1970), the Court recognized

that “. . . §1341 should be carefully and strictly construed in order to

avoid extension beyond the limits intended by Congress.” Earlier, in

Fasulo v. United States, 272 U.S. 620, 629 (1926), this Court in

construing the predecessor to §1341 had emphasized“... before one

can be punished, it must be shown that his case is plainly within the

statute.” Clearly, the specificity which imbues the Federal Mail

Fraud statute with validity is lacking upon an examination of

A.R.S. §/3-320.01.

Moreover, A.R.S. §13-320.01 is unconstitutionally vague in that

it lacks exacting enforcement provisions. By not defining precisely

what is meant by a “scheme or artifice,” Petitioner faced the possibil-

ity that he would be forced to defend against a number of counts,

each carrying a potential of twenty (20) years imprisonment, and a

$20,000.00 fine for what could, arguably, amount to no more thana

single course of conduct. The statute carries an additional vagueness

taint in that it is unclear whether a “scheme or artifice” may be

compromised of one alleged incident or whether a number of inci-

dents are first required to compromise the proscribed “scheme or

artifice.” In sum then, under what circumstances said conduct can be

punished is not clear to a man of ordinary intelligence.

16

CONCLUSION

For these reasons, a Writ of Certiorari should issue to review the

judgment and opinion of the United States Court of Appeals for the

Ninth Circuit.

RESPECTFULLY SUBMITTED,

BENJAMIN LAZAROW

177 N. Church, Suite 613

Tucson, Arizona 85701

Counsel for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN JACK STEWART )

Petitioner-Appellant, )

VS. ) No. 78-2818

SUPERIOR COURT, Pima County J)MEMORANDUM

Arizona, and THE ATTORNEY GENERAL )

OF THE STATE OF ARIZONA, )

Respondents-Appellees. )

Appeal from the United States District Court

for the District of Arizona

Before: HUFSTEDLER, TRASK and SNEED, Circuit Judges

Appellant, John Jack Stewart, appeals from the denial and

dismissal of his habeas corpus petition. He is an Arizona state

17

prisoner having pleaded guilty to obtaining money by a scheme to

defraud. Ariz. Rev. Stat. §13-320.01.!

In this court he contends that the district court erred by failing to

hold an evidentiary hearing; that the state statute is void for

vagueness, that as applied to him it was applied in an arbitrary and

capricious manner; that his guilty plea was and is void because he

did not understand the nature of the charge; and that his sentence

constitutes cruel and unusual punishment. His state court

conviction was affirmed, State v. Stewart, 118 Ariz. 281, 576 P.2d

140 (1978) and the Supreme Court of Arizona denied appellant’s

petition for review. Because the state appellate courts have had an

opportunity to review the arguments made to the district court, that

court found that appellant had exhausted his state remedies within

the meaning of 28 U.S.C. §2254(b). Thompson v. Procunier, 539

F.2d 26 (9th Cir. 1976). We agree.

Briefly, it was shown that appellant had approached at least three

elderly women and had persuaded each of them to employ him to

work on the roofs of their several houses. He had then charged them

unconscionably excessive amounts for the work he had performed

and materials supplied. The evidence does not establish that there

was a scheme to deceive; it does disclose that there was

overpersuasion resulting in a grossly inequitable charge without any

real meeting of the minds.

At the plea hearing before the State Superior Court, the following

took place:

'Ariz. Rev. Stat. §13-320.01 reads as follows:

“Any person who, pursuant to a scheme or artifice to defraud.

knowingly and intentionally obtains or attempts to obtain

money, property or any other thing of value by means of false

or fraudulent pretenses, representations or promises is guilty of

felony punishable by imprisonment in the state prison for not

more than twenty years, by a fine not to exceed twenty

thousand dollars, or both.” Added laws 1976, Chapter 134, § 1,

effective June 27, 1976.

18

“THE COURT: If I accept your plea of guilty to count | you

would be telling me on or about November the 16th of last year

you, pursuant to a scheme or artiface (sic) intend to defraud or

to obtain from Kathleen H. Polley(?) (sic) money by means of

fraud, false, or fraudulent pretenses, or promises.

Did you on or about that date make certain representations

to a person by that name, and that you knew these

representation were false or misleading?

A. (MR. STEWART) Yes, your Honor.

Q. Did you intend to obtain money or property through the

representations made by you?

A. Yes, sir.

Q. You intended to use the proceeds for your own purposes,

eventually?

A. Yes, your Honor.”

576 P.2d 140, 142.

There was clearly a factual basis for the conclusions of the district

court upon which that court was entitled to rely without the need for

an evidentiary hearing. The appellant was represented by an

attorney of his choice. A counselled plea of guilty is an admission of

guilt and where the plea is voluntary and intelligent it removes the

issue of factual guilt from the case. Menna v. New York, 423 U.S. 61,

62, n.2 (1975). There was no claim of double jeopardy which would

operate to the contrary. See Blackledge v. Perry, 417 U.S. 21, 30

(1974).

Nor is the conviction here void because the statute is void for

vagueness. The Arizona statute is patterned after the federal mail

fraud statute, 18 U.S.C. §1341. It has withstood numerous

challenges based upon vagueness grounds. E.g., United States vy.

Louderman, 576 F.2d 1383, 1388 (9th Cir.), cert. denied, 439 U.S.

896 (1978): United States v. Feinberg, 535 F.2d 1004, 1010 (7th Cir.),

cert. denied, 429 U.S. 929 (1976).

The charge of “prosecutoria! vindictiveness” lacks support in the

record at any step in the litigation. Although appellant states the

claim he does not support it and we find no record of it. Likewise we

find only slight support for appellant’s claim of cruel and unusual

punishment. The sentence of five to ten yeas in prison is severe. But

19

we cannot say that the sentence is so shocking that it transgresses

constitutional limitation.

The judgment of the district court is AFFIRMED.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

JOHN JACK STEWART,

)

Petitioner, )

Vs. ) No. CIV 78-077-TUC-MAR

STATE OF ARIZONA, ) ORDER

Respondent. )

)

John Jack Stewart having petitioned for a writ of habeas corpus

pursuant to 28 U.S.C. §2254, and the State of Arizona on behalf of

respondents having opposed the petition and having submitted

transcripts of proceedings on petitioner's plea of guilty, May 24,

1977, and sentencing, June 13, 1977, the Court, on due

consideration of the record before it, concludes as follows:

1. Findings of Fact

A. On January 4, 1977, petitioner was charged by information in

Superior Court in and for the County of Pima with five counts of

obtaining money by a scheme or artifice to defraud, in violation of

A.R.S. §13-320.01. The facts underlying the charge were developed

at a preliminary hearing, December 30, 1976: In November of 1976.

petitioner went to the residence of Mrs. Katherine H. Foley, age 77,

and told her he knew the people who had previously worked on her

house. After examining the roof of the house, petitioner told Mrs.

Foley that he could improve the roof by spraying it with paint and

that he would charge $900 for the job. When Mrs. Foley objected,

petitioner agreed to a price of $600. According to Mrs. Foley,

petitioner worked on the roof for about half an hour, although Mrs.

20

Foley did not expressly tell petitioner to commence work. Petitioner

then drove Mrs. Foley to a credit union to obtain a check and toa

bank to cash it. Two other women, ages 80 and 76, testified at the

hearing that petitioner had approached them with similar offers.

One woman paid petitioner $210 for having painted her roof. and

the other paid petitioner $2875 for having worked on the roof and

foundations of her house. All three women felt that petitioner had

overcharged them.

B. After the filing of the information, petitioner moved for a

redetermination of probable cause on the ground that the State had

failed to present evidence of a “scheme or artifice to defraud,” within

the meaning of A.R.S. §13-320.01. The motion was denied on

March 2, 1977. On March 17, 1977, petitioner moved to dismiss the

information on the ground that §130320.01 was unconstitutional

due to vagueness. There is no record of a final ruling on that motion.

C. On May 24, 1977, petitioner entered a plea of guilty pursuant to

a plea agreement with the Pima County Attorney. Under the terms

of the agreement, the State dismissed all counts of the information

except Count One (that pertaining to petitioner’s transaction with

mrs. Foley). At the plea proceedings, the court explained the nature

of the charge in both statutory terminology and nontechnical

language, and petitioner stated that he had in fact committed the

described offense. R.T., 5/24/77, pp. 3-4. The court entered a

finding that there was a factual basis for accepting the plea of guilty

to Count One. R.T., 5/24/77, p. 4. The court advised petitioner of

the possible maximum sentence of one to twenty years

imprisonment, a fine of up to $20,000, or both, and asked petitioner

if any promises regarding sentencing had been made to him.

Petitioner indicated that he was aware of the possible punishment

and that no promises had been made. R.T., 5/24/77, pp. 4-5. The

court then advised petitioner of the rights he would waive by

entering a plea, and petitioner again indicated that he understood

those rights and that he desired to waive those rights and to enter a

plea of guilty. R.T., 5/24/77, pp. 5-6. Petitioner’s counsel stated that

he had fully discussed the plea with petitioner, and that he believed

petitioner’s decision to enter the plea was free and voluntary. R.T.,

5/24/77, p. 6.

21

E. On June 13, 1977, petitioner was sentenced to not less than five

nor more than ten years in Arizona State Prison, and was fined in

the sum of $500.

F. On direct appeal, petitioner challenged his conviction on the

grounds that the plea of guilty was not supported by a factual basis,

that §13-320.01 was unconstitutional because of vagueness, and that

his sentence constituted cruel and unusual punishment. Ona motion

for rehearing, petitioner alleged that his plea of guilty was entered

without an understanding of the charge, and that §13-320.01 had

been applied to him in an arbitrary and discriminatory fashion.

Petitioner’s conviction was affirmed by the Arizona Court of

Appeals, State v. Stewart, 2 CA-CR 1197 (Jan. 24, 1978), and a

petition for review was denied by the Arizona Supreme Court.

II. Conclusions of Law

A. The grounds for relief urged by petitioner have been presented

to the state courts, either through his brief on appeal or his motion

for rehearing. Because the state appellate courts have had an

opportunity to consider each of petitioner’s contentions, the Court

finds that petitioner has exhausted his state remedies within the

meaning of 28 U.S.C. §2254(b). Cf Thompson v. Procunier, 539

F.2d 26 (9th Cir. 1976).

B. Petitioner contends that “scheme or artifice to defraud,” as

used in A.R.S. §13-320.01, is so vague as to violate due process

standards. Under the Due Process Clause, a criminal statute must

give a person of ordinary intelligence, fair notice that his

contemplatec conduct is forbidden. United States v. Harris, 347

U.S. 612 (1954). A statute will not be struck down for vagueness,

even if it could have been drafted with greater precision, so longas it

gives sufficiently definite warning of the proscribed conduct. Rose v.

Locke, 423 U.S. 48 (1975). According to the ordinary meaning of the

terms, “scheme or artifice to defraud” denotes a plan, device, or

strategy calculated to defraud another. In construing the federal

mail fraud statute, 18 U.S.C. §1341, the courts have held that

“scheme or artifice to defraud” requires proof that the defendant

was involved in a scheme or plan reasonably calculated to deceive

persons of ordinary prudence and comprehension. United States v.

22

Netterville, 553 F.2d 903 (Sth Cir. 1977); United States v. Reitscher,

467 F.2d 269 (10th Cir. 1972). In United States v. Mc Neive, 536 F.2d

1245 (8th Cir. 1976), relied on by petitioner, the court did not

condemn the mail fraud statute for vagueness. Rather, the court

interpreted §1341 as requiring proof of intent to defraud, and held

that the defendant’s innocent acceptance of unsolicited gratuities

was not within the purview of the statute. Moreover, in United

States v. Feinberg, 535 F.2d 1004 (7th Cir. 1976), the court affirmed

a conviction under §1341, holding, in part, that the statute was not

unconstitutional for vagueness or otherwise. In light of the clear

judicial constructions of the mail fraud statute, after which §13-

320.01 was patterned, the Court finds that a person of ordinary

intelligence would understand “scheme or artifice to defraud,” as

used in §13-320.01, to mean a pian or strategy calculated to defraud

or deceive another. Because the statute gives fair notice of what

conduct is proscribed, the Court concludes that §13-320.01 is not

unconstitutionally vague. See also, United States v. Louderman,

Ft (9th Cir. June 16, 1978).

C. Petitioner contends that §13-320.01 is so vague as to render his

guilty plea involuntary and unknowing. However, assuming

petitioner is an individual of ordinary intelligence, the statutory

language itself gave petitioner fair notice of the nature of the offense

to which he pleaded guilty. Moreover, at the plea proceedings, the

court explained the elements of the offense in unambiguous

language. Absent a colorable allegation of involuntariness, such as a

claim of coercion or duress, a federal court need not go beyond the

transcripts of the state court proceedings if they show that the state

defendant expressly indicated that his plea was voluntary and

intelligent. Edwards v. Garrison, 529 F.2d 1374 (4th Cir. 1975). The

Court finds that the state court record conclusively establishes that

petitioner’s plea of guilty was freely, voluntarily, and intelligently

entered.

D. Petitioner contends that his plea of guilty was not supported by

a factual basis. A counseled plea of guilty is an admission of guilt,

and where the plea is voluntary and intelligent, it removes the issue

of factual guilt from the case. Menna v. New York, 423 U.S. 61, 62

n.2 (1975). Moreover, even if petitioner’s claim of a lack of factual

23

basis were cognizable in this proceeding, the Court would reject the

claim on the merits. Petitioner admitted at the plea proceedings that

he knowingly made false representations to Mrs. Foley for the

purpose of obtaining money or property and that he intended to use

tie proceeds for his own benefit. In addition, the state court had

available the testimony from the preliminary hearing. The state

court record reveals an adequate factual basis for petitioner’s plea of

guilty to Court One of the information.

E. Petitioner contends that application of § 13-320.01 to him was

arbitrary and discriminatory. However, petitioner’s conduct, as

charged in the information, fell within the general proscription of §

13-320.01. The choice of statute under which to proceed is a matter

of prosecutorial discretion, and, absent a showing of prosecutorial

vindictiveness or class-based discrimination, the availability of

other less severe criminal statutes does not invalidate petitioner's

prosecution under § 13-320.01. E.g., United States v Brewer, 528

F.2d 492 (4th Cir. 1975).

F. Petitioner contends that he is being subjected to cruel and

unusual punishment by virtue of the sentence imposed in state court.

Because the sentence imposed is well within the statutory maximum,

the only inquiry for this Court is whether the penalty is so out of

proportion to the crime committed that it shocks a balanced sense of

justice. United States v. Tolias, 548 F.2d 277 (9th Cir. 1977).

Applying that standard, the Court finds that petitioner’s sentence is

not so severe as to warrant habeas corpus relief.

IT IS ORDERED that the petition for writ of habeas corpus is

denied.

Dated: July 6, 1978

MARY ANNE RICHEY

UNITED STATES DISTRICT JUDGE

24

APPENDIX C

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA, )

)

Appellee, )

) 2 CA-CR 1197

v. )

) OPINION

JOHN JACK STEWART, )

)

Appellant. )

APPEAL FROM THE SUPERIOR COURT

OF PIMA COUNTY

Cause No. A-31702

Honorable Robert O. Roylston, Judge

JUDGEMENT OF CONVICTION AFFIRMED and

CAUSE REMANDED WITH DIRECTIONS

Bruce E. Babbitt, The Attorney General

by William J. Schafer III and Robert S. Golden,

Assistants Attorney General Phoenix

Attorneys for Appellee

Benjamin Lazarow, P.C.

by Benjamin Lazarow Tucson

Attorney for Appellant

25

HOW RD, Judge.

Appellant was charged in an information alleging five counts of

obtaining money pursuant to a fradulent scheme or artifice in

violation of A.R.S. §13-320.01.

Pursuant to a plea agreement, he pled guilty to one count and the

» remaining four counts were dismissed. Appellant was advised at that

time of the possible range of sentences. State V. Woods, 114 Ariz.

385, 561 P.2d 306 (1977). He was subsequently sentenced to a term

of five to ten years in the Arizona State Prison, and a fine was

imposed. The record demonstrates an inconsistency as to the

amount of the fine, the transcript showing $500 and the minute entry

$2,500.

Appellant challenges the factual basis for the guilty plea, the

constitutionality of A.R.S. §13-320.01, the sentence imposed, and

the inconsistency as to the fine. We affirm the conviction and

sentence imposed, and the inconsistency as to the fine. We affirm the

conviction and sentence, but remand to the trial court for

clarification of the amount of the fine.

The following facts were before the court as a result of the

presentence report, the two-volume preliminary hearing transcript,

and the record of the change of plea hearing. On the afternoon of

November 16, 1976, appellant approached the residence of Mrs. K.

Foley, age 77, at 2034 East 7th St. in Tucson, Arizona. With no prior

solicitation by Mrs. Foley, appellant told her that he knew the

people who had worked on the house before. He initiated a

conversation regarding roof repair, and asked to look at the roof. He

told Mrs. Foley that spraying the roof with paint would make and

keep the roof better. He said the job would cost $900 and when Mrs.

Foley objected, appellant settled for $600. Mrs. Foley stated:

“Six hundred for spraying the roof. So I didn’t say really to

do it or not. I just said that — and then he went out. They were

only there about a half hour, and he came [sic] back and said

the roof was fixed. It was done.”

*x** *

“I told him that it was a good roof, but when he said

something about spraying it, I said, ‘Well, I don’t know

anything about that’, but I never really told him to go ahead

and do it. I was just talking about it.”

26

Appellant drove Mrs. Foley to her credit union to get a check, and

then took her to the bank to cash it.

Two other women, ages 80 and 76 respectively, testified in

connection with similar encounters with appellant on November 17

and 19, but their testimony concerned counts which were

subsequently dismissed at the change of plea hearing.

We cannot agree with appellant that there was no factual basis for

his guilty plea since the court had before it the presentence report,

the preliminary hearing record, and the following testimony of

appellant at the plea hearing:

“THE COURT: If I accept your plea of guilty to count 1 you

would be telling me on or about November the 16th of last year

you, pursuant to a scheme or artiface [sic] intend to defraud or

to obtain from Kathleen H. Polley (?) [sic] money by means of

fraud, false, or fradulent pretenses, or promises.

Did you on or about that date make certain representations

to a person by that name, and that you knew these

representations were false or misleading?

A. [MR. STEWART] Yes, your Honor.

Q. Did you intend to obtain money or property through the

representations made by you?

A. Yes, sir.

Q. You intended to use the proceeds for your own purposes,

eventually?

A. Yes, your Honor.”

The extended record reveals an adequate factual basis for the plea.

State v. Davis, 112 Ariz. 140, 539 P.2d 897 ( 1975).

The court’s decision as to sentence was based on this same record.

From a statutory maximum of twenty years the court chose a five to

ten-year sentence. A sentence within the statutory limits will not be

disturbed on appeal absent a showing of a clear abuse of discretion.

State v. Waldrip, 111 Ariz. 516, 533 P.2d 115] (1975). A review of

the record does not reveal an abuse of discretion, even though this

was appellant’s first felony conviction. In State v. Villa, 111 Ariz.

371, 530 P.2d 363 (1975), the discretion of the trial court in

sentencing was not disturbed even though the defendant had no

previous criminal record.

a eo ree

27

A.R.S. §13-320.01 reads:

“Any person who, pursuant to a scheme or artifice to

defraud, knowingly and intentionally obtains or attempts to

obtain money, property or any other thing of value by means of

false or fraudulent pretenses, representations or promises is

guilty of a felony punishable by imprisonment in the state

prison for not more than twenty years, by a fine not to exceed

twenty thousand dollars, or both.” Added Laws 1976, Ch. 134,

§ 1, eff. June 27, 1976. (Emphasis added).

Appellant claims the statute is unconstitutionally void for

vagueness. In particular, he contends that the words “scheme or

artifice” are indefinite. We do not agree.

An offense must be defined in terms that men of average

intelligefice understand and the due process clause requires only that

the law give sufficient warning that men may conform their conduct

to its dictates. State v. Bateman, 113 Ariz. 107, 547 P.2d 6 (1976). We

believe that a man of average intelligence would understand that a

“scheme to defraud” is a plan or decision to defraud and that-an

“artifice to defraud” is an “evil or artful strategy to defraud”. Hence,

a “scheme” or “artifice” to defraud is to form some plan, device or

trick to perpetrate the fraud upon another. United States v. Dexter,

154 F. 890, 893, 896 (D.C.N.D. Iowa 1907).

Appellant mistakenly relies on United States v McNeive, 536 F.2d

1245 (8th Cir. 1976) for the proposition that the Arizona statute is

vague. McNeive involved a federal mail fraud statute which is

similar in some respects to our statute. Contrary to appellant’s

assertion, the “lack of definite standards” mentioned in McNeive

does not concern the meaning of the phrase, “scheme or artifice to

defraud”, but whether the word “property” as used in the federal

statute includes intangible rights or interests such as intangible

political and civil rights. We are not concerned with these intangible

rights here and the statute clearly, definitely and unambiguously

applies to appellant’s conduct.

We affirm the judgment of conviction and the portion of the

sentence as to imprisonment. The cause is remanded to clarify the

sentence as to the amount of the fine actually imposed.

28

LAWRENCE HOWARD, Judge.

CONCURRING:

JAMES D. HATHAWAY, Judge.

JAMES L. RICHMOND, Chief Judge.