# Opposition Brief — Arizona v. Bartlett > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0985%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 501 U.S. 1246 ## Text i i a en ee | {: Buprengs Coun. UX {* FriLe a or me aputee’ F SPADUOL Jie, tare a whe, — ae ino NO. 90-473 IN THE SUPREME COURT OF THE UNITED STATES October Tera, 1990 STATE OF ARIZONA Petitioner, vs. JOSEPH BARTLETT, JR. Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARIZONA BRIBE IN OPPOSITION TO THE PETITION FOR WRIT OF CERTIORARI DAVID P. FLANNIGAN Attorney at Law, P.C. 606 Highway 92 P.O. Box 4340 Bisbee, Arizona 85603 Tel: (602) 432-5791 Attorney for Respondent IN THE SUPREME COURT OF THE UNITED STATES October fera, 1990 STATE OF ARIZONA Petitioner, vs. JOSEPH BARTLETT, JR. Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARIZONA BRIEF IN OPPOSITION TO THE PETITION FOR WRIT OF CERTCLCORARI DAVID P. FLANNIGAN Attorney at Law, P.C. 606 Highway 92 P.O. Box 4340 Bisbee, Arizona 85603 Tel: (602) 432-5791 Attorney for Respondent QUESTIONS PRESENTED FOR REVIEW Should this Court on the basis of the doctrine of Stare decisis refuse to abandon its holding in Solem v. Helm, 463 U.S. 277 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), for the reason that there are no subsequent conflicting precedents, and there are no changes in conditions which justify overruling it and the case established a workable rule? Did the Arizona Supreme Court correctly apply the federal constitutional doctrine set forth in Solem v. Helm, by finding that Joseph Bartlett Jr.'s 40 year sentence, without the possibility of parole, pardon or other early release, for engaging in "nonviolent, nonincestuous, heterosexual and consensual sexual intercourse with two willing post-pubescent teenagers," constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution. ii TABLE OF CONTENTS QUESTIONS PRESENTED TABLE OF CASES AND AUTHORITIES STATEMENT OF THE CASE SUMMARY OF THE ARGUMENT REASONS FOR NOT GRANTING THE WRIT OF CERTIORARI FIRST ARGUMENT: ON THE BASIS OF THE DOCTRINE OF STARE DECISIS, THIS COURT SHOULD REFUSE TO ABANDON SOLEM v.HELM FOR THE REASONS THAT THERE ARE NO LATER CONFLICTING PRECEDENTS, THERE ARE NO CHANGES IN CIRCUMSTANCES WHICH JUSTIFY OVERRULING IT, AND IT IS A WORKABLE RULE. PART A. PART | Stare Decisis and Its Purpose The Doctrine of Stare Decisis Promotes Certainty In the Law The Doctrine of Stare Decisis I8 Founded On Equitable Principles. The Doctrine of Stare Decisis Promotes Judicial Efficiency. Judicial Restraint Is a Recognized Goal of The Doctrine of Stare Decisis. Abusing the Doctrine of Stare Decisis Endangers the Structure of Judicial Philosophy. Be Standards for Overruling Precedent The Subsequent Conflicting Precedent Standard. Change In Conditions As Justifying Overruling Precedent. iii 14 14 15 16 16 17 18 TABLE OF CONTENTS (Con’t) C. Unworkable Precedent. 1. Prong One: Looking At the Gravity of the Offense And the Harshness of the Penalty. i. The Harshness of the Penalty ii. Gravity of the Offense 2. Prong Two: Comparing The Sentences Imposed On Other Criminals in the Same Jurisdiction. 3. Prong Three: Comparing the Sentences Imposed For The Same Crime In Other Jurisdictions. 4. Workability Under Differing Interpretations D. Fundamental Precedents and Settled Expectations SECOND ARGUMENT THE ARIZONA SUPREME COURT CORRECTLY APPLIED THE DOCTRINE SET FORTH IN SOLEM v. HELM 1. Proportionality Analysis As Applied by the Arizona Supreme Court 2. PRONG ONE: Gravity Of The Offense And Harshness of the Penalty 3. PRONG TWO: Sentences For Other Crimes In Arizona. 4. PRONG THREE: Sentences For Similar Offenses In Other States CONCLUSION iv 57 Page ai 33 34 35 41 tot 48 49 51 54 55 61 TABLE OF AUTHORITIES CAS ES Atascadero State Hospital v. Scanlon, 473 U.S. 234, 304 (1985) Brown v. Board of Education, 347 U.S. 483 (1954) Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407-11 (1932) Florida Department of Health and Rehabilitative Service v. Florida Nursing Home Association, 450 U.S. 147, 153 (1981) Garcia v. San Antonio Metropolitan Transit Authority, 465 U.S. 528 (1976). Mapp v. Ohio, 367 U.S. 643, 651-55 (1961) National League of Cities v. Usery, 426 U.S. 833 (1976) Wolf v. Colorado, 338 U.S. 25 (1949) Harmelin v. Michigan, Supreme Court Case No. Hutto v. Davis, 454 U.S., at 374, and nan. 3 Monroe v. Pape, 365 U.S. 167, 202 (1961) O’Neil v. Vermont, 144 U.S. 323 (1894) Propeller Genesee v. Fitzhugh, 53 U.S. (12 How.) 443 (1851) Sheddon v. Goodrich, 8 Ves. 497, 32 Eng.Rpt. 441, 447 (1803) The Steamboat Thomas Jefferson, 23 U.3. (10 Wheat.) €28 (1825) 89-7272 19 rh Ww 50 30 16 30 TABLE OF AUTHORITIES (Con't) CAS ES Puerto Rico v. Brandstad, 483 U.S. 219 (1987) Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861) Rummel v. Estelle, 445 U.S. 263, 100 $.Ct. 63 L.Ed. 2d 382 Runyon v. McCrary, 95 §.Ct. 2586, 2604, 427 U.S. (1976) 190-191, 40 L.Ed.2d 415 Smith v. Allwright, 321 U.S. 649, 669 (1942) Solem v. Helm, 103 U.B. 2ite 77 L.Ed.2d 637, 103 S.Ct. 277 (1983) State v. Davis, 310 Md. 611, 530 A.2d 1233 State v. Davis, 108 Ariz. 335, 337 498 P.2d 202, 204 (1982) State v. Bartlett, 1133, 792 P.2d 693 (Ariz. 1990) State v. Jonas, 972 P.2d 705 (1990) State v. Mullally, 127 Ariz. 92, 618 P.2d 586 (i980) Weems v. United States, 217 U.S. 349 (1910)(1980) vi 18 23-55, 57, 60-62 48 42 52 26-28 = i oe 2 +; ee ee MoE a g* at NV an Sykes of — 4 » 6 GAN GULGISOMPEA Sy “hsgac hmrehimned-» on)g aspen tery fat 2@adee 7 : E _ = ' ad a . a _ ac - ' ' a = = » ', fi . : | | 7 | | 7 | | : 7 2 o o _ os) & > ‘ At some point during the questioning, Detective Pearce decided to tape record the interrogation. On tape, he led Joe through the fact that he had just stated he and Lisa had consensual sex and further led Joe into admitting that Pearce had told him he was not under arrest and could leave. Detective Pearce inquired of Joe as to Lisa’s reputation with other men. Joe advised that Lisa had openly discussed her sexual exploits with other men, and thereupon Pearce requested Joe’s help in locating Lisa’s other lovers, seeueine Jee that they would not “be in any trouble”. Pearce then asked Joe about Heather Tudor, whom Lisa had named as having had sexual intercourse with Joe. As indicated above, Heather had once been Joe’s girifriend. She also was once Lisa’s best friend. Joe readily admitted that Heather had been his girifriend, that they had dated several months, and had gone to movies, dinner and the like. Sometime during their courtship, Heather stated to Joe that her mother had given her advise to the effect that, if they were going to have sexual relations, she should use some form of birth control. Jce admitted that the two thereafter had consensual sexual intercourse. Toward the conclusion of the tape recorded interview, Detective Pearce showed Joe the statutory language classifying as a felony the engaging in sexual relations with minors as is set forth in A.R.S. $13-1405. Joe indicated that he had 4 learned that having sex with a minor was illegal while at security officer school in California (where having consensual sexual relations with a 14 year old is a misdemeanor). Detective Pearce managed to lose the tape recording of his interview with Joe, but only after he had prepared an “edited transcription” thereof, which he presented and was admitted at trial. Joe returned home, and, about a week later, on January 23, 1987, the State presented a three count indictment to the Cochise County Grand Jury alleging that Joe committed sexual conduct: In late November, 1986, with Rebecca Griffin, age 15 (a class six felony); in early December, 1986, with Lisa Drennon, age 14 (a class 2 felony); and two weeks before Christmas, 1986, with Heather Tudor, age 14 (a class 2 felony). The State alleged that the crimes were in violation of A.R.S. $13-1405, which is the substantive criminal law Statute, and of A.R.S §13-604.01, which provides for enhanced punishment for certain crimes against chiidren, including sexual conduct with minors under the age of i5 years. If the sexual conduct is with a 15 year old, or older, then the general punishment statute A.R.S. §13-701 applies. Copies of these statutes are annexed hereto as Appendices "A", "B" and "C", respectively. Under this combination, at the time of the indictment, in case of a conviction, Joe would be looking at probation or a minimum term of .75 years, a presumptive term of 1.5 years and a maximum term of 1.87 years for having had sexual relations with Rebecca Griffin. At the same time, he was looking at a minimum term of 15 years, a presumptive term of 20 years and a maximum term of 25 years, without the possibility of probation or parole until all of the sentence was served, if convicted of having had sexual conduct with either Heather Tudor or Lisa Drennon. It was established during the course of later police investigations that Lisa had outright lied about being forcibly raped by Joe, and Lisa herself subsequently admitted £&. The evidence ultimately adduced at trial showed that Joe’s version of the facts was truthful, and that the one act of intercourse enjoyed between them was fully consensual. During the pretrial proceedings, the State offered Joe a plea agreement covering all three alleged offenses and Stipulating that he serve five years with the Arizona Depart- ment of Corrections. Joe rejected the plea agreement on June 19, 1987. Joe’s court appointed attorney moved to withdraw, Stating as the basis therefor the rejection of the plea agreement. Substitute counsel was then appointed. The State, apparently in response to Joe’s rejection of the plea, moved on July 2, 1987 to invoke the enhanced sentencing provisions of A.R.S. $13-604(H), a copy ot which is annexed as Appendix "D”. Under this sentencing scheme, and its counterpart, A.R.S. $§13-604.01(H), included in Appendix 6 "B", the convictions and the associated sentences must be staked one on top of the other, to run consecutively, with the latter conviction being further enhanced. Thus, a conviction for sexual conduct with Lisa Drennon and Heather Tudor would carry a minimum term of 40 years, a presumptive term of 50 years, and a maximum term of 60 years, with no possibility of probation or parole, until all the sentence was served.’ Presented with these numbers, and the reality that consent was not a defense, Joe returned to California and was tried in absentia on August 11, 1987. Following the trial, Joe was convicted of having had sexual relations with Heather Tudor and Lisa Drennon, both of whom testified that their acts were completely consensual. He was acquitted of having engaged in sexual conduct with Rebecca Griffin. At sentencing, the trial court was required to sentence Joe to a minimum mandatory sentence of 4C years without the possibility of early release until every day of the 40 years was served. Nevertheless, the following stark facts loomed large in the mind of the sentencing judge: Ris Joe was born April 1, 1963; he was 23 years, 8 months old when the criminal acts occurred. Upon imposition of the minimum mandatory term, Joe, if ; At oral arguaenot before the Arizona Supreme Court, it was noted that the statutorily permissible stacking of felony counts within one indictment, so that one count serves as 4 pricr conviction to another count, for the purpose of sentence enhancement, 1s provided for ooly io the - States of Arizona and Florida. _— still alive, would be released on October 24, 2027, at the age of 64 i/2 years of age. Ze Lisa Drennon was born June 6, 1972; she was approx- imately 14 years, 6 months old at the time of the criminal act. Had she been six months older, Joe would have been sentenced under A.R.S. $13- 701(B)(5), $13-702, et seqg., to probation or im- prisonment for not less than nine months, nor more than 22 1/2 months. ae Heather Tudor was born February 22, 1972; she was approximately 14 years 10 months at the time of the criminal act. Had she been two months older, Joe would have been sentenced under A.R.S. §13- 701(B)(5), $13-702, et seqg., to probation or im- prisonment for not less than nine months, nor more than 22 1/12 months. At sentencing on January 4, i988, the Judge regretfully applied the minimum sentence of 40 years and made the follow- ing comments: "My function, as I view it, is not to second guess the legislature in regard to sentencing, but to follow the law. I took an oath to do that. The law is very severe. The law is more severe than -- or the punishment is very severe. The punishment is more severe than in many other types of cases that are very serious offenses. But it is not my function to second guess what the wisdom of the sentence is. "If in fact the sentence is too severe, I think that’s for the Appellate Court to review. So I really have nothing else to say in regard to the sentencing. I’m going to impose the mitigated term, because I think that it is plenty severe in this case.” On appeal to the Court of Appeals, Mr. Bartlett chal- lenged both the conviction, because of the failure of the trial court to suppress his allegedly involuntary statements to Detective Pearce, and the sentence, as being violative of the State and Federal constitutional proscriptions against cruel and unusual punishment. The Court of Appeals affirmed, and the Arizona Supreme Court granted a Petition for Review of the sentence only, requesting a Solem v. Helm proportionality analysis. The Arizona Supreme Court held that Joe Bartlett’s minimum mandatory sentence of every day of 40 years, under A.R.S. §13-604.01 was so disproportionately severe that it violated the federal constitutional proscription against cruel and unusual punishment as was expanded upon by this court in Solem v. Helm, supra. Accordingly, the Arizona Supreme Court reversed and remanded the matter to the trial court for resentencing. State v. Bartlett, 792 P.2d 693 (Ariz. 1990). The State Attorney General’s Office filed a Motion to Stay the issuance of the mandate, because it satended to file a Petition for Writ of Certiorari with this Court. Counsel for Mr. Bartlett Successfully opposed the motion, arguing that the United States Supreme Court perhaps would be interested in knowing what sentence was ultimately imposed by the trial court. At resentencing, Joe was facing a sentencing range of 7 to 35 years on two stacked class two felonies, pursuant to A.R.S. $$ 13-604, 13-701 and 13-702. Specifically, Joe was facing a minimum of 5.25 years on the first count and 7 years on the second count, to run concurrently, wherein he must serve 2/3 of the sentence before becoming parole eligible. He was facing a maximum of 35 years, if an aggravated term of 14 and 21 years for the first and second counts, respectively, were applied on each conviction, to be served consecutively. The presumptive terms for each count were 7 and 10.5 years, respectively. In this regard, Arizona law provides that if the facts alleged in the separate counts involve separate acts, the sentences should run consecutively unless the sentencing court expressly directs otherwise. Arizona Rules of Criminal Procedure, Rule 26.13. At resentencing, the Court was presented with certain facts that were unknown at the first sentencing. Specifi- cally, the State stipulated that certain documentation be admitted into evidence for the purpose of resentencing, showing that one month after Joe Bartlett was tried, two of the same "victims" mentioned in the Indictment, Heather Tudor and Rebecca Griffin, sought the conviction of another man, Rocco Griftin, for the same offense. Heather had happily 10 “a er fnevey aa 08) | inn a bragged that she was Mr. Griffin's girlfriend and that the two had enjoyed sexual intercourse together. Heather Tudor explained to her friends, in graphic detail, the couple’s lovemaking, initiated by her voluntary offer of oral sex and Mr. Griffin’s acceptance of the offer. This was just one month after she testified in court about her consensual sexual relations with Joe Bartlett when she was his girlfriend. Although a criminal complaint had been filed on these charges against Mr. Rocco Griffin, who was arrested and incarcerated, the Cochise County Attorney’s office elected not to take that matter to the Grand Jury. The reason that the State v. Griffin documentation was introduced into evidence upon resentencing was its relevance to the harm to or helplessness of the “victims” as bearing upon aggravation or mitigation of the presumptive terms. It was also relevant to show that the girls in this case were not inexperienced innocents who did not fully appreciate the meaning of sexual intercourse and were thus incapable of giving meaningful consent. At resentencing on August 27, 1990, Mr. Bartlett and counsel presented the Court with a brief synopsis of Jce’s life in prison since January 4, 1987 as follows: Mr. Flannigan: - « « “y. . | treated as a child molester. . . he’s on the absolutely lowest rung of the prison society. He has personally suf ered immensely. He’s been beaten, sexually raped, abused, victimized, threatened. Those are his day 11 to day experience[s]. He has suffered, in fact, a mental breakdown, has had to see a psychiatrist. Compromised himself in order to survive this kind of situation. It's an awful, awful world that he has been introduced into. “If it could be said according to the evidence that he at all sinned against these girls, he’s certainly been sinned against far more than that, and he has suffered immensely. If the purpose of punishment is to make him suffer, his suffering at this point far exceeds any harm to the victims. Me. BORELett: . . .« “Ss agree with what Mr. Flannigan says, because it has been hard in prison, really hard. I want this Court to know that I have no resentment towards anyone. I have found my peace with God and with myself. "My only wish is to finally go home, to be with my family, get a good, honest job and be a productive member of society and be the best father I can to my kids. I ask that this Court have mercy on me. Following those comments, and sans any argument by the State for the imposition of anything more than the mitigated term, the sentencing judge imposed the minimum term, of and seven years, to run concurrently, with credit for served and stated as follows: "The Court finds that the mitigating factor here that would require the mitigated term for sentenc- ing would be that the Defendant had no prior re- cord, and I just, quite frankly, feel that the mitigated term is sufficient punishment for the facts of this case. five time As indicated, Mr. Bartlett will now be required to serve at least 2/3 of the seven years imposed, which closely approaches the five years offered by the State’s plea agree- ment aS an appropriate sentence several years before. Having 12 served nearly three years of his sentence, Mr. Bartlett will become eligible for parole in about two years. SUMMARY OF THE ARGUMENT A consideration of the time honored principle of stare decisis compels the conclusion that Solem v. Helm should not be reversed. It has neither been rendered irrelevant by charged circumstances or subsequent authority, nor is it unworkable. To overrule precedent, one of these three special justifications need be present. In this case, because of the mandatory sentencing scheme of A.R.S. $613-604.01, 40 years or the rest of Joseph Bart- lett’s life was at stake and he did not have the possibility of a lesser sentence, pardon, parole or other early release for having had consensual sexual relations with two 14 year old sexually mature girls. Under the circumstances, the Arizona Supreme Court correctiy applied a Solem v. Helm analysis to the gravity of the offense vis-a-vis the harshness of the penalty, the sentences imposed on other more serious crimes in Arizona, and the sentences imposed for the same crime in other states as a predicate to holding that, in this limited case, the appli- cation of that mandatory sentencing statute to the facts constituted cruel and unusual punishment. Accordingly, the Arizona Supreme Court correctly reversed the sentence and remanded the case to the trial court for resentencing. 13 REASONS FOR NOT GRANTING THE WRIT OF CERTIORARI FIRST ARGUMENT: A. ON THE BASIS OF THE DOCTRINE OF STARE DECISIS, THIS COURT SHOULD REFUSE TO ABANDON SOLEM v.HELM FOR THE REASONS THAT THERE ARE NO LATER CONFLICTING PRECEDENTS, THERE ARE NO CHANGES IN CIRCUMSTANCES WHICH JUSTIFY OVERRULING IT, AND IT IS A WORKABLE RULE. The State of Arizona is asking that this Court overrule its precedent announced in Solem v. Helm, 103 U.S. 277, 77 L.Ed.2d 637, 103 S.Ct. 277 (1983), a decision the State says presents an “unworkable rule” and is in conflict with Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed. 2d 382 (1980). The State does not present a more workable alterna- tive, nor does it advocate a new path to follow. The Court, in this instance, is asked to construct a new path rather than tollow the lighted way of its recent precedent. Respondent maintains that, more important than “revisiting” the decision in Solem v. Helm, supra., is the need to accord to the doctrine of stare decisis the careful reflection and respect to which it is entitled. To this end, the Respondent questions the wisdom of quickly turning the Court’s back on recent precedent and ignoring the doctrine of stare decisis, as the State of Arizona has urged. Such would be the judicial equivalent of strip mining, a process that inherently erodes 14 the stature of this Court’s jurisprudence and thereby, the judiciary as a whole. Respondent’s argument herein proceeds in two parts: Part I discusses the doctrine of stare decisis and its functional purposes; and, Part II examines the standards that have been set by this Court for overruling precedent, and an argument for not overruling Solem v. Helm hecause it does not meet those standards tor abandoning the doctrine of stare decisis. PART I. STARE DECISIS AND ITS PURPOSE. The Latin term stare decisis et non quieta movere, meaning to stand by the decisions and not to disturb settled points, is the name given to the Anglo-American common-law doctrine which states that the holding of previously decided cases should be ftollowed. Black’s Law Dictionary, Fitth Edition, p. 1261. The importance of stare decisis in Anglo-American jurisprudence is undisputed. The doctrine ensures stability and maintains the rule of law, a rule that is premised on the beiief that we are a nation of laws and not men. As such it plays a critical role in the coherent development of the common law. A. The Doctrine of Stare Decisis Promotes Certainty In The Law. The doctrine of stare decisis is essential because of its many useful purposes. Among these purposes is that its consistent application assures the legal system a degree of certainty. Judicial awareness of the need for certainty accounts for the presence of the doctrine of precedent within a legal system, inasmuch as order, regularity, and stability are essential attributes of a legal system. As Lord Eldon, quoting from Lord Kenyon, said nearly two centuries ago: "It is better that the law should be certain than that every judge would speculate upon improvements in it.” Sheddon v. Good- rich, 8 Ves. 497, 32 Eng.Rpt. 441, 447 (1803). B. The Doctrine of Stare Decisis Is Founded On Equitable Principles. Another justification for the doctrine of stare decisis is that a universal sense of justice urges that all men be treated alike in like circumstances. Inequitable judicial treatment is a primary source of grievance against a judicial system. To consistently follow previous case precedent creates the uniformity and equality necessary to legal order, and avoids the public appearance of injustice. To leave that consistency, by disturbing precedent, is to disturb the equality, uniformity, regularity, similarity, and symmetry of the law. c. ‘The “ Doctrine of Stare Decisis Promotes Judicial #fficiency. ’ 16 Yet another purpose of the doctrine of stare decisis is that the reliance on precedent promotes the efficient admin- istration of justice. If precedent could not be relied upon as the rule of law, the administration of justice would become difficult, tedious, and near impossible. If a justice, or judge on any level, did not have the benefit of reliable precedent, then not only must he or she elucidate, ponder, and evaluate all possible rules of law which might be formulated for every case, but he or she must also examine all the reasons that might be advanced for instituting any one of these rules rather than any other. In short, the task of the judge would become interminable. The number of cases subject to proper litigation would be severely reduced. The function of the judiciary in society would be rendered infinitely less useful. On the basis of his own experience as Chief Justice of the New York Court of Appeals, Mr. Justice Cardozo observed that: "...the labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him. Perhaps the constitution of my own court has tended to accentuate this belief. We have had ten judges, of whom only seven sit at a time. It happens again and again, where the question is a close one, that a case which one week is decided one way might be decided another way the next if it were then heard for the first time. The situation would, however, be intolerable if the court were accompanied by changes in its rulings. In such circumstances there is nothing to do except to 17 stand by the errors of our brethren of the week before, whether we relish them or not.” B. Car- dozo, The Nature of the Judicial Process, pp. 149- 150., partially quoted in Mr. Justice Steven's concurring opinion in Runyon v. McCrary, 96 §.Ct. 2586, 2604, 427 U.S. 160, 190-191, 40 L.Ed.2d 415 (1976). D. Judicial Restraint Is a Recognized Goal of The Doctrine of Stare Decisis. Judicial restraint has also been recognized as a basis for the doctrine of stare decisis. Judicial restraint establishes affirmative norms of judicial behavior, and one is reminded of Lord Coke’s statement that “ho wan out of his own private reason ought to be wiser than the law, which is the perfection of reason.” The doctrine furnishes a desirable restriction upon the way in which an individual judge, or coalition of judges decides a particular case. If one particular justice had strong feeling regarding the inter- pretation of the Constitution, his individual conceptions would not serve to alter the body of constitutional law if he were bound by the doctrine of stare decisis to respect past precedent. E. Abusing the Doctrine of Stare Decisis Endangers the Structure of Judicial Philosophy. If restraint in this manner were not given a meaningful Significance in deciding cases, the appointment of justices would become little mcre than political appointments secured by their implied promise of obedience to executive order. -_ 18 An example of the danger present can be demonstrated by examining the Court’s past. In the case of Burnet v. Coronado O1l & Gas Co., 285 U.S. 393, 407-11 (1932), Mr. Justice Brandeis, in his dissent, provided a comprehensive list of prior decisions that overruled or qualified earlier constitu- tional precedent. These twenty-eight cases spanned a period of roughly 140 years of the Court’s history, taking an average of five years to overrule or substantiaily qualify a single case. After Burnet, the Court took only twelve additional years to outright overrule twenty-one constitutional decisions, an average rate of 1.75 cases per year. Between the years 1944- 1979, the Court reversed 107 constitutional decisions, the rate of reversals having grown to more than three a year. The rate and kind of reversals, obviously, were generated by the political currents of the day. For instance, during the last ten years of the Warren Court, 23 constitutional cases were overruled. During the first ten years of the Burger Court, the Court overruled 21 constitutional decisions. The fabric of the law was unwoven by one Court and fashioned to its liking, only, in turn to have the politically expedient process repeated -- a process unlikely to instill stability and public confidence in the law. It must be believed, therefore, that political convic- tions and party beliefs cannot fashion legal reasoning. 19 Neither can the considered decisions of this Court, which con- tribute to the wealth of common law, be a proper subject of Senate inquisition, via the confirmation process of a Supreme Court appointee. Only by closely following the doctrine of Stare decisis, via judicial restraint, can the judiciary exist separate and apart from the fashionable political philosophies of any particular day. The Weimar Constitution is an example of this point. As a threshold matter, it is first acknowledged that the example is extreme, and has no real comparative value with this Court’s ability to function independently. However, the historical lesson of exercising judicial restraint regardless of popular political conviction should not be lost through discarding the example as unlikely to recur. History is said to repeat itself, and often does so when the lessons of the past are ignored. Viewed as a legal document, the Weimar Constitution was an extraordinary piece of legal scholarship that demanded the respect of the greatest legal minds of the day. However, it quickly lost its meaning, and thereafter its force, when the judiciary relinquished its ability to fashion legal reasoning upon judicial review of accepted legal theories and precedents of the past, instead substituting the popular changing political convictions of pre-World War II Germany. The humane intention of the Weimar Constitution had no voice of its own; that voice had been severed, and the 20 voice of the popular opinion had been substituted. The sad consequences are known. H. W. Koch, A Constitutional History of Germany In the Nineteenth and Twentieth Centuries, Longman Publishing, London 1987. The doctrine of stare decisis is the only method by which we can firmly believe that the carefully considered opinions of this Court have a past, and, consequently a future. The warning of Mr. Justice Roberts that overruling decisions will diminish the authority of the Supreme Court should be heeded: "|The frequent overruling of decisions would] tend to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only.” Smith v. Allwright, 321 U.S. 649, 669 (1942). When the interwoven chain of obligation to the past is breached in this fashion, law ceases to exist as we know it, for law was intended to revolve around the concept of respect- ing the precedent set forth by common law. In expressing his belief that adherence to precedent should predominate over the merics of a particular case, Mr. Justice Brandeis wrote: "Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Burnet v. Coronado Oil & Gas Co., Supra., at 406. PART II. STANDARDS FOR OVERRULING PRECEDENT. 21 There is no federal statutory requirement of stare decisis. Sections 1254, i257, and Title 28 of the United States Code, which concern review by the Supreme Court on appeal or writ of certiorari, imply only that the Supreme Court may reverse the lower court’s decisions or remand with instructions. 28 U.S.C. at 12854, 28 U.S.C. at 1257, as amended. Moreover, it is noteworthy that Rule 10, Rule of Practice of the United States Supreme Court (1990), does not list the request to overrule its own precedent as one of the considerations for granting a writ of certiorari. In overruling precedent, Mr. Justice Stevens has pointed out that the question whether to overrule is not simply answered by demonstrating that the case was erroneously decided and that the Court has the power to correct its past mistakes. The doctrine of stare decisis requires a separate examination. Among the questions to be considered are: the possible significance of intervening events; the possible impact on settled expectations; and the risk of undermining public confidence in the stability of our basic rules of law. Stevens, The Life-Span of a Judge-Made Rule, 58 N.Y.U. L.R. 1 (1983). In reviewing the constitutional decisions in which this Court has reversed itself, it is apparent that all but a handful have been based upon one of three justifications. 22 First, the Court will overruie when a precedent has been so eroded by changes in the law that it no longer has an acceptable legal basis. It may be that there exists a group of subsequent opinions issued that, taken together, operate to hollow out or directly conflict with the premise of the underlying challenged case. See, ¢.g., Puerto Rico v. Brandstad, $83 U.S. 219 (1987) (overruling Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861)). Second, the Court will overrule when the conditions upon the which the first decision was premised have changed. See, e.g., The Propeller Genesee v. Fitzhugh, 53 U.S. (12 How.) 443 (1851) (overruling The Steamboat Thomas Jefferson, 23 U.S. (10 Wheat.) 428 (1825)). Finally, certain constitutional cases have been overruled when the majority views the rules set forth in the underlying precedent as being “unworkable”. See, @.g., Garcia v. San Antonio Metropolitan Transit Authority, 465 U.S. 528 (1985) (overruling National League of Cities v. Usery, 426 U.S. 833 (1976)). See also Mapp v. Ohio, 367 U.S. 643, 651-55 (1961) (overruling Wolf v. Colorado, 338 U.S. 25 (1949)). The overruling of Solem v. Helm, supra., would involve a breach of the doctrine of stare decisis. To do so necessitates that a new majority can justify an overruling on one of three aforementioned commonly accepted grounds. A 23 discussion of the relationship of each of these independent grounds as it relates to Solem v. Helm follows. A. The Subsequent Conflicting Precedent Standard. Since the time that Solem v. Helm was announced, no decision or series of decisions by this Court has challenged the underlying premise of Mr. Justice Powell’s reasoning. There is no subsequent conflicting precedent which justifies the abandonment of Solem v. Helm. The decision of Solem v. Helm remains controlling in cases presenting narrow factual circumstances. The State of Arizona argues, as did the dissent in Solem v. Helm, that Solem v. Helm conflicts with this Court’s previous precedent in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Since the case precedent conflict is said to have occurred before Solem v. Helm and not Since, members of this Court are essentially being asked to substitute their opinions for the considered opinions of recently retired Mr. Justice Brennen and Mr. Justice Stevens. Whether Rummel was in conflict with the majority’s decision in Solem v. Helm is an issue that has been decided. It is simply the law-of-the-case. It was decided that Rummel was good law, and was to be distinguished from Solem v. Helm. The distinguishing factors are rather easy to follow. In Rummel the defendant had the possibility of being released on parole by earning “good time credit", to be applied to the 24 reduction of time that he would be obligated to serve. The defendant in Solem v. Helm did not have that possibility, and could not obtain “good time credit". He would be eligible for parole only if he obtained a rarely extended grant of execu- tive clemency. He applied for clemency and the governor of South Dakota denied same. It was noted by the Solem v. Helm majority, at 301, that Texas had "a relatively liberal policy of granting ‘good time’ credits to its prisoners, a policy that historically has allowed a prisoner serving a life sentence to become eligible for parole in as little as 12 years." (Rummel, supra at 279.) The majority thus concluded that the South Dakota commutation system was fundamentally different from the parole system in Texas. The distinction is clear. It lies within the definition of what constitutes a "mandatory sentence”. If the sentence is subject to meaningful early release provisions, it is not, in reality, a mandatory sentence inasmuch as there is not an immutable term of years that the defendant must serve. Solem v. Helm is applicable only if the sentence is unquestionably a mandatory sentence in the strictest sense. In the case before the bar, the defendant was not eligible for parole or any other type of early release, as in Estelle. The defendant was not even eligible for the remote possibility of executive clemency as in Solem v. Helm. Solem 25 v. Helm is unmistakably the controlling authority in this case. The minority in Solem v. Helm maintained, as presently does in the State of Arizona, that the decision reached in Solem v. Helm was in direct conflict with the holding of Rummel v. Estelle. The majority, however, decided that the holdings were actually consistent one with the other. In Rummel the Court stated that: ~ one could argue without fear of contradic- tion by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of sentence actually imposed is purely a matter of legislative prerogative.” S45 8.9., 60 274, i909 S.Ct., at 1139 (emphasis added). As noted by the majority in solem v. Helm, supra, 463 U.S. at 290, the Supreme Court had not adopted that argument as a legal standard, based on past precedent, but merely recognized that the argument was possible. Moreover, the Court held that the constitutional principle of proportion- ality had been a matter of stare decisis for almost a century preceding their ruling. Cf. O’Ne1l v. Vermont, 144 U.S. 323 (1894). It was explicitly held in a landmark non-capital punishment case, Weems v. United States, 217 U.S. 349 (1910), that the sentence of 15-years imprisonment at hard labor, for falsifying a public document, was cruel and unusual 26 punishment. Mr. Justice McKenna delivered the opinion of the Court and noted: ",..it 18 a precept of justice that punishment for crime should be graduated and proportioned to offense.” Id. at 367. Further, Rummel v. Estelle was consistent with the proportionality theory adopted by the majority in Solem Vv. Helm and Weems v. United States, supra. The Rummel Court recognized tliat some sentences of imprisonment are so dispro- portionate tnat they violate the Eighth Amendment. Rummel v. Estelle, supra, 445 U.S., at 274, n. 11. This view was consolidated when the Court explained in Hutto v. Davis, supra, 454 U.S., at 374, and n. 3, that Rummel should not be read to foreclose proportionality review of sentences of imprisonment. The theory of judicial proportionality review of imprisonment was not vacated in Rummel, a conclusion that was expressly held in Hutto v. Davis. Solem v. Helm simply held that in Rummel because the defendant was eligible for a reasonably early parole, his uncertain length of sentence was not one that was appropriate for a proportionality review. It is submitted that had the Respondent herein been eligible for early parole he would have, in this regard, shared a narrow yet similar factual basis with the defendant in Rummel. This case would then have been controlled by Rummel, and, like Rummel, Respondent’s sentence would not be an appropriate sentence for proportionality review. 27 However, like Solem v. Helm, the present case is express- ly distinguishable from Rummel, and both sentences were proper for proportionality review. Arguendo, provided that the Court were persuaded that Solem v. Helm and Rummel v. Estelle were conflicting opinions and irreconcilable, the standard for overruling Solem v. Helm, on the basis of conflicting precedents is not whether the majority was mistaken, but whether it was "egregiously incorrect.” Atascadero State Hospital v. Scanlon, 473 U.S. 234, 304 (1985); Florida Department of Health and Rehabilita- tive Service v. Florida Nursing Home Association, 450 U.S. 147, 153 (1981); accord. Monroe v. Pape, 365 U.S. 167, 202 (1961). Respondent maintains that it is improper to do so because Estelle was previous rather than subsequent to Solem v. Helm, and therefore can not be considered a conflicting case precedent. To hold otherwise would he to overrule the express holdings in Hutto rs Supra., Weems v. United States, supra., and O’Neil v. Vermont, supra. that it is possible, in rare situations, for certain sentences of imprisonment to be imposed which are so disproportionate to the crime committed that they are unconstitutional under the Eighth Amendment, and require remand by the judiciary. In conclusion, Solem v. Helm cannot be overruled on the theory of conflicting precedent. 28 B. Change in Conditions As Justifying Overruling Precedent. The Court will overrule when the conditions upon which the first decision was premised have changed. For example, in The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851), the Court overruled 26 year old precedent, The Steamboat Thomas Jefferson, 23 U.S. (10 Wheat.) 428 (1825). In the Steamboat case, the Court had held that the admiralty Jurisdiction of the United States was limited to the tradi- tional English bounds of the “ebb and flow of the tide.” See id. at 428. By 1850, however, the United States had spread from the Atlantic Coast well into the interior of the conti- nent, and a vast trade had emerged on the Mississippi, the Great Lakes, and other inland bodies of water. The Genesee Chief, 53 U.S. (12 How.) at 456, recognized that the opening of the West, only dimly foreseen by the Steamboat Court, changed the issue presented, and that new conditions demanded uniform national regulation. in the present instance, the conditions upon which Solem v. Helm were premised have not changed. We are not yet in such enlightened times that our legislatures can be given a free and unchecked hand in decreeing punishment for crimes. The possibility exists that the popular demand may prevail in mandating unconstitutional punishment for crimes. However, in just such a case the judiciary must preserve its ability to provide a checks and 29 balances function on the legislature. It would be a rare circumstance that the judiciary would find that a sentence is constitutionally infirm. However, to the extent that the judiciary denies Eighth Amendment’ review of a constitu- tionally infirm sentence and thus resigns its responsibility to provide this protection to the public, it abdicates its position in the checks and balances scheme. The development of our system of criminal law has demonstrated that justice’s ultimate goal is (1) to acquit the innocent, (2) to convict and to punish the guilty, and (3) to demand that the punishment fit the crime. To the extent that our system of justice does so, it is successful and right. To the extent it does not do so, it fails. This Court is charged with the vital role of guarding our system of justice from failing, by giving expression to the conscience of the law, through the Constitution. The decision in Solem v. Helm continues to provide the Court the ability to serve the aforesaid third goal of justice via the review of sentences, in properly narrowed circumstances. Its need has not been diminished by time, as in the case of The Thomas Jefferson Steamship, supra. C. Unworkable Precedent. Certain constitutional cases have been overruled when the Majority views the rules set forth in the underlying prece- dent as being “unworkable”. See e.g., Garcia v. San Antonio 30 Metropolitan Transit Authority, supra, (overruling National League of Cities v. Usery, 426 U.S. 833 (1976)). See also Mapp v. Ohio, supra, (overruling Wolf v. Colorado, supra.) The Petitioner argues that the rule in Solem v. Helm is unworkable because of the number of appellate cases (772) across the country litigated since it was decided. It is the Respondent's position that the figures presented by Peti- tioner are misleading. Even assuming that Solem v. Helm has been utilized to the extent stated by Petitioner, this does not necessarily lead to the conclusion that the decision is unworkable. The utility of the decision is self-evident. Courts in all jurisdictions have cited Solem v. Helm as a legal standard to be included in their constitutional common law. The judiciary across the land has given serious weight to this landmark decision. As stated above, the figure of 772 cuses is misleading. At first glance it appears that this represents the propor- tionality review of 772 challenged sentences” which were claimed to be excessive. Actually, this is not so, as this number only represents citations to published and unpublished doctetons. A Proportionaliy analysis was not done in each case. Also the figure assumes that the appellate issue of challenging sentences, as being cruel and unusual, is a novel concept in the practice of criminal law, and has been brieted and addressed only by our ccurts since the announcement of the 31 holding in Solem v. Helm. This, of course, is not th2 case. Solem v. Helm was cited in those cases because it is recent controlling authority on constitutional challenges to imposed sentences, and previous cases cited previous authority. Further, there are 370 published and 102 unpublished appellate decisions among our 50 states that cite Solem v. Helm as controling authority. Because Solem v. Helm was announced 7 years, 4 months ago, the annual average number of published State opinions is 1.02 cases per state, per year. Even considering the addition of unpublished decisions, the annual average only rises to 1.3 cases annually per state. Even considering the greatest annual number, it does not _tollow that the case load since Solem v. Helm has been oppressive to the appellate courts. As demonstrated, the claim that Solem v. Heim is unworkable, because it has fulfilled the prophecy of Mr. Chief Justice Burger that the majority’s decision would cause a flood of new appeals to the appellate courts which would administer the coup de grace to the courts of appeals as we know them,” is an exaggerated claim. The Petitioner’s position that this claim as being present-day reality is not valid. The Petitioner also argues that Solem v. Heim should be overruled because the three-prong test utilized therein, in determining whether an imposed sentence 1s constitutional, is itself unworkable. The three prongs involve: 32 | 4% on ‘ I Fire) . & : ial Ps B it oy ei . ¥ ’ , Gilt 4 ' ‘ treats { f we ay il id i van | “yy ‘-. 1 ‘ erie ee aed: 21 i i 2% Fi f ! « yt i “tes ha ao i m4 i f \ isu ™“ L) i? 4007 : i) F gar oy af “fc t ~ be Ja ’ y Uiny f a) is ‘ ‘ is ‘ i’ } =) ons [ ' ‘ ' } hi ' tT 4 ? re “4 ligt ’ : ‘ pesy —s 4 i i140 f es ’ : 1 i] H a 4 a | } aio n . @ a ; ® bd ‘ oe Uy 19g i . ui at : é 7 : ! « é 1s yet. a3 ree toe 1 ed aa | a = a ye : Sig 4 . * tf at - 7) «ft ‘cis a | j 1st . 1 ' ’ i . i : i pai pe _ = i i vijris : hed 7 (mh efi i j 7 = ' iwi) 14 94-9! ae : jt 41 ! tila rie ee) : Thy Daily wt yviizaee@eails bet) ia «a4 Ow pi 4 ISPs Wh ers @ = ~ Die TI seer Be Od yay, ti : = eye water on tripe sab ; a et =laeavewup “5 ) ears (1) Looking at the gravity of the offense and the harshness of the penalty; (2) Comparing the sentences imposed on other criminals in the same jurisdiction; and {3) Comparing the sentences imposed for the same crimes in other jurisdictions. In argument, the following examination of each prong is given to demonstrate that they individually, and as a whole, cannot be defined as “unworkable”. i Prong One: Looking At The Gravity Or The Offense And The Harshness Of The Penalty. This prong calls for a two-part examination beginning with the harshness of the penalty and in the end reconciling it with the gravity of the offense. It is Respondent’s position that, if questioning the harshness of a given punishment and comparing it to the gravity of the offense is itself an unworkable proposition, then the conception of what is just and fair is equally unworkable. i The Harshness of the Penalty. No reasonable person could argue that a 40 year sentence is not harsh, especially when it is clear this sentence cannot be reduced by the possibility of “good time credit", parole, Or executive clemency. Judicial review under the Eighth Amendment, pursuant to Solem v. Helm, is the only method for obtaining relief from the serving of every day of the imposed sentence. 33 Given that, one may suppose that the final disposition of this case will be effected upon this Court’s consideration and order. This is not true, if the order of this Court is to reinstate the initial sentence. There is a subsequent disposition after this Court puts this matter aside and again turns to address the pressing onslaught of new cases. That disposition is the life and death of the Respondent. Given the hard and violent environment endured by those sent to our penitentiaries, one cannot readily assume that JOSEPH BARTLETT, JR. will emerge from confinement at the age of 64 years. Arriving as a slightly built and gentle young man, he was welcomed with open arms by the hardened criminal popula- tion behind our state’s prison gates. It is known that one convicted of the crime of child molestation or its senawekent is on the lowest rung of prison society and is generally considered "free game" by both prisoners and guards. The Respondent’s mode of life in prison has been one of daily survival. He has been raped and beaten, and his state of deprivation has compelled him to compromise himself in order to live another day. The boy’s spirit and body have been crushed. ii. Gravity of the Offense. Certainly, no one can doubt the sound justification for Statutes defining sexual exploitation of the immature as a criminal act. The rationale is that it is in the public 34 interest to protect the sexually naive child from phvsical trauma, as well as emotional and psychological exploitation. No reasonable person would hesitate to condemn abnormal sexual exploitation of an infant child. Societal interests require the protection of children from physical harm. The very thought of an adult male pedophile forcing his penis inside an infant female orifice is revolting, and raises feelings of outrage and anger in the breast of any responsible adult. The legislative intent behind Arizona’s enactment of A.R.S. §13-604.01 is consistent with both popular as well as universal belief in outlawing such taboo conduct. But, in our well-founded enthusiasm to promote this protective goal, sight should not be lost of the crucial object requiring protec- tion -- the pre-pubescent child -- from the most grotesque, perverted, and lurking monster -- the child molester. That criminal commits offenses that every state in the Union condemns as being the gravest of all offenses, when the victim is a pre-pubescent child. There is, however, an obvious distinction between grown girls who are under the statutory age and a molested child. Intercourse with a girl in her mid to late teens lacks the qualities of abnormality and physical danger that were present when she was a child. Here, the young woman does not experi- ence the extreme duress and domination seen in child-adult relationships. By her mid-teens, she may be eager, willing, 35 and consensual to a young man’s natural desires, and such desires are not beyond her understanding. It is clear that the element of victimization gradually decreases and finally dies away altogether as the young woman, no longer a mere child, grows older and more sophisticated, sexually mature and biologically ready for coitus. The metamorphosis of a child blossoming into a young woman, now capable of giving and receiving amorous love, was not lost on the greatest poet ever to write, William Shakespeare. In his perhaps most powerful and best known work, Romeo and Juliet, the young women was two-weeks shy of her fourteenth birthday at the beginning of the play, while the young man was identi- fied simply as being a young man. William Shakespeare, The Tragedy of Romeo and Juliet, Washington Square Press, (Ed. Wright 1959), Act i. 8é@. ifk, GR. LS-2i. If Juilet can be said to have been too young and incapable of understanding the nature of her consent to amorous love, it is submitted that no women since her time has truly reached that understanding. While the love shared between the fictional characters Romeo and Juliet differed in tragic tenderness from the relationship that the Respondent had with his “victims”, an accurate description of that relationship may have been lost in opposing counsel’s translation of the actual event as related in her brief. The actors here are of a more common cut, Bartlett is no Romeo, neither young woman is a Juliet, 36 and neither counsel as articulate as Shakespeare. Regardless, the instructive distinction is that an infant child is not a young woman or grown girl. A post-pubescent teen has tne ability, often well rehearsed, to recognize sexual advances and to reject them if she wishes. Thus, she has reached a point of maturity at which, realistically, she may give meaningful consent. The ability to give operative consent distinguishes the mature teen from the pre-pubescent child, who has neither the ability nor the natural desire to participate in sexual encounters. As such, the infant/child does not have what is termed to be operative consent. Without such operative and meaningful consent, the infant/child is in effect raped, just asS a grown girl would be if force or threats are used to negate her non- consent. These two offenses justify the extremely harsh penalties imposed on their perpetrators, as intended by the legislature. It is absurd, however, in our culture to talk of teenage girls of middle and late adolescence as not having knowledge and appreciation of the sexual act. This knowledge is commonly acquired by puberty, and certainly is reinforced if the mature teen gains sexual experience from previous encoun- ters. She well uncerstands the nature of the sexual act. The question is no longer one of rape, but of morality. With respect to this moral and social context, modern marriage laws sanction mid-teen marriages. Most states allow girls sixteen or over to marry with their parents’ consent, and girls under sixteen to marry upon obtaining judicial consent through a court order. Cf. Arizona, A.R.S. $25-102. We thus know by statute that in any given year, some percent- age of marriages will involve girls sixteen or younger. Query, how many of them involve pregnant girls under the age of fifteen years? In such cases the class 2 felony of sexual conduct with a minor, and the companion mandatory sentence, is and has been magically wiped out by the marriage ceremony, and one likes to think that the couple will live happily ever after. But what about those cases where the ceremony does not occur? Is it not cruel and unusual to caqe tne offending young man for life? It is an inescapable fact that many young people engage in sexual intercourse. In 1976, 6.4% of all sixteen year old girls in the United States had borne at least one child. U.S. National Center of Health Statistics of the United States, Table 1-17 (1978). These numbers tell us that a significant portion of unmarried fourteen to sixteen year old girls have engaged in sexual intercourse resulting in pregnancy. This Strongly suggests that a greater number may well have done so, without pregnancy resulting. 38 While not approving of the sexual permissiveness of our unmarried youth, one can only conclude that this type oft “offense” is committed many times between young people without resulting in criminal prosecution. Counsel would venture to state that this type of offense has historically and prehistorically occurred, universally, since exactly as long a time as there have been eager consenting grown girls just below fifteen years of age and boys in their late teens and early twenties. Regardless of stated law, the law of nature dictates that the occurrence is not unique to past and present times, and will, with frequency, occur in the future. The gravity of the offense in this case is one that borders on misdemeanor status. Had the girls been two and six months older, the defendant would stand convicted of the lowest class felony defined ed, a class 6 felony. On the other hand had the girls been two months and six months old, the defendant would stand convicted of the same offense as he presently stands, and would be punished under the same mandatory sentence. The gravity of the offense in the latter instance is obvious. The offender would have committed what has been universally defined as the worst kind of offense. The nature of his abominable acts would be universally considered to be extremely grave. Accordingly, a harsh punishment would be warranted. The gravity of the offense in the first instance i858 relatively minor. It is simply untrue to say that the gravity of his offense is that of a child molester. The nature of the offense is fornication with a statutorily underage girl. The nature, and hence the gravity, of these two offenses are as difterent as night and day. In this case, when one compares the gravity of the ofrense with the severity ofr the sentence, the only conclusion that a person of reason can come to is that the two are disproportionate. However, on this ground alone, one would not find relief under Solem v. Helm unless it were demonstrable that other persons convicted of more serious or equally serious types oft crimes, in his state, had sentences imposed on them which were less severe than his. Prong Two: Comparina the Sentences Imposed on Other Criminals in the Same Jurisdiction. This prong calls for a comparison of the sentences imposed on otner criminals convicted ot offenses in the same jurisdiction, and determining whether the questioned sentence is disproportionate to these other sentences In the extreme an example may be given in that if one were sentenced to a definite 10 year sentence for shoplifting, the sentence would be disproportionate if armed robbery was punishable with a 3 year sentence. In this instance that latter offense is ‘onsidered to be a more serious offense, and it would be 40 fundamentally unfair to set the former offense with a harsher sentence. It is submitted that it would be the most extreme exception in which a legislature would purposely enact a mandatory sentence that ignored this obviously fundamental consideration. fa is only remotely possible that the judiciary would called upon to correct a mistake such as this. However, to say that it is remotely possible is not to say that it is impossible. That which is considered remotely possibie is, in other words, a rare occurrence, and it is in such rare circumstances that the judiciary would be compelled to involve itself ina manner as prescribed in Solem v. Helm. There are other situations that may occur where the effect of a mandatory punishment statute is not the intended result, a result that does not reach the legislative intent behind the enactment of the underlying statute. Yet, because the statute is mandatory, the unwanted result can not be corrected by the trial judge during imposition of the sen- tence. Such is the case here. It is self-evident that the result obtained here did not even remotely reflect what was intended to be addressed by the Arizona Legislature. The minutes of the Arizona Legislature, attached to Petitioner’s brief as Appendix D, is unconvincing of the legislative intent being fulfilled in the instant case. It is submitted that no reasonable person believes that the Crime that the Respondent committed deserved the mitigated 41 sentence of 40 years imprisonment. [Counsel’s belief is based upon the fact that, because such a punishment has never, in the recorded history of our nation, been imposed for a crime such as this, it is simply not a punishment that a sane person would consider, advocate, or applaud. } Indeed, every Justice sitting on the Arizona Supreme Court, a Court that is traditionally very conservative, believed the sentence imposed in this case was an unjust result. All these justices, each from differing backgrounds, beliefs, and philosophies, held the mandatory penalty in this case was of a kind that was "....so0 severe as to shock the conscience of society,” and found it cruel and unusual. State v. Bartlett, supra, at 692. (Citing with favor State v. Davis, 108 Ariz. 335, 337 498 P.2d 202, 204 (1982). It is submitted that the Justices of the Arizona Supreme Court are not so removed from community standards and values that they could be said to be unable to appreciate the conscience of society in Arizona. Any reasonable person, be it a legisla- tor, jurist, carpenter or scientist, would be alarmed at the sentence in this case. The sentence does not fit the crime committed. Unlike the opinions held by others, the judge must act, because he is duty bound, to maintain a relationship between law and morals, between the precepts of jurisprudence and those of reason and good conscience. When the legislature decrees a mandatory sentence of life in prison as a punishment 42 for assassination, rape, or arson of an occupied structure, the judiciary should and does carry out the will of the leqislature and imposes that sentence on the criminal convicted of the respective offense. However, when the same harsh mandatory sentence is, either by design or uninten- tionally, applicable to a person who is guilty of disorderly conduct, fornication, or vandalism, the judiciary has the responsibility to balk at meting out such punishment. The justification for not abiding by the legislative mandate lies, partly, in the judicial ability to compare the sentences imposed on other criminals convicted of offenses in the same Jurisdiction, and then to determine whether the questioned sentence is disproportionate to those other sentences. This prong is not unworkable and is not difficult to achieve. The consulting of the readily accessible annotated criminal Statute books of a given state provides a ready answer to the inquiry required under this prong. However, on this ground alone, one would not find relief under Solem v. Helm unless it were demonstrable that other persons convicted of this type of crime in other jurisdictions had sentences imposed on them significantly less severe than Respondent's. 43 3. Prong Three: Comparing the Sentences Imposed For The Same Crime In Other Jurisdictions. This prong calls for a comparison of the sentences imposed for the same crime in other jurisdictions, and determining whether the questioned sentence is dispropor- tionate to those other imposed sentences. In other words, if it were a common legislative practice in the several states to require a mandatory mitigated sentence of 40 years for every young man guilty of fornicating with a girl just under the age of 15 years, then, technically, under Solem v. Helm, no defendant would be entitled to judicial relief. The Petitioner takes the position that this prong actually means ary sentence imposable in other jurisdictions rather than any sentence actually imposed This argument is, first, incorrect, and, second, continues to fail in that no other jurisdiction in the United States has a sentencing judge been compelled to impose a 4‘ year mitigated mandatory sentence in a case such as the one before the bench The sentence imposed in State v. Bartlett is an historical event, f dubious value, in Anglo-American jurisprudence As far as Respondent is able tc inderstand the Peti- tioner’s argument, the State slaims that this prong is unworkable because an actual comparison among the states i8 an impossible task. Based on the alleged difficulty involved the State of Arizona advocates the reversa 44 and, inturn, State v. Bartiett. To illustrate the point, The Petitioner has attached to it’s Petition for Writ of Certio- rari a chart, which Petitioner’s counsel has claimed to have constructed. Because the Petitioner relies heavily on this point, several impugning points need to be made. The first point regards the object that this chart seeks to demonstrate. The Petitioner has placed 26 stars next to 26 states and the legend refers to these states as "states having potential sentencing parameters consistent with those in Arizona." This legend is not factual. A truthful statement would be that these states have the potential ability to sentence the Respondent to a sentence as was imposed in Arizona. For Petitioner’s chart legend to be truthful, it would be necessary to show that other states share Arizona’s sentencing "parameters" in like cases. The fact is none do. There is not one other state in the Union that mandates the \mposition of 15 to 25 year sentence for a like crime. Other States provide a wide range of sentences. For example, Montana provides that, if the Respondent were sentenced there, he could receive a sentence ranging from 2 to 40 years. The offense punishable under the Montana statute involves having sexual relations with a female from birth to the age of 16 years. This is not the same “sentencing parameters" as in Arizona. Parameter, in the plural sense, has always conveyed the meaning of two or more constant determining factors or 45 characteristics in which given variables lie between. In this case, the constant determining characteristics are the minimum and maximum sentence allowed, under statute, for having sexual relations with a 14 year old girl. Again, no other state mandates a minimum sentence of 15 years. The states with the next highest minimum sentences are Delaware and Kansas, the minimum sentence in each of those states being 3 years. The Petitioner has misrepresented a crucial fact to this Court when counsel states that 26 other states have similar sentencing "parameters" as Arizona. The second point regarding the Petitioner’s chart ig, that, when possible, there is listed therein the more grave offense of child molestation, and the consistently harsh penalties associated with that offense. This is even done when the controlling statute, which would be applicable to this case, is available. An example is the first two listed, Alabama and Alaska. There is no reason to include offenses committed on 11 and 12 year old girls, which carry the stern sentences one could expect to see in those types of cases. None of the references to these types of statutes are rele- vant. It is submitted that they are given to serve two disin- genuous purposes: First, to convince this Court that there is a uniformity in treatment among the states with regard to sentencing others similarly situated, and in this sense, these references only serves to place an appearance of consis- 46 tency where it does not belong; and, second, with painstaking effort, to attempt to present a mirage that the satisfaction of this prong is a confusing impossibility and, thus, unwork- able. In answering a simple question such as: "What is the range of sentencing in Alaska for the offense of having consensual intercourse with a girl over 14 years of age yet >" under 15 years of aqe? Petitioner’s answer is: f S 22: Be. tas f e > 3Y VES; LE SCGOAV., @ VES: , if 2nd, 15 yvre; if > 2, 25 yrs/# | > 190 VEE, ROE a MR tk ALe CLASSIFICATIONS; DISPOSITIONS § 13-604.01 Ch. 6 ten years. If the convicted person has been previously convicted of one predicate felony the person shall be sentenced to a presumptive term of imprisonment for fifteen years. D. The presumptive sentences prescribed in subsections A, B and C of this section may be increased or decreased by up to five years pursuant to the provisions of § 13-702, subsections C, D and E. E. A person sentenced for a dangerous crime against children in the first degree pursuant to this section is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from con- finement on any other basis except as specifically authorized by § 31-233, subsection A or B until the sentence imposed by the court has been served. F. A person who stands convicted of any dangerous crime against children in the first degree having been previously convicted of two or more predicate felonies shall be sentenced to life imprisonment and is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis except as specifical- ly authorized by § 31-233, subsection A or B until the person has served not fewer than thirty-five years. G. Notwithstanding chapter 10 of this title,! a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a dangerous crime against children in the second degree is guilty of a class 3 felony and shall be sentenced to a presumptive term of imprison- ment for ten years. The presumptive term may be increased or decreased by up to five years pursuant to § 13-702, subsections C, D and E. If the person is sentenced to a term of imprisonment the person is not eligible for release from confinement on any basis until the person has served not less than one-half the sentence imposed by the court. H. Section 13-604, subsections H and I apply to the determination of prior convictions. I. In addition to the term of imprisonment imposed pursuant to this section and notwithstanding any other law, the court shall order that a person convicted of any dangerous crime against children in the first degree be supervised on parole after release from confinement on such conditions as the court or the board of pardons and paroles deems appropriate for the rest of the person's life. If the person is convicted of any dangerous crime against children in the second degree the court, in addition to any term of imprison- ment imposed or in lieu of the term if probation is otherwise authorized, may order that the person convicted be supervised on probation or on parole after release from confinement on such conditions as the court or board of pardons and paroles deems appropriate for any term up to the rest of the person’s life. J. The sentence imposed on a person by the court for a dangerous crime against children in the first or second degree shall be consecutive to any other sentence imposed on the person at any time. K. In this section: 251 APPENDIX B, page 2 § 13-604.01 CRIMINAL CODE Title 13 1. “Dangerous crime against children” means any of the following commit- ted against a minor under fifteen years of age: (a) Second degree murder. (b) Aggravated assault resulting in serious physical injury or committed by the use of a deadly weapon or dangerous instrument. (c) Sexual assault. (d) Molestation of a child. (e) Sexual conduct with a minor. (f) Commercial sexual exploitation of a minor. (g) Sexual exploitation of a minor. (h) Child abuse as defined in § 13-3623, subsection B, paragraph 1. (i) Kidnapping. (j) Sexual abuse. (k) Taking a child for the purpose of prostitution as defined in § 13-3206. (1) Child prostitution as defined in § 13-3212. (m) Involving or using minors in drug offenses. A dangerous crime against children is in the first degree if it is a completed offense and is in the second degree if it is a preparatory offense. 2. “Predicate felony” means any felony involving child abuse, a sexual offense, conduct involving the intentional or knowing infliction of serious physical injury or the use or exhibition of a deadly weapon or dangerous instrument, or a dangerous crime against children in the first or second degree. Added by Laws 1985, Ch. 364, § 6, eff. May 16, 1985. Amended by Laws 1987, Ch. 166, § 1; Laws 1987, Ch. 307, § 4. 1 Section 13-1001 et seq. Historical Note Laws 1987, Ch. 166, § 1, provided in subsec. offenses committed while released from con- A for taking a child for the purpose of prostitu- finement, was renumbered as § 13-604.02 by tion and child prostitution, and add pars. (1)k Laws 1985, Ch. 364, § 5, effective May 16, and 1(/) to subsec. K. 1985. Laws 1987, oe a os provided for — ing a minor in a drug offense in subsec. A, an added aekens. Eitan). 1987 Reviser’s Note: Former § 13-604.01, added by Laws 1982, This section contains the amendments made Ch. 322, § 2, amended by Laws 1983, Ch. 32, by Laws 1987, Ch. 166, § 1 and Ch. 307, § 4, § 1, Laws 1984, Ch. 163, § 1, and Laws 1985, which were blended together as shown above Ch. 227, § 1, and relating to punishment for pursuant to authority of § 41-1304.03. APPENDIX B, page 3 § 13-701. Sentence of imprisonment for felony; presentence report A. A sentence of imprisonment for a felony shall be a definite term of years and the person sentenced, unless otherwise provided by law, shall be committed to the custody of the state department of corrections. B. No prisoner may be transferred to the custody of the state department of corrections without a certified copy of the judgment and sentence, signed by the sentencing judge, and a copy of a recent presentence investigation report unless the court has waived preparation of the report. C. Except as provided in § 13-604 the term of imprisonment for a felony shall be determined as follows for a first offense: 1. For a class 2 felony, seven years. 2. For a class 3 felony, five years. 3. For a class 4 felony, four years. 4. For aclass 5 felony, two years. 5. For a class 6 felony, one and one-half years. Added as § 13-901 by Laws 1977, Ch. 142, § 57, eff. Oct. 1, 1978. Renumbered as § 13-701 and amended by Laws 1978, Ch. 201, §§ 104, 105, eff. Oct. 1, 1978. Amended by Laws 1988, Ch. 66, § 1. Historical Note Source: Rev.Code 1928, § 4585. Code 1939, § 43-2903. A.R.S. former § 13-453. The 1978 amendment substituted “shall be a definite term of years and the person sen- tenced unless otherwise provided by law, shail be committed to the custody of the department of corrections” for “except as provided in § 13-704, shall be a presumptive sentence” in subsec. A, and inserted “except as provided in § 13-604" in subsec. B. The 1988 amendment inserted “state” preced- ing “department” in subsec. A; inserted subsec. B; and redesignated former subsec. B as sub- sec. C, Section 13-701 as added by Laws 1977, Ch. 142, § 48, eff. Oct. 1, 1978, was transferred and renumbered as § 13-601; see italicized note preceding this section. Original § 13-701, derived from Pen.Code 1901, §§ 30, 31, 33; Pen.Code 1913, §§ 30, 31, 33; Rev.Code 1928, § 4492; Code 1939, § 43-5701, and defining treason and provided punishment therefor, was repealed by Laws 1977, Ch. 142, § 23, eff. Oct. 1, 1978. For disposition of the subject matter of sec- tions of the former Criminal Code, see Disposi- tion Tableat the front of this volume 1978 Reviser’s Note: Pursuant to authority of § 41-1304.02, a comma was added after the word “sentenced” in subsection A, and the words “Except as provided in § 13-604" were transposed to the beginning of the sentence in subsection B. 270 APPENDIX C | ——— : § 13-604. Dangerous and repetitive offenders; definition A. Except as provided in subsection F of this section or § 13-604.01, a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a class 4, 5 or 6 felony, whether a completed or preparatory offense, and who has previously been convicted of any felony within ten years next preceding the date of the present offense shall be sentenced to imprisonment for not less than the sentence and not more than twice the sentence authorized by § 13-701 for the offense for which the person currently stands convicted and shall not be eligible for suspension or commutation of sentence, probation, pardon or parole, work furlough or release from confinement on any other basis except as specifically authorized by § 31-233, subsection A or B until not less than one-half of the sentence imposed by the court has been served. Upon imposing a sentence pursuant to this subsection the court shall impose as a presumptive term the median of the allowable range. The presumptive term may be mitigated or aggravated within the range prescribed under this subsection pursuant to the terms of § 13-702, subsections C, D and E. B. Except as provided in subsection G of this section or § 13-604.01, a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a class 2 or 3 felony, whether a completed or preparatory offense, and who has previously been convicted of any felony shall be sentenced to imprisonment for not less than the sentence and not more than three times the sentence authorized by § 13-701 for the offense for which the person currently stands convicted and shall not be eligible for suspension or commutation of sentence, probation, pardon or parole, work furlough or release from confinement on any other basis except as specifical- ly authorized by § 31-233, subsection A or B until not less than two-thirds of the sentence imposed by the court has been served. Upon imposing a 211 APPENDIX D, page 1 — nly C0 wens | | i | § 13-604 CRIMINAL CODE Title 13 sentence pursuant to this subsection the court shall impose as a presumptive term three-fourths of the median of the allowable range. The presumptive term may be mitigated or aggravated within the range prescribed under this subsection pursuant to the terms of § 13-702, subsections C, D and E. C. Except as provided in subsection F or N of this section or § 13-604.01, a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a class 4, 5 or 6 felony, whether a completed or preparatory offense, and who has been previously convicted of two or more felonies shall be sentenced to imprisonment for at least twice the sentence and not more than three times the sentence authorized by § 13-701 for the offense for which the person currently stands convicted and shall not be eligible for suspension or commutation of sentence, probation, pardon or parole, work furlough or release from confinement on any other basis except as specifically authorized by § 31-233, subsection A or B until not less than two-thirds of the sentence imposed by the court has been served. Upon imposing a sentence pursuant to this subsection the court shall impose as a presumptive term the median of the allowable range. The presumptive term may be mitigated or aggravated within the range prescribed under this subsection pursuant to the terms of § 13-702, subsections C, D and E. D. Except as provided in subsection G or N of this section or § 13-604.01, a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a class 2 or 3 felony, 1nd who has been previously convicted of two or more felonies, shall be sent nced to imprison- ment for at least twice the sentence and not more than four times the sentence authorized by § 13-701 for the offense for which the person current- ly stands convicted and shall not be eligible for suspension or commutation of sentence, probation, pardon or parole, work furlough or release from confine- ment on any other basis except as specifically authorized by § 31-233, subsection A or B until not less than two-thirds of the sentence imposed by the court has been served. Upon imposing a sentence pursuant to this subsection the court shall impose as a presumptive term three-fourths of the median of the allowable range. The presumptive term may be mitigated or aggravated within the range prescribed under this subsection pursuant to the terms of § 13-702, subsections C, D and E. E. A person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of any misdemeanor or petty offense, other than a traffic offense, and has been convicted of one or more of the same misdemeanors or petty offenses within two years next preceding the date of the present offense shall be sentenced for the next higher class of offense than that for which such person currently stands convicted. F. Except as provided in § 13-604.01, a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a class 4, 5 or 6 felony involving the intentional or knowing infliction of serious physical injury or the use or exhibition of a deadly weapon or dangerous instrument without having previously been convicted of any felony shall be sentenced to imprisonment for not less than the sentence and not more than 212 APPENDIX D, page 2 CLASSIFICATIONS; DISPOSITIONS § 13-604 Ch. 6 twice the sentence authorized in § 13-701 for the offense for which the person currently stands convicted and shall not be eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis except as specifically authorized by § 31-233, subsection A or B until not less than one-half of the sentence imposed by the court has been served. Except as provided in § 13-604.01, upon conviction of a class 4, 5 or 6 felony involving the intentional or knowing infliction of serious physical injury or the use or exhibition of a deadly weapon or dangerous instrument a person who has once previously been convicted of any felony involving the intentional or knowing infliction of serious physical injury or the use or exhibition of a deadly weapon or dangerous instrument shall be sentenced to imprisonment for twice the sentence and not more than three times the sentence authorized in § 13-701 for the offense for which the person currently stands convicted and shall not be eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis except as specifically authorized by § 31-233, subsection A or B until not less than two-thirds of the sentence imposed by the court has been served. Except as provided in subsection N of this section or § 13-604.01, upon conviction of a class 4, 5 or 6 felony involving the intentional or knowing infliction of serious physical injury or the use or exhibition of a deadly weapon or dangerous instrument a person who has been previously convicted of two or more felonies involving the intentional or knowing infliction of serious physical injury or the use or exhibition of a deadly weapon or dangerous instrument shall be sentenced to imprisonment for three times the sentence and not more than four times the sentence authorized in § 13-701 for the offense for which the person currently stands convicted and shall not be eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis except as specifically authorized by § 31-233, subsection A or B until not less than two-thirds of the sentence imposed by the court has been served. Upon imposing a sentence pursuant to this subsection the court shall impose as a presumptive term the median of the allowable range. The presumptive term may be mitigated or aggravated within the range prescribed under this subsection pursuant to the terms of § 13-702, subsections C, D and E. G. Except as provided in § 13-604.01, upon a first conviction of a class 2 or 3 felony involving use or exhibition of a deadly weapon or dangerous instrument or upon conviction of a class 2 or 3 felony when the intentional or knowing infliction of serious physical injury upon another has occurred, the defendant shall be sentenced to imprisonment for not less than the sentence and not more than three times the sentence authorized in § 13-701 for the offense for which the person currently stands convicted and shall not be eligible for suspension or commutation of sentence, probation, pardon or parole, work furlough or release from confinement on any other basis except as specifically authorized by § 31-233, subsection A or B until not less than two-thirds of the sentence imposed by the court has been served. Except as provided in § 13-604.01, upon conviction of a class 2 or 3 felony involving the 213 APPENDIX D, page 3 § 13-604 CRIMINAL CODE Title 13 use or exhibition of a deadly weapon or dangerous instrument or the inten- tional or knowing infliction of serious physical injury upon another, a person who has once previously been convicted of a class 1, 2 or 3 felony involving the use or exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another shall be sentenced to imprisonment for twice the sentence and not more than four times the sentence authorized in § 13-701 for the offense for which the person currently stands convicted and shall not be eligible for suspension or commutation of sentence, probation, pardon or parole, work furlough or release from confinement on any other basis except as specifically authorized by § 31-233, subsection A or B until not less than two-thirds of the sentence imposed by the court has been served. Except as provided in subsection N of this section or § 13-604.01, upon conviction for a class 2 or 3 felony involving the use or exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury upon another, a person who has been previously convicted of two or more class 1, 2 or 3 felonies involving the use or exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another shall be sentenced to imprisonment for three times the sentence and not more than five times the sentence authorized in § 13-701 for the offense for which the person currently stands convicted, and shall not be eligible for suspension or commutation of sentence, probation, pardon or parc le, work furlough or release from confinement on any other basis except as specifically authorized by § 31-233, subsection A or B until not less than two-thirds of the sentence imposed by the court has been served. Upon imposing a sentence pursuant to this subsection the court shall impose as a presumptive term three-fourths of the median of the allowable range, except in the case of a person with two or more class 1, 2 or 3 felony convictions in which case the presumptive term shall be the median of the allowable range. The presumptive term may be mitigated or aggravated within the range prescribed under this subsection pursuant to the terms of § 13-702, subsec- tions C, D and E. For the purposes of this subsection in determining the applicability of the penalties provided herein for second or subsequent class 2 or 3 felonies, the conviction for any felony committed prior to October 1, 1978 which, if committed after October 1, 1978, could be a dangerous felony under this section may be designated by the state as a prior felony. H. Convictions for two or more offenses not committed on the same occasion but consolidated for trial purposes may, at the discretion of the state, be counted as prior convictions for purposes of this section. Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for purposes of this section. I. A person who has been con ‘icted in any court outside the jurisdiction of this state of an offense which if committed within this state would be punishable as a felony or misdemeanor is subject to the provisions of this section. A person who has been convicted as an adult of an offense punisha- ble as a felony or a misdemeanor under the provisions of any prior code in this state shall be subject to the provisions of this section. 214 APPENDIX D, page 4 CLASSIFICATIONS; DISPOSITIONS § 13-604 Ch. 6 J. Time spent incarcerated within the ten years next preceding the date of the offense for which a person is currently being sentenced under subsection A of this section and time spent incarcerated within the two years next preceding the date of the offense for which a person is currently being sentenced under subsection E of this section shall not be included in the ten years or two years required to be free of convictions for purposes of those subsections. K. The penalties prescribed by this section shall be substituted for the penalties otherwise authorized by law if the previous conviction, the danger- ous nature of the felony or the allegation that the defendant committed a felony while released on bond or on his own recognizance as provided in subsection M of this section is charged in the indictment or information and admitted or found by the trier of fact. The court shall allow the allegation of a prior conviction, the dangerous nature of the felony or the allegation that the defendant committed a felony while released on bond or on his own recognizance at any time prior to the date the case is actually tried unless the allegation is filed fewer than twenty days before the case is actually tried and the court finds on the record that the defendant was in fact prejudiced by the untimely filing and states the reasons for these findings, provided that when the allegation of a prior conviction is filed, the state must make available to the defendant a copy of any material or information obtained concerning the prior conviction. Before the trial on the charge of the previous conviction or the allegation that the defendant committed a felony while released on bond or on his own recognizance, the charge of previous conviction or the allega- tion that the defendant committed a felony while released on bond or on his own recognizance shall not be read to the jury. For the purposes of this subsection, “dangerous nature of the felony” means a felony involving the use or exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury upon another. L. Intentional failure by the court to impose the mandatory sentences or probation conditions provided in this title shall be deemed to be malfeasance. M. A person convicted of committing any felony offense, which felony offense is committed while the person is released on bail or on his own recognizance on a separate felony offense, shall be sentenced to a term of imprisonment two years longer than would otherwise be imposed for the felony offense committed while released on bond or on his own recognizance. The additional sentence imposed under this subsection is in addition to any enhanced punishment that may be applicable under any of the other subsec- tions of this section. N. A person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a serious offense except first degree murder or any dangerous crime against children, whether a completed or preparatory offense, and who has previously been convicted of two or more serious offenses not committed on the same occasion shall be sentenced to life imprisonment and is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confine- 215 APPENDIX D, page 5 § 13-604 CRIMINAL CODE Title 13 ment on any other basis except as specifically authorized by § 31-233, subsection A or B until the person has served not less than twenty-five years. O. As used in this section, “serious offense” means any of the following offenses if committed in this state or any offense committed outside this state which if committed in this state would constitute one of the following offenses: First degree murder. Second degree murder. Manslaughter. Aggravated assault resulting in serious physical ‘injury or committed by use of a deadly weapon or dangerous instrument. th Sexual assault. Any dangerous crime against children. Arson of an occupied structure. . Armed robbery. Burglary in the first degree. oN aAuNeh wn 9 10. Kidnapping. 11. Sexual conduct with a minor under fifteen years of age. 12. A drug related felony offense pursuant to § 13-3404.01, a violation of § 13-3405 involving an amount of marijuana having a weight at the time of seizure of eight pounds or more, a felony violation of § 13-3406 or any violation of §§ 13-3407 through 13-3409. Added as § 13-704 by Laws 1977, Ch. 142, § 48, eff. Oct. 1, 1978. Renumbered as § 13-604 and amended by Laws 1978, Ch. 201, §§ 98, 101, eff. Oct. 1, 1978. Amended by Laws 1980, Ch. 229, § 7, eff. April 23, 1980; Laws 1981, Ch. 165, § 1; Laws 1982, Ch. 322, § 1; Laws 1984, Ch. 42, § 1; Laws 1984, Ch. 325, § 1; Laws 1985, Ch. 146, § 1; Laws 1985, Ch. 364, § 4, eff. May 16, 1985; Laws 1987, Ch. 307, § 3. Historical Note Source: der this subsection” and substituted “13-702, Pen.Code 1901, 618, 630, 632. subsection C, D and E” for “13-901.01"; in evap 1913, 726, 738, 739. subsec. B, inserted “of this section”, substituted Rev.Code 1928, §§ 4898, 4899. "13-701" for “13-901”, “subsection” for “para- Code 1939, § 43-6112. graph”, and “13-702, subsections C, D and E” Laws 1951. Ch. 110 § 1. for “13-702”, and inserted “not less than two- Code 1939, Supp.1952, § 43-6111. thirds of; in subsec. C, inserted “of this sec- ARS. former §§ 13-1649, 13-1650. tion”, substituted “13-701” for “13-901”, and inserted “not less than two-thirds of” in the The 1978 amendment, in subsec. A, inserted first sentence, “of this section”, substituted “§ 13-701" for “§ 13-901", and substituted “not less than one- half of the sentence imposed by the court” for “the minimum sentence” in the first sentence, in the second sentence substituted “subsection” for “paragraph”, deleted “three-fourths of” fol- lowing “presumptive term” and deleted an ex- ception clause relating to class 6 felonies, and in the final sentence inserted “prescribed un- substituted “subsection” for “paragraph” and deleted “three-fourths of”, and an exception clause to class 6 felonies in the second sentence, and in the final sentence in- serted “prescribed under this subsection” and substituted “13-702, subsections C, D and E” for “13-901.01"; in subsec. D, inserted “of this section”, substituted “13-701” for “13-901”, and inserted “not less than two-thirds of” in the first sentence, in the second sentence substitut- 216 APPENDIX D, page 6 CLASSIFICATIONS; DISPOSITIONS Ch. 6 ed “subsection” for “paragraph”, and in the final sentence inserted “prescribed under this subsection” and substituted “13-702, subsec- tions C, D and E” for “13-901.01"; in subsec. E, inserted references to petty offenses and re- duced convictions from two to one; inserted subsec. F, and redesignated subsequent subsec- tions; in subsec. G, substituted “or knowing” for “knowing or reckless”, “13-701” for “13- 901” and inserted “not less than two-thirds of" throughout the first sentence, in the second | sentence substituted “subsection” for “para- Pp graph” and added exception, in the third sen- _ tence inserted “prescribed under this subsec- ' tion” and substituted “13-702, subsections C, D ' and E” for “13-901.01", and added the final sentence; in subsec. H, deleted “or as part of a single continuing course of action” following “some occasion”, inserted “at the discretion of the state”, and added the second sentence; and in subsec. K, inserted “or the dangerous nature of the felony” in the first and second sentences, inserted “of a prior conviction” in the second sentence and added the final sentence. The 1980 amendment substituted near the end of subsec. G “if committed after October 1, 1978, could be a dangerous felony under this section” for “carries a penalty of up to life imprisonment”. Prior to amendment, subsec. G provided: “Upon a first conviction of a class 2 or 3 felony involving use or exhibition of a deadly weapon or dangerous instrument or upon con- viction of a class 2 or 3 felony when the inten- tional or knowing infliction of serious physical injury upon another has occurred, the defen- dant shall be sentenced to imprisonment for not less than the sentence and not more than three times the sentence authorized in § 13-701 for the offense for which the person currently stands convicted, and shall not be eligible for suspension or commutation of sen- tence, probation, pardon or parole or release on any other basis until not less than two- thirds of the sentence imposed by the court has been served. Upon a second conviction of a class 2 or 3 felony involving use or exhibition of a deadly weapon or dangerous instrument or upon a second conviction for a class 2 or 3 felony when the intentional or knowing inflic- tion of serious physical injury upon another has occurred, the defendant shall be sentenced to imprisonment for twice the sentence and not more than four times the sentence autho- rized in § 13-701 for the offense for which the person currently stands convicted, and shail not be eligible for suspension or commutation of sentence, probation, pardon or parole or release on any other basis until not less than two-thirds of the sentence imposed by the court has been served. Upon a third or subse- quent conviction for a class 2 or 3 felony § 13-604 involving use or exhibition of a deadly weapon or dangerous instrument or upon the third or subsequent cenviction for a class 2 or 3 felony when the intentional or knowing infliction of serious physical injury upon another has oc- curred, the defendant shall be sentenced to imprisonment for three times the sentence and not more than five times the sentence autho- rized in § 13-701 for the offense for which the person currently stands convicted and shall not be eligible for suspension or commutation of sentence, probation, pardon or parole or release on any other basis until not less than two-thirds of the sentence imposed by the court has been served. Upon imposing a sen- tence pursuant to this subsection the court shall impose as a presumptive term three- fourths of the median of the allowable range, except in the case of a third or subsequent conviction in which case the presumptive term shall be the median of the allowable range. The presumptive term may be mitigated or aggravated within the range prescribed under this subsection pursuant to the terms of § 13-702, subsections C, D and E. For the purposes of this subsection in determining the applicability of the penalties provided herein for second or subsequent class 2 or 3 felonies, the conviction for any felony committed prior to October 1, 1978 which carries a penalty of up to life imprisonment may be designated by the state as a prior felony. The !°81 amendment included provisions in subsec. K pertaining to allegations that defen- dant committed a felony while released on bond or his own recognizance, and added sub- sec. M. The 1982 amendment substituted throughout the section “work furlough or release from confinement on any basis except as specifically authorized by § 31-233, subsection A or B” for “or release on any other basis”. Laws 1982, Ch. 322, § 10 provides: “Notwithstanding the provisions of this act, the legislature intends that, if the provisions of title 41, chapter 20 (§ 41-2351 et seq.], Arizona Revised Statutes, operate to terminate the state department of corrections or the board of par- dons and paroles, any provisions regarding powers, duties, functions or personnel added or amended by this act terminate on the date of termination of the agency affected.” Laws 1984, Ch. 42, § 1, substantially rewrote provisions for multiple subsequent offenses in- volving deadly or dangerous weapons in sub- sec. G. Laws 1984, Ch. 325, § 1, inserted exception pertaining to subsec. N in subsecs. F and G, and added subsec. N. SARSA—@ 217 APPENDIX D, page 7 § 13-604 Laws 1985, Ch. 146, § 1, in subsec. K mod- ified the second sentence by substituting “shall” for “in its discretion may”, and insert- ing “the date the case is actually tried unless the allegation is filed fewer than twenty days before the case is actually tried and the court finds on the record that the defendant was in fact prejudiced by the untimely filing and states the reasons for these findings”. Laws 1985, Ch. 364, § 4, inserted in subsecs. F and G references to § 13-604.01; inserted in subsec. N “or any dangerous crime against children” and substituted same for “Child mo- lestation” as subsec. O, 6; and added subsec. O, 11. The 1987 amendment added subsec. O, 12. APPENDIX CRIMINAL CODE Title 13 Former § 13-604 was transferred and re. numbered as § 13-1004; see italicized note preceding § 13-601. Reviser’s Notes: 1984 Note. Prior to the 1985 amendments, this section contained the amendments made by Laws 1984, Ch. 42, § 1 and Ch. 325, § 1 which were blended together pursuant to au- thority of § 41-1304.03. 1985 Note. This section contains the amend- ments made by Laws 1985, Ch. 146, § 1 and Ch. 364, § 4 which were blended together as shown above pursuant to authority of § 41-1304.03. D, page 8 APPENDIX “" E " -> 2 . a ae CA S ES Alabama: wn ap) Casey v. State, 456 S.2d 1142 (Ala. 1984) Brooks v. State, 456 S.2d 1142 (Ala. 1984) Norris v. State, 455 S.2d 226 (Ala. 1984) Minor v. State, 451 S.2d 433 (Ala. 1984) Anderson v. State, 455 S.2d 957 (Ala. 1984) Thomas v. State, 447 S.2d 203 (Ala. 1984) jr Taylor v. State, 445 S.2d 1004 (Ala. 1984) Wabbington v. State, 446 S.2d 665 (Ala. 1983) Hughes v. State, 442 S.2d 1382 (Ala. 1983) Robertson v. State, 442 §.2d 162 (Ala. 1983) Minor v _ State, 437 S.2d 651 (Ala. 1983) Alaska: Dancer v. State, 715 P.2d 1174 (Alaska 1986) Heathcock v. State, 670 P.2d 1155 (Alaska 1983) Arizona: State v. Bartlett, 732 P.2d 692 (Ariz. 1990) State v. Jonas aka Mecklenburg, 792 P.2d 705 (Ariz. 1990) State v. ~”> Taylor aka Pierce, 773 P.2¢d 974 (Ariz. 1989) State v. Griffin, 744 P.2d 10 (Ariz. 1987) State v. Hurley, 741 P.2d 257 (Ariz. 1987) State v. Daxvon, 735 ©.2d 761 (Ariz. i987) State v. Day, 715 P.2d 743 (Ariz. 1986) State v. Allie, 710 P.2d 430 (Ariz. 1985) State v. Cocio, 709 P.2d 1336 (Ariz. 1985) State v. Borbon, 706 P.2d 718 (Ariz. 1985) State v. Perkins, 699 P.2d 364 (Ariz. 1985) State v -Williams, 698 P.2d 724 (Ariz. 1985) State v. J. Williams, 698 P.2d 678 (Ariz. 1985) State v. Hutton, 694 P.2d 216 (Ariz. 1985) State v. Goswisk,, 691 P.2d 673 (Ariz. 1984) State v. Noriega, 690 P.2d 775 (Ariz. 198) jw v. McNair, 687 P.2d 1230 (Ariz. 1984) v. Garcia, 685 P.2d 734 (Ariz. 1984) v. Hankins and Satterfield, 686 P.2d v. Smith, 681 P.2d 1374 (Ariz. 1984) v. Ross, 67 Ariz. Adv. Rep. 38 (Aug. 1990) v. Leyva, 60 Ariz. Adv. Rep. 61 (May v. Wise aka Bowser and Jackson, 795 1980) v. Lammie, 793 P.2d 134 (Ariz. 1983) = aits, 786 P.2d 1067 (Ariz. 1989) v. Marquez-Sosa, 779 P.2d 815 (Ariz. v. Byrd, 772 P.2d i135 (Ariz. 1988) v. Olsen, 760 P.2d 603 (Ariz. 1988) v. Smith, 753 P.2d 1174 (Ariz. 1987) v. Crego, 742 P.2d 289 (Ariz. 1987) v. Griffin, 744 P.2d 8 (Ariz. 1986) v. Pacheco, 730 P.2d 262 (Ariz. 1986) v. Carson, 720 P.2d 972 (Ariz. 1986) v. Adams, 703 P.2d 510 (Ariz. 1985) v. Johnson, 693 P.2d 973 (Ariz. 1984) v. Riley, } 684 P.2d 896 (Ariz. 1984) v. Flores, 682 P.2d 1136 (Ariz. 1984) Arkansas: Thompson v. State, 658 S.W.2d 350 (Ark. 1983) ae California: People v. Jennings, 760 P.2d 475 (Cal. 1988) People v Bunyard, 756 P.2d 795 (Cal 1988 ) People v. Poggi, 753 P.2d 1182 (Cal. 1988 People v. Dillon, 668 P.2d 697 (Cal. 1983) People v. Ladanio, 211 Cal.App.3d 1114 Cal. 989 People v. Valencia, 207 11. App.3d 104: Cal 1989 People v. Jameson, 177 Cal.App.3d 658 (Cal 1986 People v. Ross, 162 Cal.App.3d 1043 (Cal 1984) People v. Sabados, 160 Cal.App.3d 691 (Cal. 1984) People v. Oslaver, 157 Cal.App.3d 596 (Cal. 1984) People v. Courie, 155 Cal.App.3d 415 (Cal. 1984) Colorado: Alvarez v. People, No. 89SC169, (Sept. 10, 199 1990) People v. Hernandez, 686 P.2d 366 (Colo 984) People v. Austin, No. 87CA1648, ner. 26, if (Col 199 People v. Herrera, 728 P.2d 366 (Colo. 198¢ People v. Wandel, 71 P.2d 398 >] 19€ People v. Nieto, 715 P.2d 1262 (Cola 1985) People v. Martinez, 689 P.2d 653 (Colo. 1584 ju Connecticut: tate v. Hernandez, 528 A.2d 794 (Conn. 1987) State v. O’Neill, 511 A.2d 321 (Conn. 1986) tate v. Madera, 503 A.2d 136 (Conn. 1985) State v. Dupree, 495 A.2d 691 (Conn. 1985) Deleware: alloy v. State, 568 A.2d 1072 (Del. 1989) Pauls v. State, 554 A.2d 1125 (Del. 1989) Pitts v. State, No. 342 (Sept. 7, 1987) (Deli. 1987) Williams v. State, 539 A.2d 164 (Del. 1988) Manchester v. State, 532 A.2d 1000 (Del. 1987) DeShields v. State, 534 A.2d 630 (Del. 1987) Flamer v. State, 490 A.2d 104 (Delw. 1984) Holt vy. U.S., $65 A.2€ 156 (D. C. 1988) District of Columbia: Nelson v. U.S., 479 A.2d 340 (D. C. 1984) ’ Flordia: Jordon v. State, 562 $.2d 820 (Fla. 1990) Long v. State, 558 S.2d 1091 (Fla. 1990) King v. State, 557 S.2d 899 (Fla. 1990) State v. Nickerson, 541 S.2d 725 (Fla. 1989) Griffith v. State, 548 S.2d 244 (Fla. 1989) Vickery v. State, 539 S.2d 499 (Fla. 1989) State v. Burch and Brown, 545 S.2d 279 (Fla. 1989) |o a“ aww Kendry v. (Fla. Golden v. (Fla. Bloodworth v. State, Ww Adamo (Fla. Adams Williams Winter Hays v. State Tllinois: People People. People People People v People People People tw as) 548 N.E.2d (Fla. 1986) 7 right 14, Ga. 1986 i 19 1A 1929) 198 1987 ) 198 1986} Contracting People Vv. Gindorf, People Vv. People Vv. Hartfield, People V. Boswell, People v. People Vv. People Vv. Indiana: Moore v. Mills v. Taylor v. Beach v. Woods v. Howard v. Cunningham v. Iowa: Kansas: State v. Combs, 722 P.2d 592 (Kan. 1986) State v. Potts, 713 P.2d 967 (Kan. 1986) Moore v State, 700 P.2d 148 (Kan. 1985) Kentucky: Commonwealth of Kentucky v. Messex, 736 S.W.2d 341 Hampton v. Commonwealth, 666 S.W.2d 737 (Ky 1984) Collett v. Commonweath 686 S.W.2d 822 (Ky. 1984) Louisiana: State v. Blackburn, 481 S.2d 1322 (La. 1986) State v. Lewis, 468 S.2d 557 (La. 1985) State ex. rel, Bailey v. Maggio, 465 S.2d 726 (La State v. Wingo, 457 S.2d 1159 (La. 1984) State b. Brogdon, 457 S.2d 616 (La. 1984) State v. Welcome, 458 S.2d 1235 (La. 1984) State v. Summit, 454 S.2d 1100 (La. 1984) State v. Foley, 456 S.2d 979 (La. 1984) State v. Thomas, 447 S.2d 1053 (La. 1984) State v. Lathers, 444 S.2d 96 (La. 1983) State v. Johnson, 553 S.2d 865 (La. 1989) State v. Mallett, 552 S.2d 28 (La. 1989) ‘ State v. Volkmann, 539 S.2d 1279 (La. 1989) State v. Melancon, 536 S.2d 460 (La. 1988) State v. Polkey, 529 S.2d 474 (La. 1988) State v. Guzman, 520 S.2d 1099 (La. 1987) (Ky. 1987) jXo State v. McDaniel, 515 S.2d 572 (La. 1987) State v. Payne, 482 S.2d 178 (La. 1986) State v. Coolie, 483 S$.2d 1048 (La. 1985) State v. Hookfin, 476 S.2d 481 (La. 1985) State v. Shields, 454 S$.2d 405 (La. 1984) State v. Williams, 450 S.2d 721 (La. 1984) State v. Brown, 440 S.2d 994 (La. 1983) Maryland: Randall Book Corp. v. State, 558 A.2d 715 (Md. 1989) Minor v. State, 546 A.2d 1028 (Md. 1988) Stanley v. State, 542 A.2d 1276 (Md. 1987) State v. Davis, 530 A.2d 1223 (Md. 1987), 514 A.2d 1229 (1986) Schochet v. State, 541 A.2d 183 (Md. 1988) Wynn v. State, 518 A.2d 1072 (Md. 1987) ~ Levitt v. State, 505 A.2d 140 (Md. 1986) Teeter v. State, 499 A.2da 503 (Md. 1985) Anaweck v. State, 492 A.2d 658 (Md. 1985) Bryan v. State, 492 A.2d 644 (Md. 1984) Massachusetts: Commonwealth v. Therriault, 515 N.E.2d 1198 (Mass. 1987) Commonwealth v. Tuitt, 473 N.E.2d 1103 (Mass. 1984) Commonwealth v. Varney, 461 N.E.2d 177 (Mass. 1984) Commonwealth v. Bianco, 454 N.E.2d 901 (Mass. 1983) Commonwealth v. Diatchenko, 443 N.E.2d 894 (Mass. 1982) Commonwealth v. Dougan, 505 N.E.2d 894 (Mass. 1987) Commonwealth v. Marcus, 454 N.E.2d 1277 (Mass. 1983) Michigan: People v. Milbourn, No. 80475, People v. Moore, 439 N.W.2d 684 Mississippi: Lonnel v. State, No. 07-KA-59207 (Sept. 11, 1990) (Mich. 1990) (Mich. 1989) » (Aug. 22, 1990) (Miss. 1990) Turner v. State, No. 03-82, (Nov. 22, 1989) (Miss. 1990) Leatherwood v. State, 548 S.2d Ashley v. State, 538 S$.2d 1181 Huntley v. State, 524 §$.2d 572 Clowers v. State, 523 S$.2d 957 389 (Miss. 1989) (Miss. 1989) (Miss. 1988) (Miss. 1988) Jones v. State, 510 S.2d 794 (Miss. 1987) David aka Luckett v. State, 498 Abram v. State, 538 S$.2d 1181 S.2d 843 (Miss. 1986) (Miss. 1989) Burt v. State, 493 S.2d 1325 (Miss. 1986) Jackson v. State,, 483 S.2d 1353 (Miss. 1986) Jenkins v. State,, 483 S.2d 1330 (Miss. 1986) Presley v. State,, 474 $S.2d 612 (Miss. 1985) Seely v. State,, 451 S.2d 213 (Miss. 1984) King v. State, , 451 S.2d 765 (Miss. 1984) Missouri: State Vv. Storment, 791 N.W.2d 955 (Mo. 1990) State Vv. Johnson, 770 N.W.2d 263 (Mo. 1989) State Schwer, 757 N.W.2d 258 (Mo. 1988) State Wallace, 745 N.W.24 233 (Mo. 1987) Grady State, 743 N.W.2d 535 (Mo. 1987) State Taylor, 735 N.W.2d 412 (Mo. 1987) State Vv. Carlton, 733 N.W.2d 23 (Mo. 1987) State Vv. Koonce, 73 N.W.2d 431 (Mo. 1985) Deaton v. State, 705 N.W.2d 70 (Mo. 1986) State Vv. Freeman aka Washington, 702 N.W.2d 869 State Vv. Hurt, 668 N.W.2d 206 (Mo. 1984) State Rider, 664 N.W.2d 617 (Mo. 1984) State Bailey, 659 N.W.2d 559 (Mo. 1983) Watson, 686 P.2d 879 (Mont. 1984) Nebraska: State Vv. Sianouthai, 402 N.W.2d 316 (Neb. 1987) State Vv. Michalski, 377 N.W.2d 510 (Neb. 1985) State Loschen, 376 N.W.2d 792 (Neb. 1985) State Stratton, 374 N.W.2d 31 (Neb. 1985) State Brand, 363 N.W.2d 516 (Neb. 1985) State Ruzicka, 357 N.W.2d 457 (Neb. 1984) (Mo. 1986) Nevada: Noavarath v. State, 779 P.2d 944 (Nev. 1989) Houk v. State, 474 P.2d 1376 (Nev. 1987) State v. The 8th Judicial Dist. ct. of Nevada, Ciark County et al., 677 P.2d 1044 (Nev. 1984) New Hampshire: State v. Pliskaner, 517 A.2da 79% N.H Re State v. Dayutis, 498 A.id 325 N oH 19Rc State v. Etzweiller, 48 A.2da 87 N.H l State v. Elbert, 480 A 1 854 (N.H 1984 State v. Sweeney, 469 A.2da 13: moms. J New Jersey: State v. Dunbar, 527 A.2d ae N.J. 198 State v. Pratt, 544 A i 39 N.J BR State v Johnson S502 A 4 149 N.J 1985 State v. Yar igh_ and Smith ak Yarbough } A 1 4 (N.J 1984) State v. New Jersey Waste Assn 465 A.2d 59¢ N.J 192 New Mexico: State v. Escamilla, 760 P.2d 1276 (N.M 1988 State v. Cheadle, 681 P.2d 708 (N.M 198 State v. Case 711 P.2d 19 (N.M 1985 State v. Harris, 677 P.2d 625 (N.M. 1984) State v. McCall, 686 P.2d 958 (N.M. 1983) State v. Burdex, 668 P.2d 313 (N.M 1983) State v. Brabham, 481 N.Y.S.2d 111 (N.Y 1984 13 North Carolina: State v. State v. Ww Oklahoma: Maxwell A a‘ ct @ 0 ms N > ui rs) a s 4 Oregan: State v. Broadsword, 672 P.2d 366 (Ore. 1983) Pennsylvania: Commonwealth v. Fuller, No. 300 Harrisberg (July 27, 1990) (Pa. $1990) Commonwealth v. Middleton, 467 A.2d 841 (Pa. 1986) State v. Ouimette, 479 A.2d 702 (Pa. 1984) South Carolina: State v. Kiser, 343 S.E.2d 292 (N.C. 1986) State v. Perkins, 444 N.W.2d 34 (S.D. 1984) South Dakota: State v. Groethe, 439 N.W.2d 554 (S.D. 1989) State v. Dale, 439 N.W.2d 98 (S.D. 1989) State v. Brown, 435 N.W.2d 225 (S.D. 1989) In the Matter of T.J.E. Alleged Delinquent Child, 426 N.W.2d 23 (S.D. State v. 1988) Myers, 411 N.W.2d 402 (S.D. 1987) State v. O’Connor, 408 N.W.2d 754 (S.D. 1987) State v. Swallow, 405 N.W.2d 29 (S.D. 1987) State v. Macy, 403 N.W.2d 743 (S.D. 1987) State v. Bonrud, 393 N.W.2d 785 (S.D. 1986) State v. Andrews, 393 N.W.2d 76 (S.D. 1986) State v. Sheridan, 383 N.W.2d 865 (S.D. 1986) Holiday v. Solem, 383 N.W.2d 871 (S.D. 1986) State v. O‘Connor, 378 N.W.2d 248 (S.D. 1985) onpeaniinas meat State v. Rederth, 376 N.W.2d 579 (S.D. 1985) State v. Janssen, 371 N.W.2d 353 (S.D. 1985) State v. Graycek, 368 N.W.2d 815 (S.D. 1985) State v. Weiker, 366 N.W.2d 823 (S.D. 1984) State v. Big Head, 363 N.W.2d 556 (S.D. 1984) State v. Cofield, 351 N.W.2d 467 (3.D. 1984) State v. Lohnes, 344 N.W.2d 686 (S.D. 1984) State v. Williamson, 342 N.W.2d 15 (S.D. 1983) State v. Weiker, 342 N.W.2d 7 (S.d. 1983) Tennessee: State v. Busler, 704 S.W.2d 310 (Tenn. 1986) State v. Evitts, Nc 89-131-III, (July 8, 1990)(Tenn. 1990) State v. Kilby, alias, 763 S.W.2d 389 (Tenn. 1988) State v. Baker, et al., 751 S.W.2d 154 (Tenn. 1987) Givens v. State, 702 S.W.2d 578 (Tenn. 1985) State v. Jackson, 697 S.W.2d 366 (Tenn. 1985) Texas: State v. Summers and Tick Enterprises, Inc., 692 S.W.2d 439 (Tenn. 1985) State v. Badgett, 693 S.W.2d 917 (Tenn. 1985) State v. Wilson, 687 S.W.2d 720 (Tenn. 1984) State v. Flynn, 675 S.W.2d 494 (Tenn. 1984) State v. Hall, 667 S.W.2d 507 (Tenn. 1983) State v. Freeman, 669 S.W.2d 688 (Tenn. 1983) State v. Cole, 665 S.W.2d 407 (Tenn. 1983) State v. Duffel, 665 S..2d 402 (Tenn. 1983) Washington v. State, Childress v. (Texas 1990) 677 S.W.2d 524 State, No. (Tex. 1984) 01-87-00183-CR (July 12, 1990) Quintana v. State, 777 S.W.2d 474 (Tex. 1989) Townsend v. State, 725 S.W.2d 463 (Tex. 1987) Hypke v. State, 720 S.W.2d 158 (Tex. 1986) Simpson v. State, 668 S.W.2d 915 (Tex. 1984) Utah: State v. Cude, 784 P.2d 1197 (Utah 1989) State v. Bell, 754 P.2d 55 (Utah 1988) State v. Bishop, 717 P.2d 261 (Utah 1985) State v. Howell, 707 P.2d 115 (Utah 1985) State v. Saunders, 699 P.2d 738 (Utah 1985) _ State v. Amicone, 689 P.2d 1341 (Utah 1984) State v. Kinsey, No. 890296-CA. (July 13, 1990) (Utah 1990) Vermont: State v. Saari, 586 A.2d 344 (Vt. 1989) State v. Venman, 564 A.2d 574 (Vt. 1989) Washington: State v. Fladebo, 779 P.2d 707 (Wash. 1989) State v. Creekmore, 783 P.2d 1068 (Wash. 1989) State v. Heggins, 779 P.2d 285 (Wash. 1989) State v. Bowen, 751 P.2d 1226 (Wash. 1988) 17 4 West Virginia: State ex rel Bosso v. Hedrick, 391 S.E.2d 614 (Va. 1990) State v. Woodall, 385 S.E.2d 253 (W. Va. 1989) State v. Oxier, 369 S.B.2d 866 (W. Va. 1988) State v. Deal, 358 S.E.2d 226 (W. Va. 1987) Wisconsin: State v. Schmitt dba Carl Schmitt Sanitary Landfill, 429 N.W.2d 518 (Wisc. 1988) State v. Coley, 409 N.W.2d 669 (Wisc. 1987) Wyoming: Schuler v. Wyoming, 771 P.2d 1217 (Wyo. 1989) Smallwood v. State, 771 P.2d 798 (Wyo. 1989) Kavanaugh v. State, 7359 P.2d 908 (Wyo. 1989) Sanchez v. State, 755 P.2d 245 (Wyo 1988) Whiteny v. State, 745 P.2d 902 (Wyo. 1987) Pote v. State, 733 P.2d 1018 (Wyo. 1987) Christy v. State, 731 P.2d 1204 (Wyo. 1987) Yates v. State, 723 P.2d 37 (Wyo. 1986) Shepard v. State, 720 P.2d 37 (Wyo. 1986) Martin v. State, 720 P.2d 894 (Wyo. 1986) Oakley v. State, 715 P.2d 1374 (Wyo. 1986) Bell v. State, 693 P.2d 769 (Wyo. 1985) Engberg v. State, 686 P.2d 541 (Wyo. 1984) APPENDIX " E " FEDERAL cAS SE S Clemons v. State, 108 L.Ed.2d 725 (Miss. 1990) Penry v. Lynaugh, 106 L.E.2d 256 (Tex. 1989)_ 832 F.2d 915 (Sth Cir. 1987) Stanford v. State, 106 L.E.2d 306 (Ky. 1989) Browning-Ferris Ind. of Vermont, Inc. v. Kelco Disposal, Inc., 106 L.E.2d 219 (Vt. (1989) McClenskey v. Kemp, 95 L.Ed.2d 262 (Ga. 1987) Tison v. State, 95 L.Ed.2d 127 (Ariz. 1987) Ford v. Wainwright, 91 L.Ed.2d 335 (Fla. 1986) 752 F.2d 526 (1ith Cir. 1985) Cabana v. Bullock, 88 L.Ed.2d 704 (Miss. 1986) DeGarmo v. State, 88 L.Ed.2d 322 (Tex. 1985) State v. Garner, 85 L.Ed.2d 1 (Tenn. 1985) Moran v. State, 83 L.Ed.2d 285 (Ohio 1984) Berkemer v. McCarty, 82 L.Ed.2d 317 (Ohio 1984) Spaziano v. State, 82 L.Ed.2d 340 (Fla. 1984) Pulley v. Harris, 79 L.Ed.2d 29 (1984) Pennhurst State School and Hospital v. Halderman, 79 L.Ed.2d 67 (1983) State v. Ramos, 77 L.Ed.2d 1171 (Ca. 1983) U.S. v. Alvarez, No. 89-2670, (Sept. 27, 1990) U.S. v. Mendes, No. 89-4070, (Aug. 28, 1990) (10th Cir. 1990) U.S. v. 141 St. Corp., 911 F.2d 870 (2nd. Cir. 1990) U.S. v. Wilkins, 911 F.2d 337 (9th Cir. 1990) King v. Armstrong World Ind., Inc., 906 F.2d 1022 (1990) U.S. v. Avant, 907 F.2d 623 (6th Cir. 1990) U.S. v. Freeman, 907 F.2d 153 (7th Cir. 1990) U.S. _v. Wayne, 905 F.2d 54 (4th Cir. 1989) U.S. v. Harris, 903 F.2d 770 (10th Cir. 1990) U.S. v. Owens, 902 F.2d 1154 (4th Cir. 1990) U.S. _v. Pryba, 900 F.2d 748 (4th Cir. 1990) U.S. v. Winfrey, 900 F.2d 1225 (8th cir. i990) U.S. v. Hughes, 901 F.2d 830 (10th Cir. 1990) U.S. v. Thomas, 900 F.2d 37 (4th Cir. 1990) U.S. v. Torres, et al., 301 F.2d 203 (2nd Cir. 1990) U.S. v. Guinan, 902 F.2d 37 (7th Cir. 1990) U.S. v. Newsome, 898 F.2d 199 (10th Cir. 1990) U.S. v. Razsi, 897 F.2d 530 (6th cir. 1990) U.S. v. Sullivan, 895 F.2d 373 (10th Cir. 1990) U.S. v. Colbert, 894 F.2d 373 (10th cir. 1990) U.S. v. Goot, 894 F.2d 231 (7th Cir. 1989) U.S. v. Larouche, 896 F.2d 815 (4th Cir. 1990) U.S. v. Buckner, 894 F.2d 975 (8th cir. 1989) U.S. v. Whyte, etc., 892 F.2d 1170 (3rd Cir. 1989) U.S. v. Rivalta, 892 F.2d 223 (2nd Cir. 1989) U.S. v. Denardi, et al., 892 F.2d 269 (3rd Cir. 1989) U.S. v. Cyrus, aka Barlow, 890 F.2d 1245 (D.C. 1989) U.S. v. Benefield, 889 F.2d 1061 (llth Cir. 1989) U.S. v. Collins, 890 F.2d 417 (6th Cir. 1989) U.S. v. Francois, 889 F.2d 1341 (4th cir. 1989) U.S. v. George, 891 F.2d 140 (7th Cir. i989) U.S. v. Tanner, 888 F.2d 1392 (6th Cir. 1989) U.S. v. Atlantic Disposal Svc., Inc., 887? F.2d 1208 (3rd. Cir. 1989) Sutton v. State, 886 F.2d 708 (4th Cir. 1989) U.S. v. Elkins, 885 F.2d 775 (11th Cir. 1989) U.S. v. Bernal, 884 F.2d 1518 (list Cir. 1989) U.S. v. Harvey, 885 F.2d 181 (4th cir. 1989) U.S. v. Glantz and Bucci, 884 F.2d 160 (5th Cir. 1989) Edwards v. Butler, 882 F.2d 160 (5th Cir. 1989) U.S. v. Williams, 884 F.2d 581 (6th Cir. 1989) —_> Young v. Miller, 883 F.2d 1276 (6th Cir. 1989) Slusarski v. Quarles, 880 F.2d 1322 (6th Cir. 1989) U.S. v. Berryhill, 880 F.2d 275 (10th cir. 1989) U.S. v. Linn aka Long, 880 F.2d 209 (10th Cir. 1989) U.S. v. Predigo, 879 F.2d 1315 (6th Cir. 1988) U.S. v. Parker, 877 F.2d 327 (5th Cir. 1989) Blandford v. Sowders, 878 F.2d 381 (6th Cir. 1989) U.S. v. Ofchinick , 877 F.2d 251 (3rd Cir. 1989) U.S. v. Dombrowski, 877 F.2d 520 ‘(7th Cir. 1989) U.S. v. DeGuzman and Hoyos, 875 F.2d 868 (6th Cir. 1989) U.S. v. Williams, 875 F.2d 868 (6th Cir. 1989) Black v. Livesay, 872 F.2d 1024 (6th Cir. 1989) U.S. v. Berryhill, 872 F.2d 949 (19th Cir. 1989) U.S. De Rosas, 873 F.2d 1177 (9th Cir. 1989) Cocio v. Bramlett, 872 F.2d 889 (9th Cir. 1989) U.S. v. Cannistraro, 871 F.2d 1210 (3rd Cir. 1989) Robtoy v. Kincheloe, 871 F.2d 1478 (9th Cir. 1989) U.S. v. Hoyt, 879 F.2d 505 (9th Cir. 1988) U.S. v. Kidder, 869 F.2d 1328 (9th Cir. 1988) ———EeEeEeEeEeEeEeEeEeEeEeEeEeEeEGueOoeeeee | U.S. v. Monroe, 866 F.2d 1357 (1ith Cir. 1989) Alford v. Rolfs, 867 F.2d 1216 (9th cir. 1989) U.S. v. Salerno, et al., 868 F.2d 524 (2nd Cir. 1987) Sutton v. State of Maryland, 865 F.2d 608 (4th Cir. 1989) U.S. v. Foutz, 865 F.2d 617 (4th Cir. 1989) U.S. v. Porcelli, 865 F.2d 1352 (2nd cir. 1989) U.S. v. Martorano aka Cowboy George, 866 F.2d 62 (3rd Cir. 1988) U.S. v. Aiello, 864 F.2d 257 (2nd Cir. 1988) U.S. v. Johnson, 861 F.2d 1290 (D.C. 1988) U.S. v. 300 Cove Rd., Ashland, Oregon, 861 F.2d (9th Cir. 1988) U.S. v. Frank, aka Roy, 864 F.2d 992 (3rd cir. 1988) U.S. v. Klein, 860 F.2d 1489 (9th Cir. 1988) U.S. v. Brown, 859 F.2d 974 (D.C. 1988) U.S. v. Cook, 859 F.2d 777 (9th Cir. 1988) Stotts v. Jones, 858 F.2d 289 {6th Cir. 1988) U.S. v. Whitworth, 856 F.2d 1268 (9th Cir. 1988) U.S. v. Persico, 853 F.2d 134 (2nd Cir. 1988) Adams v. Dugger, 850 F.2d 1495 (1lith Cir. 1988) U.S. v. Feldman, 853 F.2d 648 (9th cir. 1988) U.S. v. Yarbrough, et al, 852 F.2 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0985%3A2. Public record. Not legal advice.