Petition for Writ of Certiorari — Arizona v. Bartlett

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

STATE OF ARIZONA,

PETITIONER.

JOSEPH BARTLETT, JR.,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

ARIZONA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

GRANT WOODS

ATTORNEY GENERAL OF

THE STATE OF ARIZONA

PAUL J. McMURDIE

CHIEF COUNSEL

(COUNSEL OF RECORD)

LINDA L. KNOWLES

ASSISTANT ATTORNEY GENERAI

CRIMINAL APPEALS SECTION

DEPARTMENT OF LAW

1275 W. WASHINGTON

PHOENIX, ARIZONA 85007-2997

TELEPHONE: (602) 542-4686

ATTORNEYS FOR PETITIONER

QUESTIONS PRESENTED

1. Because federal and state courts conflict greatly in deciding

how to analyze the frequently raised claim in noncapital cases that

a sentence violates the Eighth Amendment, leading to erratic

results and inconsistent application of the Constitution, should this

Court clarify the holding and application of Harmelin v. Michigan

and address the continued viability of Solem v. Helm?

2. Did the Arizona Supreme Court err as a matter of federal

constitutional law in holding that Harmelin requires examination of

the facts and circumstances underlying the offense and the offender,

rather than only the threat posed to society by the type of conduct

at issue, in evaluating whether a sentence is_ grossly

disproportionate in violation of the Eighth Amendment?

TABLE OF CONTENTS

PAGE

_QUESTIONS PRESENTED

TABLE OF AUTHORITIES iv

OPINIONS BELOW

STATEMENT OF JURISDICTION 2

CONSTITUTIONAL PROVISIONS INVOLVED 2

STATUTORY PROVISIONS INVOLVED 3

STATEMENT OF THE CASE 4

ARGUMENTS

I

THIS COURT SHOULD REVISIT HARMELIN TO

PROVIDE CLEAR GUIDANCE TO THE LOWER

COURTS, WHICH CONFLICT REGARDING WHAT

ANALYSIS TO APPLY IN EVALUATING

NONCAPITAL DEFENDANT’S OFT RAISED

CHALLENGES TO THE CONSTITUTIONALITY OF

THEIR SENTENCES OF IMPRISONMENT. 7

A. FEDERAL AND STATE COURTS ARE

INUNDATED WITH NONCAPITAL CASES

CHALLENGING THE CONSTITUTIONALITY OF

THE TERMS OF IMPRISONMENT IMPOSED. 6

B. COURTS ARE UNSURE OF THE CONTINUED

VIABILITY OF THE ANALYSIS SET FORTH IN

SOLEM. 8

E. THOSE COURTS APPLYING HARMELIN’S

THRESHOLD COMPARISON ' CONFLICT

REGARDING WHETHER THE SPECIFIC FACTS

AND CIRCUMSTANCES OF THE CRIME MUST

BE EXAMINED. 1]

D. THE COUNTRY NEEDS THIS COURT’S

GUIDANCE TO RESOLVE THESE

CONFLICTS. 13

I]

THE ARIZONA SUPREME COURT ERRED AS A

MATTER OF FEDERAL CONSTITUTIONAL LAW IN

INTERPRETING HARMELIN TO REQUIRE

EXAMINATION OF THE SPECIFIC FACTS AND

CIRCUMSTANCES UNDERLYING BARTLETT’S

CRIME IN DETERMINING IF THEY WERE

GROSSLY DISPROPORTIONATE TO THE

SENTENCES IMPOSED. 14

CONCLUSION 17

APPENDIX A A-1

APPENDIX B B-1

APPENDIX C C-1

APPENDIX D D-1

APPENDIX E E-1

APPENDIX F F-]

APPENDIX G G-1

ill

TABLE OF AUTHORITIES

CASES

Arizona v. Bartlett

pee, * See

111 S. Ct. 2880 (1991)

Bradford v. Whitle

953 F.2d 1008 (Sth Cir. 1992)

Harmelin v. Michigan

oe,

111 S. Ct. 2680 (1991)

McCullough v. Singletary

967 F.2d 530 (11th Cir. 1992)

McGruder v. Puckett

954 F.2d 313 (Sth Cir. 1992)

People v. Bullock

485 N.W.2d 866 (Mich. 1992)

People v. Gaskins

825 P.2d 30 (Colo. 1992)

Rummel v. Estelle

445 U.S. 263 (1980)

Solem v. Helm

463 U.S. 277 (1983)

State v. Bartlett

792 P.2d 692 (Ariz. 1990)

State v. Bartlett

830 P.2d 823 (Ariz. 1992)

State v. Borrell

482 N.W.2d 883 (Wis. 1992)

State v. Isom

408 S.E.2d 701 (Ga. 1991)

Tart v. Massachusetts

949 F.2d 490 (ist Cir. 1991)

United States v. 38 Whalers Cove Drive

954 F.2d 29 (2d Cir. 1992)

PAGE

United States v. Abreu

962 F.2d 1425 (10th Cir. 1992)

United States v. Contreras

937 F.2d 1191 (7th Cir. 1991)

United States v. Gordon

953 F.2d 106 (8th Cir. 1992)

United States v. Harvey

946 F.2d 1375 (8th Cir. 1991)

United States v. Hopper

941 F.2d 419 (6th Cir. 1991)

United States v. Johnson

944 F.2d 396 (8th Cir. 1991)

United States v. Jones

965 F.2d 1507 (8th Cir. 1992)

United States v. Lemons

941 F.2d 309 (Sth Cir. 1991)

United States v. Manuel

944 F.2d 414 (8th Cir. 1991)

United States v. McLean

951 F.2d 1300 (D.C. Cir. 1991)

United States v. O’Banion

943 F.2d 1422 (Sth Cir. 1991)

United States v. Pavlico

961 F.2d 440 (4th Cir. 1992)

United States v. Salmon

944 F.2d 1106 (3d Cir. 1991)

United States v. Torres

941 F.2d 124 (2d Cir. 1991)

United States v. Van Winrow

951 F.2d 1069 (9th Cir. 1991)

United States v. Vasquez

966 F.2d 254 (7th Cir. 1992)

1]

11

10

AUTHORITIES

Arizona Revised Statutes Annotated

§ 13-1405

13-604(H)

13-604.01

13-604.01(A)

13-604.01(D)

13-604.01(E)

13-604.01(J)

13-694.01(K)(2)

44)

§

8

§

§

§

§

United States Constitution

Eighth Amendment

Fourteenth Amendment

rh

Passim

OPINIONS BELOW

In 1988, the Arizona Court of Appeals affirmed Joseph

Bartlett Jr.’s (Bartlett’s) mandatory sentences of 40 years without

parole for two counts of sexual conduct with a minor under

15 years of age. State v. Bartlett, 2 CA-CR 88-0024, memo. dec.

(Ariz. Ct. App., Nov. 10, 1988), attached as Appendix B.

The Arizona Supreme Court granted review and vacated

Bartlett's sentences, applying Solem v. Helm, 463 U.S. 277 (1983),

in finding them in violation of the Eighth Amendment. State v.

Bartlett, (Bartlett I], 792 P.2d 692 (Ariz. 1990), attached as

Appendix C. The court denied the State’s motion for

reconsideration. (Order, dated June 19, 1990, Appendix D.)

This Court accepted the State’s petition for writ of certiorari,

vacated Bartlett 1, and remanded the case to the Arizona Supreme

Court for further consideration in light of Harmelin v. Michigan,

___ U.S. ___, 111 S. Ct. 2680 (1991). Arizona v. Bartlett, uz

U.S. _, 111 §. Ct. 2880 (1991), attached as Appendix E.

On remand, the Arizona Supreme Court again found Bartlett’s

sentences in violation of the Eighth Amendment. Stare v. Bartlett,

[Bartlett II}, 830 P.2d 823 (Ariz. 1992), attached as Appendix A.

The court denied the State’s motion for reconsideration. (Order,

dated June 17, 1992, Appendix F.)

STATEMENT OF JURISDICTION

The State of Arizona seeks review of the Arizona Supreme

Court’s decision in Bartlett II, filed on May 8, 1992.

(Appendix A.) The State filed a timely motion for reconsideration

on May 14, 1992, which the Arizona Supreme Court denied by

order dated June 17, 1992. (Appendix F.) This present petition for

writ of certiorari was filed on September 14, 1992, within 90 days

of the Arizona Supreme Court’s order denying the State’s motion

for reconsideration.

This Court has jurisdiction to review the opinion of the

Arizona Supreme Court pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The pertinent part of the Eighth Amendment to the United

States Constitution provides:

[Njor cruel and unusual punishment inflicted.

The pertinent part of the Fourteenth Amendment to the United

States Constitution provides:

[N]o state shali make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of

life, liberty, or property, without due process of law

i]

STATUTORY PROVISIONS INVOLVED

In 1986, at the time of Bartlett’s offenses,’ the sexual conduct

with a minor statute, A.R.S. § 13-1405, provided:

A. A person commits sexual conduct with a

minor by intentionally or knowingly

engaging in sexual intercourse or oral

sexual contact with any person who is

under eighteen years of age.

B. Sexual conduct with a minor under fifteen years of age

is a class 2 felony and is punishable pursuant to

§ 13-604.0]. Sexual conduct with a minor fifteen

years of age or over is a class 6 felony.

(Emphasis added. )

The dangerous crimes against children statute, A.R.S.

§ 13-604.01, is attached to this petition as Appendix G.

1. In 1990, the legislature amended this statute, lowering to 14 the

age at which sexual conduct with a minor becomes a class 2 felony

subject to the provisions of A.R.S. § 13-604.01.

3

STATEMENT OF THE CASE

During the fall of 1986, Bartlett, a 23 year old man, engaged

in sexual intercourse with two ninth grade girls whom he had met

during his daily sojourns at a fast food restaurant across from a

high school. Bartlett knew both girls were only 14 years old.

On January 23, 1987, the Cochise County Grand Jury indicted

Bartlett on three counts of sexual conduct with a minor involving

the two 14-year-old girls and a third girl, who was 15 years old.

The State of Arizona moved to invoke the repeat offender enhanced

punishment provisions of A.R.S. § 13-604(H).

The jurors returned verdicts of guilty on the two counts of

sexual conduct with a minor involving the 14-year-old girls, and

not guilty on the third count involving the 15-year-old girl. The

trial court entered judgments of guilt and imposed the minimum

mandatory sentence—15 years for the first count and 25 years for

the second, to be served consecutively and with no possibility of

early release.’

Bartlett appealed to the Arizona Court of Appeals, arguing

that the long mandatory sentences imposed on him were cruel and

unusual and violated the Eighth Amendment. (Appendix B at 2-3.)

The Arizona Court of Appeals rejected Bartlett’s arguments and

2. Each offense was a class 2 felony and dangerous cnme against

children pursuant to A.R.S. §§ 13-1405 and 13-604.01. For the first

offense, the statutes provided a mandatory sentencing range of between

15 and 25 years. A.R.S. § 13--604.01(A), (D). The first offense served

as a “predicate felony” and enhanced the sentencing range for the second

offense to between 25 and 35 years. A.R.S. § 13-604.01(A), (D),

(K)(2). The statutes required that the sentences be served consecutively,

with no possibility of early release. A.R.S. § 13-604.01(E), (J).

4

affirmed the sentences. (/d.)

The Arizona Supreme Court accepted Bartlett’s petition for

review to consider “the constitutional issue whether defendant’s

sentences are unconstitutionally cruel and unusual under the

particuiar facts of this case.” (Bartlett 1, Appendix C at 14.)

Engaging in an extended analysis of the facts of this case and other

sentences imposed in Arizona and across the nation, the Arizona

Supreme Court concluded:

[W]e hold that the sentences imposed are disproportionate

to defendant’s crimes under the analysis required by

Solem v. Helm, and thus were unconstitutionally

imposed.

(Bartlett i, citations omitted, Appendix C at 3.) The Arizona

Supreme Court did not address whether Bartlett’s sentences

violated the Arizona Constitution. (Bartlett 1, Appendix C at 55.)

Acknowledging that Bartlett received the minimum sentence

allowed by law and noting that there was no more lenient sentence

to which Bartlett could be sentenced under the provisions of

A.R.S. § 13-604.01, the Arizona Supreme Court nevertheless

severed the concededly constitutional provision requiring manda-

tory sentencing from the substantive provisions of A.R.S.

§ 13-1405 and remanded the case for resentencing without the

enhanced penalties required by the legislature for dangerous crimes

committed against children, classifying Bartlett as a class 2 felon.

(Bartlett 1, Appendix C at 58-61.)

Pursuant to the Arizona Supreme Court’s order of remand, the

trial court resentenced Bartlett while a petition for writ of certiorari

was pending on Bartlett ]. Bartlett, now designated a class 2 felon,

received concurrent terms of 5-1/4 years on the first count and

7 years on the second count. (Bartlett I], Appendix A at 4-5.)

Because the Arizona Supreme Court had struck the dangerous

crimes against children designation of the offenses, Bartlett would

have become eligible for parole in 4 years and 8 months, and

would have served no more than 7 years. (/d. at 5.)

This Court soon invalidated Bartlett's new sentences by

granting the State’s petition for writ of certiorari, vacating the

Arizona Supreme Court’s judgment, and remanding the matter to

the Arizona Supreme Court for consideration in light cf Harmelin

v. Michigan. (Arizona v. Bartlett, Appendix D.)

On remand, the Arizona Supreme Court again vacated

Bartlett’s original 40-year sentence as violative of the Eighth

Amendment. (Bartlett IJ, Appendix A at 28.) The majority then

reinstated the 5-1/4-year and 7-year concurrent sentences imposed

by the trial court during the pendency of the petition for writ of

certiorari on Bartlett J. (Id. at 28-29.) The author of Bartlett ] and

another justice dissented, concluding that the majority simply

reapplied Solem rather than following this Court’s order to

reconsider Bartlett’s sentences in light of Harmelin. (Id. at 30, 52.)

ARGUMENTS

I

THIS COURT SHOULD REVISIT HARMELIN TO

PROVIDE CLEAR GUIDANCE TO THE LOWER

COURTS, WHICH CONFLICT REGARDING WHAT

ANALYSIS TO APPLY IN EVALUATING

NONCAPITAL DEFENDANT’S OFT RAISED

CHALLENGES TO THE CONSTITUTIONALITY OF

THEIR SENTENCES OF IMPRISONMENT.

A. FEDERAL AND STATE COURTS’ ARE

INUNDATED WITH NONCAPITAL CASES

CHALLENGING THE CONSTITUTIONALITY OF

THE TERMS OF IMPRISONMENT IMPOSED.

Dissenting in Solem v. Helm, Chief Justice Burger expressed

his fear that the case would “flood the appellate courts with cases

in which equally arbitrary lines must be drawn,” and “‘administer

the coup de grace to the courts of appeals as we know them.’”

Solem v. Helm, 436 U.S. at 315 (Burger, C.J., dissenting) (quoting

H. FRIENDLY, FEDERAL JURISDICTION: A GENERAL VIEW 36

(1973)). These fears have beei. borne out.

In the period between Rummel v. Estelle, 445 U.S. 263

(1980), and Solem v. Helm, an average of 50 cases a year were

reported citing Rummel and either the Eighth Amendment or the

phrase “cruel and unusual.” After Solem, the number of cases

almost doubled—an average of 95 cases per year were reported

citing Solem and the Eighth Amendment or the phrase “cruel and

unusual.” It is unknown how many hundreds of cases addressing

the issue were disposed of in unpublished decisions.

Harmelin has done absolutely nothing to dam the river

released by Solem. In the short time since this Court’s pronounce-

ment of Harmelin, 120 reported decisions have cited Harmelin and

referred to the Eighth Amendment or the phrase “cruel and

unusual.” This is a pace of approximately 100 reported cases per

year.

Defendants in noncapital cases are consistently and frequently

challenging their sentences of imprisonment. Thus, the courts are

regularly faced with the quandry of trying to determine and apply

the proper analysis to evaluate these challenges, in light of the

confusion that has followed Harmelin.

B. COURTS ARE UNSURE OF THE CONTINUED

VIABILITY OF THE ANALYSIS SET FORTH IN

SOLEM.

One of the factors contributing to the flood of Eighth

Amendment litigation is the uncertainty regarding the effect

Harmelin had on the analysis previously set forth by this Court in

Solem. This uncertainty is evidenced by the statements made by

both federal circuit and state supreme courts across the country

regarding the relationship between Solem and Harmelin. See, e.g.,

United States v. Johnson, 944 F.2d 396, 408 (8th Cir.), cert.

denied, 112 S. Ct. 646 (1991) (“The effect of Harmelin on the

Solem proportionality factors is not entirely clear.”); People v

Gaskins, 825 P.2d 30, 34 n.10 (Colo.), cert. denied, No

(June 22, 1992) (“The United States Supreme Court’s recent

decision in Harmelin . . . leaves the future of Solem somewhat

clouded.”); People v. Bullock, 485 N.W.2d 866, 873 (Mich. 1992)

(“It is unclear, in the wake of Harmelin, whether Solem's

analysis survives as a matter of federal constitutional law.”); Stare

v. Borrell. 482 N.W.2d 883. 893 (Wis. 1992) (Harmelin “casts

BEST AVAILABLE COPY

serious doubt on the viability of the proportionality analysis [of

Solem] m non-death penalty cases.”).

The widespread questions regarding the effect of Harmelin on

Solem tas spawned direct conflicts in the courts. In the federal

System, some courts continue to apply the three-prong analysis set

forth in Solem. See, e.g., United States v. 38 Whalers Cove Drive,

954 F.2d 29, 38-39 (2d Cir.), petition for cert. filed, No. 91-1682

(Apr. 20, 1992) (listing and applying Solem three-prong analysis

in detemmining if sentence grossly disproportionate); Tart v.

Massackmasetts, 949 F.2d 490, 503-04 (Ist Cir. 1991) (finding that

Solem remains “controlling precedent,” and relegating Harmelin to

a footmote); United States v. Contreras, 937 F.2d 1191, 1195-96

(7th Cw. 1991) (“The eighth amendment proportionality guaranty

explicated in Solem remains viable.”); United States v. Manuel,

944 F.2d 414, 417 (8th Cir. 1991) (finding Solem’s holding is still

controling).

In contrast, some federal courts apply Solem only in limited

circumstances or in a limited form. See, e.g., McGruder v.

Pucken, 954 F.2d 313, 315-16 (Sth Cir.), petition for cert. filed,

No. 94-8571 (May 22, 1992) (Solem’s three-part analysis is

available as a tool to be used only in the rare cases where a

compartson of the crime committed and the sentence imposed leads

to an mference of gross disproportionality); McCullough v.

Singletary, 967 F.3d 530, 535 (11th Cir. 1992) (declining to apply

“other” Solem factors after determining sentence not grossly

disproportionate); United States v. Johnson, 944 F.2d at 408-09

(Harmelin “substantially refined the application of the Solem

factors. ~).

Still other federal courts make little mention of Solem. See,

e.g., United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991)

(applying the “narrow proportionality principle” set forth by

Justice Kennedy in Harmelin); United States v. McLean, 951 F.2d

1300, 1302 (D.C. Cir. 1991), cert. denied, 112 S. Ct. 1775 (1992)

(citing Rummel and Kennedy’s concurrence in Harmelin). One

Seventh Circuit court avoided the issue entirely by imposing its

Own creative analysis. United States v. Vasquez, 966 F.2d 254,

261 (7th Cir. 1992) (declining to engage in a Solem type analysis,

reasoning that a sentence within legislatively prescribed limits will

only be disproportionate if the sentencing judge has abused his

discretion).

Conflicts exist internally within single circuits as well as

between different circuits. For example, one Fifth Circuit decision

states that Solem must be viewed in light of Harmelin and used

only in rare cases when there has been a threshold showing of

gross disproportionality. McGruder v. Puckett, 954 F.2d at

315-16. Another simply states that Solem was “replaced” by

Harmelin. Bradford v. Whitley, 953 F.2d 1008, 10i2 (Sth Cir.),

petition for cert. filed, No. 91-2035 (June 22, 1992). In contrast,

two other decisions in the circuit apply the three-prong analysis set

forth in Solem, with little discussion of Harmelir.. United States v.

O’Banion, 943 F.2d 1422, 1432-33 (Sth Cir. 1991); United States

v. Lemons, 941 F.2d 309, 320 (Sth Cir. 1991).

State supreme courts are similarly in conflict with the federal

courts and each other. Both Arizona and Wisconsin purport to

apply the threshold comparison test set forth by Justice Kennedy

10

in Harmelin. (Bartlett I], Appendix A at 11); State v. Borrell.

482 N.W.2d at 893-94. Colorado adheres to the three-prong

analysis set forth in Solem “[i]n the absence of more definitive

guidance from the United States Supreme Court.” People v.

Gaskins, 825 P.2d at 33-34 and n.10. The Georgia Supreme Court

has relied on Harmelin and Rummel rather than addressing Solem.

State v. Isom, 408 S.E.2d 701, 702-03 (Ga. 1991).

Many courts, unwilling to enter the churning waters before

them, emgage in little analysis, cursorily concluding that, if

Harmelin’s sentence was constitutional, so is the one received by

the defendant before them. See, e.g., United States v. Jones,

965 F.2d 1507, 1518 (8th Cir. 1992); United States v. Gordon,

953 F.2d 106, 107 (8th Cir.), petition for cert. filed, No. 91-8726

(June 19, 1992); United Siates v. Abreu, 962 F.2d 1425, 1429

(10th Cir. 1992); United States v. Harvey, 946 F.2d 1375, 1378

(8th Cir. 1991); United States v. Salmon, 944 F.2d 1106, 1130-31

(3d Cir. 1991), cert. denied, 112 S. Ct. 1213 (1992); United States

v. Torres, 941 F.2d 124, 127 (2d Cir. 1991); United States v. Van

Winrow, 951 F.2d 1069, 1071 (9th Cir. 1991).

ae THOSE COURTS APPLYING -HARMELIN’S THRESHOLD

COMPARISON CONFLICT REGARDING WHETHER THE

SPECIFIC FACTS AND CIRCUMSTANCES OF THE CRIME

MUST BE EXAMINED.

Of those courts purporting to apply Harmelin, another conflict

exists over whether the court should examine the particular facts

and circumstances surrounding the offense and the offender, or

should instead examine only the threat posed to society and to the

individual by the type of conduct at issue, when comparing the

11

crime committed and the sentence imposed to make the threshold

determination of whether there exists an inference of gross

disproportionality.

Several courts have found Harmelin to require only an

examination of the threat posed by the type of conduct at issue,

and not the specific facts underlying the defendant’s offense. As

summarized in one Sixth Circuit case, “Justice Kennedy analyzed

the seriousness of the offense generically in terms of the threat

posed by the type of conduct at issue in the case rather than the

specific threat posed by Mr. Harmelin himself.” United States v.

Hopper, 941 F.2d at 422 (examining threat posed by the

defendant’s type of offense); see also McCullough v. Singletary,

967 F.2d at 535 (examining type of conduct generally involved in

the offenses committed by the defendant); McGruder v. Puckett.

954 F.2d at 316-17 (evaluating the types of prior crimes defendant

committed and the threat to society from them, and not the specific

facts of the defendant’s prior crimes). This approach is adopted by

the dissent in the current case, which stated:

Harmelin provides no support for the majority’s

discussion of the indispensability of considering the facts

of defendant’s crimes or for its consideration of those

facts in determining whether defendant’s sentences are

grossly disproportionate to the severity of his crimes.

Bartlett II (Corcoran, J., dissenting), Appendix A at 34.

In conflict with this approach, other courts have examined the

specific circumstances underlying the defendant’s commission of

the charged offense in determining gross disproportionality. See,

€.8., Bradford v. Whitley, 953 F.2d at 1012 (looking at underlying

facts of defendant’s armed robbery and attempted manslaughter

12

convictions); United States v. Pavlico, 961 F.2d 440, 448 (4th

Cir.), petition for cert. filed, No. 91-8558 (June 9, 1992)

(examining specifics of the crime and comparing defendant’s

culpability with that of his co-defendants). This approach is taken

by the majority of the Arizona Supreme Court in the present case:

[W]e read Justice Kennedy’s opinion to mean that it is

the circumstances of the crime and the criminal that must

be considered in determining gross disproportion.

Bartlett II, Appendix A at 75-76.

D. THE COUNTRY NEEDS THIS CouRT’S

GUIDANCE TO RESOLVE THESE CONFLICTS.

The above brief examination of the diverse analyses being

applied by courts across the nation leads to the inescapable

conclusion that this Court must quickly step forward and address

this issue. Without immediate intervention, courts will continue to

divide into an increasing number of analytical camps and

defendants will be faced with an unequal application of

constitutional justice.

13

II

THE ARIZONA SUPREME COURT ERRED AS A

MATTER OF FEDERAL CONSTITUTIONAL LAW IN

INTERPRETING HARMELIN TO REQUIRE

EXAMINATION OF THE SPECIFIC FACTS AND

CIRCUMSTANCES UNDERLYING BARTLETT’S

CRIME IN DETERMINING IF. THEY WERE

GROSSLY DISPROPORTIONATE TO THE

SENTENCES IMPOSED.

In Bartlett 1, the Arizona Supreme Court applied the

three-prong test set forth in Solem. (Bartlett I, Appendix C at 20.)

To determine the “gravity of the offense” under the first prong of

Solem, the Arizona Supreme Court examined

the type of harm threatened or inflicted and the level of

the defendant’s culpability, measured by the seriousness

of the crime, against whom it was committed, and its

level of violence.

Id. (citing Solem, 463 U.S. at 292-93). Thus, the Arizona

Supreme Court evaluated the specific circumstances underlying

Bartlett’s particular offenses.

In Bartlett II, on remand from this Court for consideration in

light of Harmelin, the Arizona Supreme Court held that, under

Justice Kennedy’s concurrence in Harmelin, a_ threshold

comparison must be made between the crime committed and the

sentence imposed in order to determine if there is an inference of

gross disproportionality. (Bartlett I], Appendix A at 9-11.) The

court held, however, that this comparison could not be made

“without considering all of the factors that aggravate or mitigate

the crime,” reasoning that Justice Kennedy meant “that it is the

circumstances of the crime and the criminal that must be

14

considered in determining gross disproportion.” (/d. at 17, 75.)

Based upon this analysis of Harmelin, the Bartlett I] majority

resorted to the very factors listed as relevant under the first prong

of Solem and its previous analysis of those factors in Bartlett I to

make the Harmelin threshold determination. (Bartlett II,

Appendix A at 13-21.)

Not surprisingly, in Bartlett I] the court reached the same

result applying the factors set forth in Solem as it had reached

applying them in Bartlett /. It then applied Solem’s intra and inter-

jurisidictional analysis, just as it had done in Bartlett I. (Id.

at 25-27, 54-71.) The court concluded by again vacating Bartlett’s

40-year sentence for two counts of sexual conduct with a minor

under the age of 15, and reinstating the sentences which had been

imposed by the trial court during the pendency of the petition for

writ of certiorari in Bartlett I. (Id. at 28-29.)

A review of the court’s analysis shows that the Bartlett IJ

majority read this Court’s remand of Bartlett J for consideration in

light of Harmelin to be little more than an invitation to reapply

Solem. An examination of the gross disproportionality analysis

conducted by Justice Kennedy, however, shows that the proper

analysis requires a comparison of the type of conduct at issue, not

the specifics of the defendant’s crime and character. As stated by

the dissent in Bartlett I:

Justice Kennedy’s analysis measured the severity of

Harmelin’s crime not by analyzing the particular facts

and circumstances of the crime, but rather by analyzing

the threat posed to the individual and to society by the

commission of that crime. See Harmelin, .. . 111 S. Ci.

at 2705-07 (In determining whether Harmelin’s crime

15

was momentous enough to warrant a life sentence

without parole, Justice Kennedy did not discuss the fact

that during the commission of his crime Harmelin was

neither violent nor did he injure anyone. Rather, Justice

Kennedy discussed numerous ways in which illegal drugs

threaten the individual and society).

Bartlett II (Corcoran, J., dissenting) (emphasis in original),

Appendix A at 32-33.

Requiring examination of the facts and circumstances

aggravating or mitigating a defendant’s crime contradicts not only

the analysis applied by Justice Kennedy, but also this Court’s

rejection of Harmelin’s argument that he was constitutionally

entitled to individualized sentencing. Harmelin, 111 S. Ct.

at 2701-02. As the Bartlett I] dissent noted, “the eighth

amendment allows a judge to impose a sentence without taking into

account the particulars of the crime or of the criminal.” (Bartlett

II, (Corcoran, J., dissenting) (citing Harmelin, 111 S. Ct. at 2684,

2701-02, 2707-09), Appendix A at 33-34.)

As indicated above, the Bartlett I] majority found that “the

question of ‘gross disproportion’ cannot be resolved without

considering all of the factors that aggravate or mitigate the crime,”

i.e., “the circumstances of the crime and the criminal.” (Bartlett

II], Appendix A at 17, 75.) Under this analysis, a noncapital

defendant, who is not constitutionally entitled to have his individual

circumstances considered in sentencing, is constitutionally entitled

to a determination of whether his sentence is constitutional given

his individual circumstances. This result is internally inconsistent

and an erroneous application of Harmelin.

CONCLUSION

Large numbers of noncapital defendants continue to challenge

the constitutionality of the terms of imprisonment imposed upon

them. Courts across the nation, faced with this inundation of

claims, have been unable to consistently adjudicate them. The 3-2

decision in the present case represents but one example of the

conflicts plaguing the courts and the erratic results that have

followed. Given the desperate need of the courts below for

guidance on this issue, and the Arizona Supreme Court’s erroneous

application of Harmelin, Petitioner urges this Court to accept

review, to overrule the Arizona Supreme Court’s determination

that Bartlett’s sentences were unconstitutional, and to modify or

clarify Harmelin to provide future guidance.

Respectfully submitted,

GRANT WOODS

ATTORNEY GENERAL

PAUL J. McCMURDIE

CHIEF COUNSEL

CRIMINAL APPEALS SECTION

LINDA L. KNOWLES

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR PETITIONER

17

APPENDIX A

[Filed May 8, 1992]

IN THE SUPREME COURT OF THE STATE OF ARIZONA

THE STATE OF ARIZONA, ) Supreme Court

) No. CR-88-0411-PR

Appellee, )

) Court of Appeals

TS. ) No. 2 CA-CR 88-0024

)

JOSEPH BARTLETT, JUR., ) Cochise County

) No. CR 87-00020

Appellant. )

)

OPINION

Appeal from the Superior Court of

Cochise County

The Honorable Richard A. Winkler, Judge

ORIGINAL SENTENCE VACATED

SENTENCE AFTER REMAND AFFIRMED

Memorandum Decision of the Court of Appeals,

Division Two, filed November 10, 1988,

vacated

Grant Woods, The Attorney General Phoenix

By: Paul J. McMurdie

Diane M. Ramsey

Attorneys for Appellee

David P. Flannigan Bisbee

-and-

Hicks & Conlogue, P.C. Bisbee

By: James L. Conlogue,

Attorneys for Appellant

ae

sente e *

, A € tT ‘ ‘ +

t e In reo + + 4 + |

back bef re this c urt hecause + ¢

Inited States Supreme Court acated

consideration in light of its deci

Harmelin v.Michigan, U.S.

111 S.Ct. 2680 (1991). See Arizona

Bartlett, U.S. » £2S° SB. CEL 2666

FACTS AND PROCEDURAL HISTORY

Joseph Bartlett, Jr. (Defendant) was

convicted in 1987 of two counts of sexual

misconduct with a minor, under A.R.S.

§ 13-1405. The facts established that

the two girls involved were Just under

fifteen years old and that the sexual

acts were entirely consensual.

Nevertheless, the state invoked the

provisions of A.R.S. §§ 13-604(H) and

13-604.01, requiring the trial court to

impose mandatory consecutive sentences on

the two counts. As a result, even though

he imposed the mitigated minimum terms of

fifteen and twenty-five years, the trial

judge was required to sentence Defendant

to consecutive terms totaling forty years

in prison, the sentence to be served as

“hard time,” with no possibility of early

release or parole.

Acknowledging that A.R.S. § 13-604.01

was constitutional on its face, Defendant

Challenged the constitutionality of his

sentence and claimed that, with regard to

his crime, the sentence constituted cruel

and unusual punishment. The court of

appeals rejected this argument and

affirmed Defendant's sentence in a

memorandum decision. State v. Bartlett,

_

No. 2 CA-CR 88-0024 (Ct. App. Nov. 10,

1988). On review, we concluded that

Defendant's sentence constituted cruel

and unusual punishment under the eighth

amendment to the United States

Constitution. Bartlett I, 164 Ariz.

at 240, 792 P.2d at 703. Noting that

Defendant could not be given a more

lenient sentence under the provisions of

A.R.S. § 13-604.01, we remanded the case

for resentencing, classifyirg Defendant

as a Class 2 felon but holding that “the

Statutory range of sentencing under

A.R.S. § 13-604.01 [could not] constitu-

tionally be applied” on resentencing.

Id. at 241-42, 792 P.2d at 704-05.

The United States Supreme Court granted

the state's petition for a writ of

certiorari, vacated our opinion, and

remanded for reconsideration in light of

its decision in Harmelin. While Arizona

v Bartlett was pending before the United

States Supreme Court, Defendant appeared

~

before the trial judge for resentencing

Pursuant to our order of remand. No

longer constrained by A.R.S. §§ 13-604(H)

and 13-604.01, the trial judge was vested

with considerably more discretion in

sentencing defendant on his two-count

conviction. After hearing evidence

regarding the offenses, and in the

exercise of his discretion, the judge

i imposed the minimum terms for a class 2

felony, sentencing Defendant to five and

one-quarter years on one count and seven

years on the other, the sentences to run

concurrently. The trial judge could

have, but did not, sentence Defendant to

aggravated terms that, if imposed

consecutively, would have totalled

thirty-five years. Under the sentence

imposed, Defendant would have become

parole-eligible in approximately four

years and eight months and could have

served no more than seven years. Thus

Defendant, who has been incarcerated in

=

ee

the state prison system since his

sentencing in 1988, would soon be

eligible for parole if not for the United

States Supreme Court's remand for

reconsideration.

On remand from the United States

Supreme Court, we requested additional

briefing from counsel and heard

additional oral argument on the question

of whether our holding in Bartlett I

could stand in light of the Supreme

Court's decision in Harmelin.

Accordingly, we begin with a summary of

our previous opinion and an analysis of

the Supreme Court Justices' opinions in

Harmelin.

DISCUSSION

A. Bartlett I

We granted review in Bartlett I to

determine whether Defendant's sentence

constituted cruel and unusual punishment

under the federal or state constitution.

a ee

164 Ariz. at 230, 792 P.24@ eat 693.

Applying the three-prong test of Solem v.

Heim, 463 U.S. 277, 103 &.Ct. 3601

(1983), we held:

l. The forty-year sentence with no

possibility of early: release was grossly

out of proportion to the severity of the

Crimes as shown by the facts of the

case. Bartlett I, 164 Ariz. at 234-36,

792 P.2d at 697-99.

Bs The sentence was disproportionate

to others imposed in Arizona for more

serious crimes. Id. at 236-37, 792 P.2d

at 699-700.

3. The sentence was disproportionate

to those imposed on similarly situated

defendants in other jurisdictions. Id. a

at 237-40, 792 P.2d at 700-03.

We therefore concluded that Defendant's

sentence constituted cruel and unusual

punishment under the eighth amendment to

the United States Constitution, and

consequently did not address the validity

x

of the sentence under the analogous

Provision in the Arizona Constitution.

Id. at 240-41, 792 P.2d at 703-04.

B. Harmelin v. Michigan

Ronald Harmelin was sentenced in state

court to a mandatory term of life

imprisonment without possibility of

parole after being convicted of

possessing 672 grams of cocaine. On

appeal to the United States Supreme

Court, Harmelin claimed his sentence was

unconstitutionally cruel and unusual

because it was "significantly

disproportionate" to his crime, and

because the judge was required by statute

to impose a fixed sentence without

considering the “particularized

Circumstances of the crime and of the

Criminal." Harmelin, U.S. at

111 S.Ct. at 2684.

Justice Scalia announced the Court's

judgment that Harmelin's sentence did not

constitute cruel and unusual punishment.

Justice Scalia delivered the Court's

Opinion, however, only in rejecting

Harmelin's contention -- which Bartlett

does not raise in the present case --

that "a sentence which is not otherwise

Cruel and unusual becomes so Simply

because it is ‘mandatory'" and that

individualized sentencing is required in

noncapital cases. Id, at __, 1ll S.Ct.

at 2701-02. In contrast, Only Chief

Justice Rehnquist concurred with Justice ~

Scalia*s conclusion that "Solem was

Simply wrong; the Eighth Amendment

contains no Proportionality guarantee,"

1a. ot .., 1ll B.Ct. at 2686, which was

not the holding of the Court.

Justice Kennedy, joined by Justices

O'Connor and Souter, delivered a

concurring opinion on the question of

proportionality, the issue now before

us. Justice Kennedy stated that the

eighth amendment “encompasses a narrow

«Aa.

proportionality principle." Id. at ,

£42 B.4cE. Ot 27Cd. He interpreted Solen

as "best understood as holding that

comparative analysis within and between

jurisdictions 1s not always relevant to

proportionality review." Id, at ,

lll S.Ct. at 2707 (emphasis added).

"[IJntra- and- inter-jurisdictional

analyses are appropriate only in the rare

case in which a threshold comparison of

the crime committed and the sentence

imposed leads to an inference of gross

disproportionality.”" Id, The important

test, therefore, is whether the sentence

is grossly disproportionate to the

gravity of the offense. The purpose of

comparative analysis 1s to validate an

initial inference of gross

disproportionality. Id.

Finally, four members of the Court

(Justices White, Blackmun, Stevens, and

Marshall) would not restrict Solem at

all. Id. at » B28 6.08. Of 2109-19

(White, J., dissenting); id. at ; <a

S.Ct. at 2719 (Marshall, J., dissenting;

id. at _ , £213 6.0. Ot 2718.26

(Stevens, J., dissenting).

Applying the view of the Court ls

difficult when the Justices’ Opinions are

SO diverse and expressed in five: separate

Opinions. We believe, however, that

Solem survives Harmelin. While two

Justices conclude that it was wrong,

neither a majority nor a plurality was

| willing to overrule Solem. ? On the

| other hand, it seems reasonable to

conclude that if Solem's proportionality

analysis is to be applied at all,

Justices Scalia and Rehnquist would

probably prefer Justice Kennedy's

approach over the dissenters’ strict

adherence to Solem's three-prong

analysis.“ We therefore reexamine our

opinion in Bartlett I under the standard

articulated by Justice Kennedy. >

-A-ll-

Cc. Application of the Harmelin Standard

lL. Gross Disproportion of Defendant's

Sentence to his Crimes

We begin our inquiry under Harmelin by

following Justice Kennedy's direction to

determine whether Defendant's forty-year

total sentence with no possibility of

parole is grossly disproportionate to his

crimes. In Bartlett I, we held that the

“broad application of the statute to

encompass [Defendant's] situation results

in a penalty grossly out of proportion to

the severity of the crime." 164 Ariz.

at 236, 792 P.2d at 699 (emphasis

added). We reached this conclusion after

thorough analysis of the facts, which may

be summarized as follows: In September

1986, Defendant, age twenty-three, was

introduced to Mary,° age fourteen and

one-half. A few months later, Mary

introduced Defendant to her friend Susan,

of approximately the same age. Mary had

-A-l2-

voluntary sexual intercourse with

Defendant in December 1986, when she was

fourteen years and ten months of age.

Susan also had voluntary sexual

intercourse with Defendant in December

1986, when she was fourteen years and six

months of age.

In January 1987, Susan's mother filed a

complaint with the police, alleging that

Defendant had forcibly sexually assaulted

Susan. When Defendant learned from

neighbors that the police were inquiring

about him, he voluntarily went to the

police station. Defendant admitted to

the police that he had had consensual

sexual intercourse with both Susan and

Mary knowing that they were under fifteen

years old at the time. Both girls testi-

fied at trial that the intercourse with

Defendant had been voluntary. Defendant

was found guilty of two counts of penuel

conduct with a minor under fifteen years

‘ >

Old. See A.R.S. § 13-1405.~

-A-13-

There are no new facts to be considered

lm Our current analysis. In general,

then this 1S a case of consensual sexual

1 the other hand, we bear in

that the two victims were below the

age determined by the legislature to be

the age at which consent to sexua]

-

relations could validly be given. This

means, of course, that Defendant

conduct was criminal, but does not

foreclose the constitutional issue:

whether a forty-year sentence without

possibility of parole is cruel and

unusual when applied to the facts set

forth above.

In Solem, the Supreme Court set forth

several factors relevant in weighing the

Gravity of an offense against the sever-

ity of a penalty in order to determine

gross disproportion. These include "fhe

harm caused or threatened to the victim

Or society, and the culpability of the

Offender. .. . For example, as the

oA~14-

Criminal laws make clear, nonviolent

Crimes are less serious than crimes

marked by violence or the threat of

violence." 463 U.S. at 292-93, 103 S.Ct.

at 3011. The Court explained that

[t)his list is by no means

exhaustive. It simply illustrates

that there are generally accepted

Criteria for comparing the

severity of different crimes on a

broad scale, despite the diffi-

culties courts face in attempting

to draw distinctions between

Similar crimes.

Id. at 294, 103 S.Ct. at 3011. Although

review, it did not criticize the factors

utilized in Solem to determine whether

the sentence is grossly disproportionate

to the crime.

Having again reviewed the case, we find

now, as we found before, that the

Original sentence imposed on Defendant is

"a penalty grossly out of proportion to

the severity of the crime.” Bartlett I,

164 Ariz. at 236, 792 P.2da at 699. We

base that conclusion on several factors.

-A-15-

_

.

First, the circumstances of this crime,

particularly the absence of violence or

any threat of violence, minimize its

severity. See Harmelin, — U. S.

at , lll S.Ct. at 2705-06 (comparing

nonviolent crime in Solem to violence

often accompanying or resulting from drug

Crimes). As we wrote in Bartlett I:

Although the minor's consent will

not decriminalize the sexual con-

duct, that consent is relevant to

bur inquiry into the gravity of the

offense. In this case, both minors

were close to the maturity line

that the legislature has drawn for

less serious offenses. According

to their testimonies, both were

willing participants in defendant's

conduct. Defendant used no violent

force or threats against them.

Neither girl was physically injured

or testified to any emotional

trauma. Under these circumstances,

we must certainly consider these

offenses less grave than the others

punishable under the same statutory

scheme: second degree murder,

sexual assault, taking a child for

the purposes of prostitution, child

prostitution, involving or using a

minor in drug offenses, aggravated

assault, molestation of a child,

sexual exploitation of a minor,

child abuse, or kidnapping. See

generally A.R.S. § 13-604.01.

164 Ariz. at 234-35, 792 P.2d at 697-98.

-A-16-

Second, Defendant's lack of a prior

record of any crime, let alone a crime

involving children, further reduces the

gravity of his offenses, particularly

with respect to the increased sentence

for his “recidivist" second offense. See

Harmelin, 0.6. at — Bas BaGes

at 2705 (discussing felonies underlying

defendant's recidivism in Solem). As we

stated in our original opinion:

As to defendant's personal

culpability, the record indicates

that he was an “immature” young

man who associated with a younger

peer group because of his

emotional insecurities, which

included a pending divorce after

marriage at a young age. He had

no prior felony record and no

history of assaulting young

children. No evidence was

presented that he intended to harm

these girls, either physically or

emotionally.

Bartlett I, 164 Ariz. at 235, 792 P.2d

at 698. These circumstances are relevant

here, not because they excuse the conduct

but because the question of "gross

disproportion" cannot be resolved without

~A-17-

considering all of the factors that

aggravate or mitigate the crime.° To

ignore the facts in determining whether a

sentence is cruel and unusual would make

the title of the statute -- “Dangerous

Crimes Against Children" -- determine the

constitutionality of the sentence

imposed. Surely, if this court has a

responsibility to review the constitu-

tionality of sentences under the eighth

amendment, that duty requires us to apply

the standards of the federal constitution

to the facts of what occurred, no matter

what label the legislature has attached

to the criminalizing statute. Legisla-

tures must of necessity paint with a

broad brush, leaving it to the courts to

measure constitutionality by applying law

to facts -- the true judicial function.

Third, we cannot in good faith ignore

the realities of adolescent life

described in Bartlett I: "We must

recognize that sexual conduct among

-A-18-

post-pubescent teenagers is not

uncommon." 164 Ariz. at 235, 792 P.2d

at 698./ Indeed, "[a]according to

their testimonies, both [girls] were

willing participants in defendant's

conduct.” Id. at 234, 792 P.2d at 697.

While this does not make Defendant's

conduct any less “criminal,” it

illustrates the relative severity of its

harm to society. Cf. Harmelin, U.S.

at ___, lll S.Ct. at 2705-06 (drug crime

in a different categorv than "relatively

minor, nonviolent crime at issue in

Solem," given grave threat of violence

and harm to society resulting from drug

trafficking and use).

We acknowledge the legislature's

prerogative to criminalize behavior and

to choose the appropriate punishment.

See Harmelin, ____—*U«.S. at » 248--8-6t.

at 2703. Hence, we do not view this

Crime as minor -- witness the seven-year

sentence imposed on resentencing. But so

-A-19-

long as the eighth amendment contains

even a narrow proportionality principle

-- and Harmelin says that it does,

uo. #2 .... £45 GCE. GE 2702 =—= 2

is difficult to believe that it permits

the state to imprison for forty years'

hard time everyone eighteen years of age

or older who twice has had intercourse

with a consenting, willing, post-

pubescent teenager. While the dissent

views this as a "rational" method of

controlling the societal threats posed by

teenage sexual activity, dissent at 27

(Corcoran, J.), we believe it so drastic

an approach to an age-old problem as to

indicate that the threshold of consti-

tutional limitations has been reached.

Finally, the evolution of the law and

present sentencing standards tell us much

about the disproportionality of the

sentence. While statutory rape, along

with many other felonies, may once have

been a capital crime, see Harmelin,

~A-20~

_._. VsS. Ot 5 S41 &.CE. OS Zee.

societal standards have changed. Indeed,

the modern trend in the law has been to

separate the crime of statutory rape from

other violent forms of rape, and

concomitantly to reduce the severity of

the sentence. See generally American Law

Institute, Model Penal Code and

Commentaries, §§ 213.1 comment 6, 213.3

comment 2 (Official Draft and Revised

Comments 1980). The “minimum” sentence

imposed in this case, however, for

consensual sexual intercourse with two

willing post-pubescent girls is

comparable to the minimum sentence

imposable had Defendant been provoked,

become violent, killed the girls, and

been convicted of second degree murder.

See A.R.S. § 13-604.01(1)(a).

As we said before:

Measuring the gravity of the

offenses in this context, we must

compare the harshness of the sp

penalty. The legislature has

imposed mandatory minimum

-A-21-

consecutive sentences of 15 and

25 years for the first and second

acts of consensual sexual conduct

with a minor, with no possibility

of early release. The trial court

thus had no discretion to reduce

the penalty according to the

individual circumstances that

indicated a less serious offense

Or a less culpable defendant. 8

Defendant, with no prior felony

history, has received a 40-year

penalty for sexual conduct with

two consenting post-pubescent

teenagers. The broad application

of the statute to encompass this

Situation results in a penalty

grossly out of proportion to the

severity of the crime. Although

such a harsh penalty may be

justified in the context of other,

more heinous crimes included

within the sentencing scheme, it

is not justified under the

Specific circumstances of this

case.

Bartlett I 164 Ariz. at 236, 792 P.2d

at 699 (emphasis added; footnote added).

Cases such as State v, Atwood,

Ariz. __, P.2d __ (1992), State

VV. meaty, 156 Ariz. 232, 762 P.2d $19

(1988), cert. denied, 491 U.S. 910,

109 S.Ct. 3200 (1989), and State v.

Roscoe, 145 Ariz. 212, 700 P.2d 1312,

cert. denied, 471 U.S. 1094, 105 S.Ct.

-A-22-

2169 (1985), see dissent at 32-33

(Corcoran, J.), illustrate the very point

we make. These cases involve violent

sexual crimes against young children who

were incapable of giving actual, let

alone legal, consent and who were later

murdered by the perpetrators in

question. In our view, the eighth

amendment requires that a clear

distinction be made between such crimes,

the facts of which demand and receive the

most severe penalties, and the crime that

we now consider today. The

proportionality principle contained in

the eighth amendment requires that this

defendant, whose crime involved no

violence and whose victims willingly

consented, be treated much less severely

than those who commit violent sexual

crimes against young children.

Nor is this a case in which, as the

dissent suggests, our personal views

"conclude our judgment." Dissent at 29

-A-23-

(Corcoran, J.). In measuring what is

cruel and unusual, the eighth amendment

"must draw its meaning from the evolving

Standards of decency that mark the

progress of a maturing society." Trop

Dulles, 356 U.S. 86, 101, 78 S. Ct. aes

5998 (1958) (plurality opinion). At one

time, the stocks or punishment by

flogging might not have been cruel and

unusual. One supposes that castration

would be an effective and prompt

punishment for this crime, and Surely a

more certain, less expensive and perhaps

more “rational” method of controlling

sexual promiscuity, see dissent at 27

(Corcoran, J.), than forty years’

imprisonment without possibility of

parole. Informed by our reading of the

Standards of present-day civilization, we

nevertheless venture that today such

punishments are cruel and unusual, even

were the legislature to authorize them by

Statute. The eighth amendment, after

all, is either a barrier to legislative

action or nothing but empty words. The

point we make, which the dissent avoids,

is that -- as a matter of proportionality

Standards, not of either intra-

Jurisdictional comparison or comparison

between modes of punishment -- a sentence

of forty years without possibility of

parole for consensual sex with

post-pubescent teenagers reaches the

threshold of gross disproportion, given

the fact that the people, through their

legislature, have adopted statutes under

which the courts impose comparable

punishment by imprisonment for crimes

such as violent rape, second degree

murder, and brutal assault of children.

See cases cited, post, note 9.

Here, unlike in Harmelin, which dealt

witn a defendant convicted of an offense

involving drug dealing, it can be fairly

-A-25-

said that the regime applied to the

offense committed by Defendant is an

"ancient one revived in a sudden or

Surprising way[, not one] calibrated with

care, Clarity and much deliberation."

Harmelin, U.S. at ; dae Bee.

at 2708 (opinion of Kennedy, J.). We

therefore conclude, as we did before,

that Defendant's sentence was grossly

disproportionate to his crimes.

r intra- and Inter-Jurisdictional

Comparative Analysis

We have drawn the threshold inference

required by Harmelin that Defendant's

sentence was grossly disproportionate to

his crimes. We must next conduct an

intra- and inter-jurisdictional

comparison to validate that inference.

eee Harmelin, _.._ U.S. at __ ,, 11 S.Ct.

at 2707. First, we compare Defendant's

sentence to the sentences imposed in

Arizona for more serious crimes. Because

Harmelin did not alter the analysis under

the second and third prongs of the Solem

test, see id., we will not rehash the

comparison we conducted in Bartlett I;

however, we set forth the Original

analysis supporting our conclusion in

Part I of the Appendix. We quote from

Our Original conclusion:

We conclude that a comparison of

the punishments imposed for other

Crimes in Arizona reveals the

disproportion with which defendant

was sentenced under these factual

Circumstances.

164 Ariz. at 237, 792 P.2d at 700.”

Next, we compare Defendant's sentence

to sentences for the same crime in other

jurisdictions. In Bartlett I, we

concluded that “the mandatory minimum

sentence imposed on defendant for his

first offense was disproportionate to

sentences received by similarly situated

defendants in other jurisdictions," and

that “the 25-year mandatory minimum

imposed for defendant's second offense

[was] also disproportionate to the

~ )

sentences imposed on similarly situated

defendants in other jurisdictions." Id.

at 239-40, 792 P.2d at 702-03. 7"

Again, we see no point in prolonging this

Opinion by restating that which was

thoroughly discussed in Bartlett I. We

include the supporting analysis from

Bartlett I as Part II of the Appendix.

We have determined that Defendant's

sentence is grossly disproportionate to

his crime. Our intra- and inter-

jurisdictional comparison confirms our

initial inference. We therefore hold

that Defendant's forty-year sentence

without possibility of early release

violates the eighth amendment prohibition

of cruel and unusual punishment.

D. Cruel and Unusual Punishment Under

the Arizona Constitution

In Bartlett I, we explained that

“{h]aving concluded that the sentences

imposed in this case violate the eighth

amendment prohibition against cruel and

-A-28-

.

unusual punishment, we do not address

whether they violate art. 2, § 15 of the

Arizona Constitution." 164 Ariz. at 241,

792 P.2d at 704. For the same reason, we

do not address at this time the issue of

whether our precedent applying a

proportionality analysis -- predating

Solem!? -- would require a broader

proportionality analysis under the

Arizona Constitution than is appropriate

under the federal constitution as

interpreted in Harmelin. Nor do we

consider whether other factors suggest a

different standard for assessing cruel

and unusual punishment under our state

constitution.

DISPOSITION

Defendant's original sentence

constituted cruel and unusual punishment

under the limited proportionality

analysis and principal articulated in

-A-29-

Justice Kennedy's concurring opinion in

Harmelin. That. sentence is vacated. We

need not, therefore, reach the issues

pertaining to the Arizona Constitution.

as

cT

In Bartlett I, after concluding that

Defendant could not constitutionally be

sentenced under A.R.S. § 13-604.01, we

remanded to the trial court for

resentencing with instructions that

Defendant be sentenced as a class 2 felon

under A.R.S. §§ 13-701 and 13-702.

164 Ariz. at 241, 792 P.2d at 704.

Pursuant to our instructions, the trial

court has resentenced Defendant to five

and one-quarter years on one count and

seven years on the other, the sentences

to run concurrently. That sentence

stands and has not been challenged by

Defendant. Because Defendant has already

been resentenced, there is no need for

another remand. The court of appeals'

~A~30~

memorandum decision is vacated. The

sentence presently in effect is affirmed.

STANLEY J. FELDMAN, Chief

Justice

CONCURRING:

JAMES DUKE CAMERON, Justice

(retired)

FRANK X. GORDON, JR., Justice

(retired)

-A-31-

CORCORAN, Justice, dissenting:

I. Harmelin versus Solem

respectfully dissent. I believe that

|

the majority properly interprets Harmelin

Michigan, U.S. — » B22. Be ees

2680 (1991), as requiring a Somewhat

narrower proportionality analysis than

that previously required by Solem v.

Helm, 463 U.S. 277, 103 S. Ct. 300i

(1983). I dissent, however, because

instead of applying such an analysis, the

majority merely re-applies Solem.

As the author of Bartlett I, I am

pleased that the majority recognizes it

as a comprehensive and lucid application

of Solem. However, in Arizona v.,

Bartiett, — U.S. _.., £44 &. Ges #060

(1991), the United States Supreme Court

vacated Bartlett I and remanded the case

to this court for further consideration

in light of Harmelin--not for some minor

editing and rearrangement.

-A-32-

Just what light Harmelin casts--with

its 5 separate opinions--is concededly

not easy to see. I agree with the

majority that Justice Kennedy's opinion,

although joined only by Justices O'Connor

and Souter, articulates the propor-

tionality analysis now required by the

eighth amendment . +? I disagree,

however, with the majority's application

of that analysis.

Under Justice Kennedy's analysis, a

court must first determine whether it is

reviewing "the rare case in which a

threshold comparison of the crime

committed and the sentence imposed leads

to an inference of gross dispropor-

tionality.” Har -, -. U8. eat ,

111 S. Ct. at 2707. If the threshold

comparison does not lead to an inference

of gross disproportionality, the analysis

is complete; the sentence does not offend

the eighth amendment. If, on the other

hand, the threshold comparison does lead

-A-33-

ee

to an inference of gross dispropor-

tionality, the court may find it useful

to conduct intra- and

inter-jurisdictional proportionality

reviews. ot, '3% ie = ya ; ee

itd Bs SO.) OE 27e7.

The majority begins its analysis by

stating, "In Bartlett I, we held that the

‘broad application of the statute to

encompass [Defendant's] situation results

in a penalty grossly out of proportion to

the severity of the crime.' We reached

this conclusion after thorough analysis

of the facts ... ." (emphasis in

Original) (citation omitted). Then,

after re-analyzing tne exact same facts

that we analyzed in Bartlett I, the

majority concludes that "the original

sentence imposed on Defendant is ‘a

penalty grossly out of proportion to the

severity of the crime.'” (Citation

omitted. )

While I would have to agree that this

analysis is consistent with the gross

disproportionality analysis articulated

by Justice Kennedy, it is wholly

inconsistent with the gross dispropor-

tionality analysis conducted by Justice

Kennedy. Justice Kennedy's analysis

measured the severity of Harmelin's crime

not by analyzing the particular facts and

circumstances of the crime, but rather by

analyzing the threat posed to the indi-

vidual and to society by the commission

of that crime. See Harmelin, u.s.

at e 111 S&S. Ct. at 2705-07 (In

determining whether Harmelin's crime was

momentous enough to warrant a life

sentence without parole, Justice Kennedy

did not discuss the fact that during the

commission of his crime Harmelin was

neither violent nor did he injure

anyone. Rather, Justice Kennedy

discussed numerous ways in which illegal

drugs threaten the individual and

-A-35-

society.). Moreover, 5 Justices

expressly rejected Harmelin's argument

that his sentence was unconstitutional

because "the sentencing Judge was

statutorily required to impose it,

without taking into account the

particularized circumstances of the crime

and of the criminal," and held that the

eighth amendment allows a judge to impose

a sentence without taking into account

the particulars of the crime or of the

Criminal. See Harmelin, _ U.S.

at ’ ene eee ee Re,

at 2684, 2702-02, 2707-09. In sum,

Harmelin provides no support for the

majority's discussion of the

indispensability of considering the facts

of defendant‘s crimes or for its

consideration of those facts in

determining whether defendant's sentences

are grossly disproportionate to the

severity of his crimes.

In addition to re-analyzing the facts

of defendant's crimes, the majority bases

its conclusion that his sentences are

grossly disproportionate to the severity

of his crimes by considering 4 additional

factors. The first is "the circumstances

of [the] crime." As just noted, however,

a fair reading of Harmelin compels the

conclusion that in conducting our gross

disproportionality analysis, we should

not take into account the circumstances

of the crime.

The second factor is defendant's "lack

of a prior record." In Harmelin,

however, Justice Kennedy did not mention

the fact that Harmelin had no prior

felony convictions. Similarly,

5 Justices expressly rejected Harmelin's

argument that "it is ‘cruel and unusual'

to impose a mandatory sentence of such

severity, without any consideration of

so-called mitigating factors such as, in

his case, the fact that he had no prior

~i~3'7-

a

felony convictions.” Harmelin, __ U.S.

at », lll S. Ct. at 2701 (emphasis

added). Under Harmelin's gross

disproportionality analysis, this court

should not take into account defendant's

lack of a prior record.

The third factor the majority considers

is “the realities of adolescent life."

The majority appears to believe that the

crimes committed in this case should not

be considered severe because they are

“not uncommon." By affirming Harmelin's

sentence, however, the United States

Supreme Court appears to believe that

even crimes which are “not uncommon,"

such as possessing illegal drugs may be

considered severe enough to impose the

harshest punishment available, save

death. See Harmelin, __ U.S. at ,

111 S. Ct. at 2705. Indeed, it is

precisely because the crimes committed by

defendant and Harmelin are “not uncommon"

that they pose such a threat to the

individual and to society.

Further, Harmelin makes clear that it

is not for this court to weigh the

realities of adolescent life in

determining the propriety of a particular

sentence. As Justice Kennedy pronounced

in Harmelin,

[The fixing of prison terms for

specific crimes involves a

substantive penological judgment

that, as a general matter, is

“properly within the province of

legislatures, not courts.”

Determinations about the nature

and purposes of punishment for

Criminal acts implicate difficult

and enduring questions respecting

the sanctity of the individual,

the nature of law, and the

relation between law and the

social order. “As amoral or

political issue [the punishment of

offenders] provokes intemperate

emotions, deeply conflicting

interests, and intractable

disagreements." The efficacy of

any sentencing system cannot be

assessed absent agreement on the

purposes and objectives of the

penal system. And the

‘bilj F i

fund

implementing them lies with the

legislature.

-A-39-

Harmelin, U.S. at » Bee Be Gee

at 2703 (emphasis added) (citations

omitted). Under Harmelin'’s gross dispro-

portionality analysis, the legislature,

not this court, must determine what role,

if any, the realities of adolescent life

play in fixing prison terms for

defendants convicted of sexual misconduct

with children.

This is certainly not to say that this

court may uphold as constitutional a

sentence that has no rational basis. It

may not. Conversely, however I believe

that Harmelin requires this court to

uphold as constitutional a sentence that

does have a rational basis. See

Harmelin, _ U.S. at » Bane. CE.

at 2706 ("(T]he Michigan Legislature

could with reason conclude that the

threat posed to the individual and

society by possession of [more than

650 grams] of cocaine .. . iS momentous

enough to warrant the deterrence and

retribution of a life sentence without

parole. . . . [A] rational basis exists

for Michigan to conclude that

(Harmelin's] crime is as serious and

violent as the crime of felony murder

without specific intent to kill, a crime

for which ‘no sentence of imprisonment

would be disproportionate ....'")

(citations omitted).

The fourth and final factor the

majority considers is "the evolution of

the laws and present sentencing

Standards." The majority states that

"societal standards have changed," and

"the modern trend in the law has been to

separate the crime of statutory rape from

other violent forms of rape, and

concomitantly to reduce the severity of

the sentence." What this statement

ignores, however, is that Harmelin allows

societal standards to change back. And,

by enacting the statutes at issue in this

case, the Arizona Legislature has

-A-41-

undoubtedly chosen to adopt a more severe

punishment than that espoused by the

“modern trend." Further, modern trends

are, at best, an elastic and subjective

standard by which to measure the

constitutionality of a sentence of

imprisonment under the eighth amendment.

Because Our inquiry is not whether

defendant's sentences comport with the

modern trend, but rather whether a

reasonable person might think them

proper, this court should, as Harmelin

instructs, leave the consideration of

modern trends to the legislature.

Harmelin, U.S. at : .

lll S. Ct. at 2703, 2706; see also

Lochner v, New York, 198 U.S. 45, 75-76,

25 S. Ct. 539, 546-47 (1905) (Holmes, J.,

dissenting) ("Some .. . laws embody

convictions or prejudices which judges

are likely to share. Some may not. But

a Constitution is not intended to embody

a particular [theory]. It is made for

-~A-42-

people of fundamentally differing views,

and the accident of our finding certain

opinions natural and familiar or novel,

and even shocking, ought not to conclude

Our judgment upon the question whether

statutes embodying them conflict with the

constitution of the United States.")

Likewise, the majority's comparison of

defendant's sentences to being sent to

the stocks, being flogged, or being

castrated--which all deal with severe

modes of punishment--is not helpful in

determining whether a severe term of

punishment is constitutional after giving

meaning to the eighth amendment by

reference to "the evolving standards of

decency that mark the progress of a

maturing society." What is helpful,

however, is to recognize that our

society, via the Arizona Legislature, has

determined that sexual intercourse

between a person who is at least 18 years

of age and a child is not in conformity

-A-43-

with our “standards of decency." While

it might be decent to some people or even

in some societies, ours has “progressed

and matured" to the point of condemning

such conduct.

The majority makes two other

comparisons which, although technically

correct, tell only half of the story.

First, the majority states that "“[t]Jhe

‘minimum' sentence[s] imposed in this

case .. . [are] comparable to the -

minimum sentence[s] imposable had

Defendant been provoked, become violent,

killed the girls, and been convicted of

[two counts of] second degree murder."

The rest of the story is that if this

hypothetical had played itself out, it is

more likely that the sentencing judgment

would have imposed the maximum sentences

of 60 years (25 years for the first count

and 35 years for the second count),

rather than the minimum sentences of

40 years (15 years for the first count

-A-44-

and 25 years for the second count) as he

did in this case.+?

Second, the majority's statement that

"the people, through their legislature,

have adopted statutes under which the

courts impose comparable punishment[s] by

imprisonment for crimes such as violent

rape, second degree murder, and brutal

assault of children," is simply

inaccurate. Although it is true that the

range of punishment for the crimes

committed by defendant and the crimes of

violent rape, second degree murder, and

the brutal assault of children are the

Same, there is no evidence that “courts

impose comparable punishment" for these

offenses. Indeed, it is not only

counterintuitive to believe that courts

do so, it is inconsistent with the record

in this case, which suggests that the

reason the court imposed upon defendant

the minimum sentences imposable was

because of the relatively nonviolent

-A-45-

nature of his crimes. By comparing

defendant's sentences to a parade of

horrible and unsound “what ifs,” it is

the majority, not I, who fails to give

meaning to the eighth amendment by

reference to "the evolving standards of

decency that mark the progress of a

maturing society."

After revealing what I consider to be

fatal flaws in the majority's analysis

under Harmelin, I now advance what I

consider to be the appropriate

proportionality analysis as articulated

and conducted by Justice Kennedy. First,

we must conduct an inquiry to determine

whether "a threshold comparison of the

crime committed and the sentence imposed

leads to an inference of gross

Gisproportionality.” Harmelin, __ U.S.

et ..., 2244 G&. CEs GS 2PeT. In

conducting this inquiry, I believe that

we must look not at the facts or

particular circumstances of the crime,

-A-46-

but we must decide whether the

legislature could, with reason, conclude

that the threat posed to the individual

and to society by defendant's offenses is

momentous enough to warrant the

deterrence and retribution of the

sentences imposed. See Harmelin,

aeeces .» Lil &. Ct. et 2706. If

such a rational basis exists, then the

sentences imposed are not grossly

disproportionate to the severity of

defendant's crimes. Id.

While I do not know exactly what

factors the legislature considered in

enacting the Sexual Conduct with a Minor

Statute, A.R.S. § 13-1405, or adopting

the sentencing guidelines of the

Dangerous Crimes Against Children

Statute, A.R.S. § 13-604.01, I believe

that the sentences imposed in this case

are not grossly disproportionate to the

offenses committed in light of the threat

posed to the individual and to society by

-A-47-

engaging in sexual misconduct with

children.

Il. The Threat Posed to the Individual

The threat of harm posed to children

who become the victims of sexual

misconduct is significant. In

considering the statutes at issue in this

case, the legislature was presented with

and considered no less than 3 types of

individual harm: emotional, social, and

physical. Sexual Offenses; Child

Victinis: Hearings on §.B, 102] Before the

Comm. on Judiciary, 37th Leg., lst Sess.

1-15 (Feb. 18, 1985) (hereinafter Child

Victims).

Children who become the victims of

sexual misconduct often develop emotional

problems. One mother testified that as a

victim of sexual misconduct, her daughter

"has behavioral problems and worse of

all, she has stated, '. . . I never want

to grow up because adults don't do fun

things.'" Child Victims, supra, at 9.

-~A-48-

In addition, children who are the victims

of sexual misconduct often engage in

misconduct as adults. See, e.g., State

v. Atwood, AEE

,

P.2d , (1992) (defendant

molested as child engaged in sexual

misconduct as adult). Concomitantly,

Children who suffer from emotional

problems often suffer in their social

relationships.

History has taught us that children who

become the victims of sexual misconduct

are many times physically harmed and even

murdered by their attackers to eliminate

the children as witnesses. See, e.g.,

Child Victims, supra, at 9 (mother

testified that daughter had been

victimized by man who told her that if

she told anyone he would kill her and her

mother); Atwood, Ariz. at . »

_ P.2d at , (defendant convicted of

murdering 8-year-old girl had told friend

he “had considered ‘picking up' another

-A-49-

Child and that ‘this time he would make

Sure the child wouldn't talk'"); State v.

Beaty, 158 Ariz. 232, 762 P.2d 519 (1988)

(defendant sexually molested and murdered

13-year-old child); State v. Castaneda,

150 Ariz. 382, 724 P.2d 1 (1986)

(defendant sexually molested and murdered

12-year-old child); State v. Roscoe,

145 Ariz. 212, 700 P.2d 1312 (1984)

(defendant sexually molested and murdered

7-year-old chila).+4 Not quite so

traumatic, but physical harm nonetheless,

is the pain suffered by the children

during and after the sexual misconduct.

Finally, sexual misconduct subjects

Children to diseases such as AIDS, and

unwanted pregnancy.

Iii. The Threat Posed to Society

During the hearings on the statutes at

issue in this case, Jim Skelly, the

Chairman of the House Judiciary

Committee, made the following statement:

-~A-50-

Crimes against children have

increased by epidemic proportions

not only in the State of Arizona

but throughout our Nation.

According to an article in the

Arizona Republic, February 17,

1985, child abuse has increased

35 percent nationally in the last

year. Current figures for the

City of Phoenix show that in 1984

as compared to 1983, assaults and

aggravated assaults against minors

increased by 36 percent, and

although rape against minors

decreased by four percent, other

sex [offenses] against minors

increased by 18 percent. It is

not necessary to reiterate to you

the tragic happenings in Tucson

and Tempe. It is important to

note that Frank Jarvis Atwood has

a long history of child

molestation and has been released

on parole after only serving a

short sentence. In addition,

Mr. Castaneda was also released on

parole and we all know what

happened to the little Perry boy.

I think it is timely that this

month's Reader's Digest printed an

article entitled, "Why Do We

Tolerate These Crimes Against

Children?"

Child Victims, supra, at 2. Chief

Assistant Attorney General Steven J.

Twist also recognized that "crimes

against Children have made many of our

urban centers uninhabitable and cause

-A-51-

many of us to have fear and frustration

over the criminal justice system." Child

Victims, supra, at 3.

In addition, the mother of an 8-year-

Old girl who has been abducted and

murdered by a convicted child molester

emphasized the anguish and grief suffered

not only by the victim's family but also

by the victim's friends and classmates.

Child Victims, supra, at 14. That same

mother stressed "It is time we realize we

need to protect our children because they

are our future. If we do not protect our

children, what will it be like fifteen

years from now?" Id,

In concluding that Harmelin's sentence

was not grossly disproportionate to the

severity of his crime, Justice Kennedy

recognized that the "“[p]Jossession, use

and distribution of illegal drugs

represents one of the greatest problems

affecting the health and welfare of our

population.'" Harmelin, _ U.S. at ,

-A-52-

lll S. Ct. at 2705 (citation omitted).

In concluding that defendant's sentences

are not grossly disproportionate to the

severity of his crimes, I would recognize

that sexual offenses against children

represent a similar problem. In other

words, I believe a rational basis exists

for defendant's sentences.

Because I find that defendant's

sentences are not grossly

disproportionate to the severity of his

crimes, no intra- or inter-jurisdictional

proportionality review is appropriate.

Harmelin, _._ U.S. at ___, 111. Ct.

at 2707. Similarly, because this court's

analyses of art. 2, § 15 of the Arizona

Constitution have consistently been

identical to analyses of its federal

counterpart, I believe that no

independent analysis of the state

constitution is appropriate. See, e.gq.,

State v. Mulalley, 127 Ariz. 92, 95-97,

618 P.2d 586, 589-91 (1980), overruled on

-A-53-

eS ee

other grounds, State v. Noble, 152 Ariz.

284, 731 P.2d 1228 (1987); State v.,

Davis, 108 Ariz. 335, 337-38, 498 P.2d

202, 204-05 (1972).

IV. Conclusion

The result in Harmelin is that a

defendant in Michigan may

constitutionally be sentenced to life

imprisonment without possibility of early

release for a first felony conviction of

possession of more than 650 grams of

cocaine. From that result, it seems

clear that the Arizona Legislature has

the constitutional authority to require a

23-year-old defendant on a first

conviction who has had sexual intercourse

with two different 14-year-old girls to

be imprisoned for a total of 40 years

without possibility of early release.

I read Harmelin as reinforcing

society's declaration of war against

drugs. In light of Harmelin, I believe

that the Arizona Legislature is entitled

-A-54-

to declare war against the sexual abuse

of children.

Robert J. Corcoran, Justice

MOELLER, J., dissenting

I agree with Justice Corcoran's

dissent. The United States Supreme Court

remanded this case to us to reconsider in

light of Harmelin. Putting aside the

difficulties of interpreting every nuance

of Harmelin, one fact is

incontrovertible: the United States

Supreme Court held that Michigan may

constitutionally impose lifetime

imprisonment without possibility of

parole upon a first-time offender for

possession of 650 grams of cocaine. That

being the case, I fail to understand why

Arizona may not constitutionally impose a

“flat" fifteen-year term on an adult

convicted of sexual conduct with a minor

to be followed by a “flat"

twenty-five-year term for another

conviction for a similar offense with a

different minor.

Because our review is limited to the

constitutionality of the sentence, rather

~A-56-

than to its wisdom, I believe we are

compelled to affirm the original

sentence. The majority's arguments,

including those relative to "the

realities of adolescent life" (majority

Opinion at 14), are appropriately

addressed to the legislature, which is

Charged with the responsibility of

determining the wisdom of the

punishment. Our role is much more

limited -- we may only determine whether

the punishment is constitutional. In my

Opinion, Harmelin teaches that it is.

James Moeller

Vice Chief Justice

-~A-57-

APPENDIX

Because Our opinion in Bartlett I was

vacated by the United States Supreme

Court, we reproduce here the intra- and

inter- jurisdictional comparisons we

conducted there.

Part I

sentences Imposed for

Other Crimes In Arizona

quoting Bartlett I, 164 Ariz

at 236-37, 792 P.2d 699-700

We next examine the sentences imposed

in Arizona on defendants who commit

Crimes more serious than this

defendant's. Solem, 463 U.S. at 292,

103 S.Ct. at 3010; Jonas, 164 Ariz.

at 249, 792 P.2d at 712. We have

previously disapproved the practice of

comparing only those crimes encompassed

within the challenged sentencing statute

to conclude that the punishment is

proportionate because all crimes within

the statutory scheme receive the same

penalties. See Jonas, 164 Ariz.

at 249-250, 792 P.2d at 712-713,

disapproving the analysis in State v.

Smith, 156 Ariz. at 526, 753 P.2d

at 1182, and State v. Crego, 154 Ariz.

at 280, 742 P.2d at 291.

However, a comparison of the other

Crimes punishable under the same

mandatory sentencing provisions of A.R.S.

§ 13-604.01 is helpful in this case to

show that more serious offenses do not

receive any greater punishment. For

example, second degree murder, forcible

sexual assault, taking a child for the

purposes of prostitution or involving a

child in a drug offense are all

considered first degree crimes against

children, subject to the same mandatory

minimum sentences of 15 and 25 years that

defendant received. A.R.S.

§ 13-604.01(A), (D). More potentially

serious crimes than those committed here,

such as aggravated assault, child

molestation, child abuse, or kidnapping,

-A-59-

icant hia

are subject to a lesser minimum sentence

of 12 years for the first offense and

23 years for the second offense. See

A.R.S. § 13-604.01(B), (D).

Other more serious crimes that do not

involve children similarly receive lesser

penalties than those mandated in this

case. Class 2 felonies not involving a

dangerous weapon or threatened physical

injury are punishable for a first offense

with a minimum term of 5.25 years, a

presumptive term of 7 years, and a

maximum of 14 years, with early release

potentially available after only half the

sentence has been served. A.R.S.

§§ 13-701, -702. Such first-time

offenders are eligible for probation, or,

if imprisoned, can earn early release

credits of 1 day for each 2 days served.

A second offense carries a minimum term

of 7 years, a presumptive term of

10.5 years, and a maximum of 21 years,

with early release potentially available

-A-60-

after two-thirds of the sentence has been

served. A.R.S. §§ 13-701 -702, -604(B).

The first and second sentences are

presumed to run consecutively but the

trial court has discretion to make them

concurrent by stating its reasons on the

record. A.R.S. § 13-708. Included

within this scheme of punishment for

Class 2 felonies are the following

Crimes, all potentially more serious than

the offenses committed by this defendant:

kidnapping, A.R.S. § 13-1304; sexual

assault of an adult, A.R.S. § 13-1406;

first degree burglary of a residential

Structure, A.R.S. § 13-1508; and arson of

an occupied structure, A.R.S. § 13-1704.

Additionally, manslaughter, a class 3

felony, A.R.S. § 13-1103, is punishable

with a minimum sentence of 3.75 years, a

presumptive term of 5 years, and a

maximum term of 10 years. A.R.S.

§ 13-701(C)(2), -702(B).

-A-61-

ELEC ll

We also compare the circumstances under

which other defendants have been

subjected to the same mandatory

sentencing scheme. In State v. Taylor,

we upheld an aggregate prison term of

2,975 years for 85 counts of dangerous

Crimes against children. 160 Ariz. 415,

773 P.2d 974 (1989). In that case, the

defendant performed and photographed

various sexual acts with children aged

from 18 months to 8 years old, and many

other unidentified small children. He

also had a prior criminal history of sex

Crimes with young children in two other

states. We recognized the “irreparable

harm which he has caused to the normal

development of numerous children," and

his inability “to control his proclivity

for sexual conduct with children" as

important factors justifying the

harshness of the sentence. Taylor,

160 Ariz. at 423, 773 P.2d at 982. In

State v. Crego, the court of appeals

-~A-62-

upheld two consecutive 20-year prison

terms for a defendant who molested

3 different victims under age 15 a few

months after he had been released from

prison for a similar offense, and while

he was on parole. 154 Ariz. at 279,

742 P.2d at 290. In State v. Smith, the

court of appeals also upheld a mandatory

prison sentence of 91 years for a

defendant who repeatedly molested a

10-year-old boy and photographed the

numerous incidents on approximately

60 occasions. 156 Ariz. at 520, 753 P.2d ‘

at 1176. Defendant also points out other

cases in which harsh sentencing

provisions were appropriately applied in

Situations involving repeated and cruel

sexual offenses against small children.

See, e.g., State v. Cummings, 148 Ariz.

988, 716 P.2d 45 (App. 1985) (defendant,

a scoutmaster, performed multiple acts of

Oral and anal sex on 12- to 13-year-old

male victims; was sentenced to

-A-63-

hint

5 concurrent prison terms ranging from

7 to 15.75 years); State v. O'Neill,

is meee. 243, 372°9.20 Lisi (iss T)

(defendant, while babysitting, molested a

two-year-old infant, resulting in a tear

between her vagina and rectum; was

sentenced to 20 years to life). These

and other cases stand in stark contrast

to the circumstances under which this

defendant was sentenced in this case.

We conclude that a comparison of the

punishments imposed for other crimes in

Arizona reveals the disproportion with

which defendant was sentenced under these

factual circumstances.

Part II

Sentences Imposed for the

Same Crime In Other States

quoting Bartlett I, 164 Ariz.

at 237-40, 792 P.2d 700-03

We also examine the punishment imposed

for the same crime in other

jurisdictions. Solem, 463 U.S. at 292,

103 S.Ct. at 3010. This comparison 1s

-A-64-

difficult because the offenses defendant

committed are chargeable as a broad

variety of crimes with varying

punishments. However, we have attempted

to compare penalties for the crimes

closest to those committed here:

consensual, nonincestuous, heterosexual

intercourse with a 14-year-old.

Additionally, we compare each of

defendant's sentences individually,

keeping in mind that the 15-year sentence

was imposed for a first offense, and that

the 25-year sentence was imposed for a

second offense. We also consider only

those sentences imposed for a defendant

with no prior felony convictions, other

than the first offense used as an

enhancement factor for the second

offense. Our focus is necessarily on the

mandatory minimum sentences imposed in

wae jurisdictions, because that is what

defendant received here. We do not

¢

consider significant the state's argument

-A-65-

that defendant could have received

maximum sentences in other jurisdictions

greater than the minimums imposed in this

case because the record clearly indicates

that the trial court did not find

aggravating factors justifying maximum

sentences under these circumstances.

(1) 15-year Sentence for First Offense

In 10 jurisdictions, defendant's

offenses would either not be a crime or

would be punishable only as a misdemeanor

with a sentence of less than one year

and/or a fine.+> For a first felony

offense in the remaining jurisdictions,

defendant would have faced a minimum

penalty of one, two, or three years,+°

with probation often available. Thus,

Our statute is unigue among all

jurisdictions in that it imposes a

minimum mandatory term of 15 years, which

is 5 times higher than that imposed in

any other jurisdiction. In all

jurisdictions but Arizona, the sentencing

-A-66-

judge has a wide range of discretion in

imposing a sentence at the bottom of the

Statutory range that fits the individual

Circumstances of the crime. Although the

maximum allowable sentence in some

jurisdictions would have fallen within

the range of sentencing provided for a

first offender under A.R.S.

§ 13-604.01(A), in no Jurisdiction would

the sentencing judge be required to

impose a sentence of more than 3 years

for the identical offense. Thus, our

legislature has mandated a penalty

potentially disproportionate to an

individual criminal act or defendant.

See J. Howe, Thoughts on Mandatory

Sentencing, Ariz. Bar J. June-July 1985,

at 24-25.

Such potential disproportionality is

not enough to allow us to find

defendant's sentences cruel and unusual.

See State v, Taylor, 160 Ariz. 415,

773 P.2d 974 (1989) ("Although on the

-A-67-

hele

national spectrum Arizona deals with

Crimes against children more severely

than many other states, ‘[t]he Eighth

Amendment is not violated every time a

state reaches a conclusion different from

a majority of its sisters over how to

best administer its criminal laws.'

Spaziano v, Florida, 468 U.S. 447, 464,

104 S.Ct. 3154, 3164, 82 L.Ed.2d 340, 355

(1984)"). Such potential differences in

sentencing are "a mark of federalism, not

unconstitutionality." State v. Bishop,

717 P.2d 261, 272 (Utah 1986).

In this case, however, the potential

disproportion between the sentences

defendant received and those sentences

actually imposed on other similarly

situated defendants in other

jurisdictions is actual. Defendant has

supplied us with a myriad of examples in

the published case law of other

jurisdictions. A few representative

citations illustrate this point:

-A-68-

Diefenderfer v. State, 745 P.2d 556 (Wyo.

1987) (defendant pleaded guilty to third

degree sexual assault of a girl under 14;

the execution of his sentence of 3 to

5 years Suspended and 4 years probation

imposed); State v. DeJesus, 10 Conn. App.

991, 524 A.2d 1156 (1987) (defendant

pleaded guilty to second degree sexuai

assault of a 14-year old; sentence of

9 years upheld); State v, LaBorde,

234 La. 28, 99 So.2d 11 (1958) (defendant

convicted of carnal knowledge of 14-year

old; sentenced to one year, 9 months);

State v,. Smart, 147 La. 174, 170 So.2d

365 (1965) (defendant convicted of carnal

knowledge of a 13-year old; sentenced to

3 years); State v. Rodriguez, 179 N.J.

Super. 129, 430 A.2d 957 (1981)

(defendant convicted of sexual assault of

a l3-yeer old; sentenced to 4 years);

State v. Newell, 82 N.C. App. 707,

348 S.E.2d 158 (1986) (defendant

convicted of taking indecent liberties

-A-69-

with a consenting child between 13 and

16; sentenced to 3 years); State v.

Hartman, 145 Wis.2d 1, 426 N.W.2d 320

(1988) (defendant convicted of statutory

rape of a 14-year old; sentenced to a

term of not more than 3 years, but

suspended and defendant placed on

probation with 6 months in county jail

work release program). Additionally,

defendant's appellate counsel has avowed

to the court that he “has diligently

search [sic] two centuries of case law of

each of our 50 sister states. This

required the review of just over

1,600 cases. Not one case was found

where a similarly situated defendant

received an aggravated sentence remotely

comparable to that imposed as a mandatory

minimum upon Mr. Bartlett."

Given this authority, we conclude that

the mandatory minimum sentence imposed on

defendant for his first offense was

disproportionate to sentences received by

-A-70-

Similarly situated defendants in other

Jurisdictions.

(2) 25-year sentence for second offense

A comparison of the 25-year mandatory

minimum sentence defendant received for

the second offense with those imposed in

other jurisdictions is complicated by the

enhancement of defendant's second

sentence because the first count was

treated as a prior predicate felony.

Most jurisdictions punish repeat

offenders more stringently, and

enhancement of penalties on the basis of

prior offenses has been consistently

upheld against eighth amendment attacks.

see, €.g., Rummel, 445 U.S. at 276,

100 S.Ct. at 1140; Cocio v. Bramlett,

872 F.2d 889, 893 (9th Cir. 1989).

However, we are mindful that the

legislature, in requiring a 25-year

minimum sentence for a second offense

implicitly assumed that it was enhancing

a constitutionally proportionate minimum

sA-71-

sentence of 15 years for a first ‘

offense. We have already found the

minimum sentence for the first offense to

be disproportionate to the facts of this

case. Additionally the “prior” felony in

this case was one for which defendant was

simultaneously tried and sentenced with

the second offense, a factor not existing

in other jurisdictions. See A.R.S.

§ 13-604(H).

Also complicating our analysis is the

mandatory consecutive nature of the two

sentences along with the absence of the

availability of parole. We have pre-

viously refused to find the consecutive

nature of two sentences for two separate

crimes to be a factor that would render

the second sentence disproportionate.

Jonas, 164 Ariz. at 249, 792 P.2d

at 712. We thus do not consider that

factor here. a? Nonavailability of

parole, however, is a factor in

determining proportionality, although the

== 72+

absence of parole, in itself, dves not

make a sentence disproportionate. Solen,

463 U.S. at 297 and n.24, 103 S.Ct.

at 1151 and n.24; Jonas, 164 Ariz.

at 249, 792 P.2d at 712. In this case,

the absence of parole availability

requires us to reconsider that defendant

will serve the entire 25-year sentence

for the second offense.

Despite these difficulties a comparison

of what penalties defendant would face

for a second offense in other

jurisdictions, although not as clear as

the comparison for a first offense,

compels the conclusion that defendant

would be subject to a much lighter

minimum mandatory sentence for his second

offense in all but one state.

In Nebraska, defendant would be subject

to a statutory range of 25 to 50 years

for a second conviction of sexual assault

involving a consenting child less than

16 years old, and would not be eligible

ash=-F3~

for parole. Neb. Rev. Stat.

§ 28-319(1)(c), (3). However, as the

United States Supreme Court notes in

Solem v. Helm, a finding that a defendant

would have received an identically harsh

sentence in one other state is also a

clear indication that he "could not have

received such a severe sentence in 48 of

the 50 states." 463 U.S. at 299,

193 S.Ct. at 3014 (emphasis saded).

Furthermore, we have not been advised by

the state of any defendant charged in

Nebraska with offenses similar to

Bartlett's actually receiving such a -

harsh sentence. Rather, the published

cases that we have found challenging the

mandatory Nebraska sentence for a second

offense have involved more heinous

offenses, including forcible rape with

serious physical injuries to the victim.

See, e.g., State v. Brand, 219 Neb. 402,

363 N.W.2d 516 (1985) (defendant received

35-year sentence for his second

-A-74-

conviction of first-degree sexual assault

#nvolving the use of force; sentence

found not disproportionate to crime).

Under these circumstances, we cannot find

the 25-year mandatory minimum sentence

for defendant's second offense to be

proportionate merely on the basis of the

Nebraska statute.

Except for Nebraska, no other

jurisdiction imposes a mandatory minimum

sentence of more than 10 years for a

second offense similar to defendant's.

In no jurisdiction did we find the

particularly harsh combination of

provisions present here including both

mandatory consecutive sentencing and

nonavailability of parole. We must

conclude, therefore, that the 25-year

mandatory minimum imposed for defendant's

second offense is also disproportionate

to the sentence imposed on similarly

Situated defendants in other

Jurisdictions.

~A=75~-

Based on the above analysis, we hold

that defendant's sentences of 15 years

for the first offense and 25 years for

the second offense are disproportionate

to the crimes he committed under the

specific facts of this case, and thus

violate the eighth amendment proscription

against cruel and unusual punishment.

This is a narrow holding limited to the

facts and circumstances of this case.

The Supreme Court has said that

successful challenges to the

proportionality of particular sentences

are “exceedingly rare.” Solem, 463 U.S.

at 289-90, 103 S.Ct. at 3009. This is

such a rare case.

-A-76-

END NOTES

1 While Justice Scalia stated that

Solem was wrong, _ U.S. at __,

111 S.Ct. at 2686, he did not say -- and

could not, given only Chief Justice

Rehnquist's concurrence -- that it was

overruled.

2 The vast majority of federal and

state courts that have assessed the

validity of the Solem proportionality

analysis in the wake of Harmelin have

applied or assumed the validity of at

least the gross disproportionality

standard advocated by Justice Kennedy.

See United States v. 38 Whalers Cove

Drive, 954 F.2d 29 (2nd Cir. 1992)

(applying Solem analysis); United States

v. Gordon, 953 F.2d 1106 (8th Cir. 1992)

(conducting review based on Justice

Kennedy's opinion in Harmelin); Tart v.

Massachusetts, 949 F.2d 490, 503-04 &

n.16 (lst Cir. 1991); United States v.

Salmon, 944 F.2d 1106, 1130-31 (3rd Cir.

1991), cert. denied, ____—iU.S. ’

112 S.Ct. 1213 (1992); United States v,

Hopper, 941 F.2d 419, 422 (6th Cir.

1991); United States v. Jones, 950 F.2d

1309, 1317 (7th Cir. 1991); United States

v. Contreras, 937 F.2d 1191, 1195-96 &

n.3 (7th Cir. 1991); United States v.

Manuel, 944 F.2d 414, 417 (8th Cir.

1991); United States v. Johnson, 944 F.2d

396, 408-09 (8th Cir.) (no further

analysis undertaken unless sentence

grossly disproportionate to crime), cert,

denied, U.8:. —.5 S22. Beccee Oe

(1991); United States v. McLean, 951 F.2d

I300, 1303 (D.C. Cir. £991) (°Rignen

Amendment's proportionality principle

applies to noncapital sentences"); United

States v. Curtis, 33 M.J. 101, 108 n.9

(C.4.A. 1991), cert. Genied, ... U.S. ;

112 S.Ct. 1177 (1992); People v. Weddle,

ee

2 (continued)

2 Cal. Rptrc.24 714, 7iS-27 & Bsd COE.

App. 1991) (discussing difficulty in

interpreting multiple opinions in

Harmelin); People v. Gaskins, 825 P.2d

30, 34 n.10 (Colo. 1992); Isom v. State,

408 S.E.2d 701, 702-03 (Ga. 1991); State

v. Brown, 825 P.2d 482, 491 Sgn

1992). See also United States

Thompson, 944 F.2d 1331 (7th Cir 1991)

(would not address whether standard is

disproportionality or gross dispro-

portionality since under the

circumstances sentence was neither),

cert. denied, v.80. ...» San Dates

1177 (1992); United States v. California

Publishers Ligquidating Corp., 778 F.Supp.

1377, 1387 (N.D. Texas 1991); State v.

Cavanaugh, 1991 WL 170184, at *2 (Conn.

Super.) (sentence not inappropriate or

disproportionate given nature of offense,

character of offender, public interest

protected, and deterrent purpose of

sentence), cert. denied, 598 A.2d 1100

(Conn. 1991).

Inceed, only a handful of courts and

judges have expressed the view that

Harmelin overruled Solem. See United

States v. LaFleur, 952 F.2d 1537, 1547

(9th Cir. 1991) (citing Harmelin for

proposition that eighth amendment does

not require assessment of appropriateness

- sentence in noncapital cases); People

._ Knott, 586 N.E.2d 479, 497 (I11l. App.

1991) ("Solem v, Helm was expressly

overruled in Harmelin”). See also

State v. Ortega, 817 P.2d 1196, 1220

(N.M. 1991) (Baca, J. concurring in part

and dissenting in part) (Harmelin “has

cast doubt on the vitality of Solem”).

We believe these courts misinterpret

Harmelin.

«Ae 7E-

2 (continued)

Finally, several cases have either

applied Harmelin'’s holding that mandatory

sentencing is not unconstitutional merely

because it is mandatory, or affirmed

sentences under Harmelin's result by

comparing sentences to the sentence

approved in Harmelin, most commonly in~™

drug cases. See United States v. Lowden,

955 F.2G0 i286 (ist Cis. 1992); testes

States v. Kramer, 955 F.2d 479, 488 (7th

Cir. 1992); United States v. Knapp,

955 7.20 566, 570 (6th Cir. i992)

(defendant's claim that sentence for

participation in drug conspiracy was

cruel and unusual punishment "simply

lacks merit"); United States v.

Campusano, 947 F.2d 1, 4 (lst Cir. 1991)

(mandatory sentencing not cruel and

unusual punishment); United States v.

Torres, 941 F.2d 124 (2nd Cir. 1991);

United States v. Pickett, 941 F.2d 411

(6th Cir. 1991); United States v. Dunson,

940 F.2d 989 (6th Cir. 1991), cert.

denied, 0.8. —» 242 2.8. 2486

(1992); United States v. Harvey, 946 F.2d

1375 (8th Cir. 1991); United States v.

Van Winrow, 951 F.2d 1069, 1071 (9th Cir.

1991); State v. Smith, 1991 WL 215646,

at *3 (Del. Super.) (severe mandatory

sentences not cruel and unusual under

Harmelin), appeal dismissed, ____ A.2d

__, 1991 WL279846 (Del. 1991); Leftwich

v. State, 589 So.2d 385 (Fla. App. 1991)

(prisoner smuggling marijuana into

prison). See also State v, Hermann,

474 N.W.2d 906, 911 (Wis. App.) (citing

Harmelin and concluding that sentence for

drug conviction was not “shocking to the

public sentiment"), review denied,

477 N.W.2d 286 (Wis. 1991).

~A-79~

3 At the same time, we believe that

under the views of four members of the

Court (Justices White, Blackmun, Stevens,

and Marshall), the Solem analysis we

employed in Bartlett I would stand, and

that the result we reached would

presumably be valid.

It is also worth noting that we

expressly considered in Bartlett I many

of the principles identified by Justice

Kennedy, including the properly

legislative function of fixing sentences

for specific crimes, Harmelin, U.S.

at , £22 -8.Ct.. at. 2703, end tue carity

of finding disproportion because “we lack

clear objective standards to distinguish

between sentences for different terms of

wears .* J@. @t 22 344 S.Ct s. Bt 270o%

Accord. Bartlett I, 164 Ariz. at 233,

792 P.2d at 696 (legislature has “broad

authority . . . in determining the types

and limits of punishments for crimes”)

(quoting Solem, 463 U.S. at 290,

103 S.Ct. at 3009); id. at 240, 792 P.2d

at 703 ("The Supreme Court has said that

successful challenges to the

proportionality of particular sentences

are ‘exceedingly rare.' Solem, 463 U.S.

at 289-90, 103 S.Ct. at 3009. This is

such a rare case."). We adhere to those

principles in this opinion.

4 We use fictitious names for the

teenage girls. See Bartlett I, 164 Ariz.

at 230 n.1, 792 P.2d at 693 n.1l.

) The current text of § 13-1405(B)

makes sexual conduct with a minor under

fourteen a class 2 felony punishable

pursuant to § 13-604.01. The statute was

amended in 1990; at the time Defendant

committed his crime, the relevant age was

fifteen. See 1990 Ariz. Sess. Laws,

ch. 384, § 2.

~A+80-

6 In examining the facts of the crime

and the criminal, we do not, as argued by

the dissent, apply Solem instead of

Harmelin. Dissent at 23 (Corcoran, J.).

We do not allude to Bartlett I because it

is a “comprehensive and lucid application

of Solem," dissent at 23 (Corcoran, J.),

but, rather, because it contains a

"comprehensive" analysis of Defendant's

offenses. That analysis was repeated

ante because we read ‘Justice Kennedy's

opinion in Harmelin to mean that it is

the circumstances of the crime and the

Criminal that must be considered in

determining gross disproportion. As the

dissent concedes, this approach is

consistent with the analysis articulated

by Justice Kennedy. Dissent at 24

(Corcoran, J.).

Nor is that dissent correct in

arguing that five justices rejected

consideration of the particularized

Circumstances of the crime and the

Criminal in determining the question of

dispronortionality. See dissent at 25

(Corcoran, J.) (quoting Harmelin,

U.S. at «+ £113-8.0t. Ot 2706). The

quoted and cited portions of Harmelin are

from Justice Scalia's opinion and relate

to the alleged facial invalidity of

mandatory sentencing schemes; the Court

held that a statute was not

unconstitutional on its face merely

because the sentencing judge could not

consider the facts of the crime. This

defendant does not raise that issue. The

question here is whether the severity of

the punishment, as compared to the facts

of the crime, is grossly

disproportionate. See Harmelin, __ U.S.

at RAE Bees OC. 270s:

-A-81-

7 The dissent misinterprets our use of

the word “uncommon." We do not use the

word because “we believe" the crime

“should not be considered severe."

Dissent at 26 (Corcoran, J.). We use it,

quoting Justice Corcoran from Bartlett I,

because it accurately characterizes the

type of behavior under examination and

helps to distinguish it from more serious

crimes.

8 We refer again to the trial judge's

lack of discretion, not to suggest that

the resulting sentence was cruel and

unusual because mandatory, but to explain

why the trial court did not take the

circumstances we have identified as

diminishing the gravity of Defendant's

Crimes into account in sentencing.

Indeed, a defendant is not

constitutionally entitled to

individualized sentencing in noncapital

cases. Harmelin, — U.S. at __,

111 S.Ct. at 2701-02. This, however,

does not alter the requirement that the

sentence actually imposed not be cruel

and unusual, and the relevant

circumstances must obviously be taken

into account in making that determination.

9 For more recent cases -- cited here

as examples and not as precedent, see

Rule 28(c), Ariz.R.Civ.App.P., 17B A.R.S.

-- see State v. DeCrow, No. 1 CA-CR

90-1231 (Ct. App. Nov. 5, 1991)

(twenty-year sentence imposed where

defendant “brutally raped his minor

stepdaughter, he engaged in sexual

conduct with the victim for two years and

the victim not only suffered physically

but will continue to suffer emotionally

as a result of his conduct"); State v.

Lyon, Nos. 2 CA-CR 90-0556 and -0557

(consolidated) (Ct. App. Aug. 22, 1991)

(twenty-year sentence for sexual conduct

-A-82-

eset aaa i

9 (continued)

with defendant's twelve year-old

stepdaughter, sexual indecency with

stepson, and child abuse of second

stepdaughter); State v. Flores, 2 CA-CR

90-0035 and 91-0245-PR (consolidated)

(Ct. App. Aug. 27, 1991) (twenty-year

sentence, to be served “day-for-day," for

violent rape of a fourteen year-old

victim and then assisting an accomplice's

rape of the victim).

These cases also illustrate that,

contrary to the dissent's claim, see

dissent at 30 (Corcoran, J.), our courts

have imposed lesser or comparable

sentences for more serious crimes.

10 The state argued in Bartlett I, and

argues again now, that Defendant's

sentence is similar to that which he

could have received in many

jurisdictions, and refers this court to a

Chart summarizing the sentencing

provisions in other jurisdictions. We

appreciate the difficulty inherent in

comparing sentences when the definition

of crimes varies so widely among

jurisdictions, and recognize the

Challenge in summarizing this information

succinctly yet accurately; nevertheless,

we must be able to rely with confidence

On a party's assessment of the crimes and

the accompanying sentencing schemes

relevant to our comparison. The state's

Chart is of limited utility in this

regard. For example, the state's chart

includes Utah as a state in which

Defendant could have received a similar

sentence under the relevant recidivist

statutes. Our research, however,

Suggests that in Utah under the

circumstances of this case Defendant

could have been sentenced to at most five

years in prison and a $5,000 fine on each

-A-83-

10 (continued)

of two counts of unlawful sexual

intercourse, a third degree felony, and

that the habitual sex offender statutes

apply only to offenses committed after a

defendant has been convicted of a prior

sex offense. See Utah Code Ann.

§§ 76-3-203(3) (felony sentencing),

76-3-301 (fines), 76-3-407 and 76-3-408

(habitual sex offenders), 76-5-401

(unlawful sexual intercourse not

amounting to rape, 76-5-406

(circumstances rendering consent

ineffective for purposes of rape) (1990).

ll see, e.g., State v. Mulalley,

127 Ariz. 92, 96, 618 P.2d 586, 590

(1980).

12 Like the majority, I believe that

Justice Scalia and Chief Justice

Rehnquist would prefer Justice Kennedy's

approach to the dissenters' adherence to

Solem.

13 Moreover, if defendant had been

“provoked, become violent [and] killed

the girls," after having sexual

intercourse with 13 (continued)

them, he would have been subject to

minimum sentences totalling 90 years'

imprisonment without possibility of

parole. See A.R.S. § 13-604.01(A), (G)

(15 years for first count of sexual

misconduct with a minor, 25 years for

second count, and 25 years for each count

of second degree murder).

14 I am not saying that defendant's

Crimes were as severe as the crimes

committed in these cases. They were

not. Nor am I saying that defendant

should be sentenced to death, as was each

defendant in these cases. He should

not. I list these cases only to

-A-84-

14 (continued)

illustrate the threat posed to children

who become the victims of sexual

misconduct.

15 See Ark. Stat. § 5-14-106 (third

degree carnal abuse, a class A

misdemeanor); Cal. Penal Code § 261.5,

264 (unlawful sexual intercourse); Ga.

Crim. Code § 26-2010 (fornication); Haw.

Rev. Stat. § 707-732 (sexual abuse in the

third degree); Ill. Crim. Code § 11-4-1

(contributing to the sexual delinquency

of a child); Md. Ann. Code § 27-464C

(fourth degree sexual offense); Mo. Rev.

Stat. § 566.030 (not a felony; age of

consent is 14); Pa. Stat. Ann. § 18-3122

(not a felony; age of consent is 14);

S.C. Code Ann. § 16-3-655 (not a crime;

age of consent is 14); W.Va. Code Ann.

§ 61-8B-9(a) (sexual abuse in the third

degree).

16 Felony penalties for a first offense

in other jurisdictions include the

following sentencing ranges: Ala. Code

§ 13A-6-62 (2 to 20 years); Alaska Stat.

§8§ 11.41.434, 12.55.125 (1 to 10 years);

Colo. Rev. Stat. §§ 18-3-4-3, 18-1-105

(2 to 8 years); Conn. Gen. Stat.

§ 53a-71(a)(1), 53a-35a (1 to 10

years); Del. Code Ann. tit. 11 §§ 773,

4205 (3 to 30 years); Fla. Stat. Ann.

§§ 800.04, 775.082 (1 to 15 years); Idaho

Code §§ 18-6101, 18-6104 (1 year to

life); Ind. Code Ann. §§ 35-42-4-3(c),

35-50-2-6 (2 to 8 years; Iowa Code

§ 709.4 (1 to 10 years); Kan. Crim. Code

Ann. '' 21-3503, 21-4501 (3 to 20 years);

Ky. Rev. Stat. Ann. § 510.060 (1 to

5 years); La. Rev. Stat. Ann. § 14:80

(1 to 10 years); Me. Rev. Stat. Ann. tit.

17-A, §§ 254, 1252(2)(D) (1 year); Mass.

Gen. Laws Ann. Ch. 265, § 23 (1 year to

life); Mich. Comp. Laws § 28.788(4)(a)

-A-85-

16 (continued)

(1 to 15 years); Minn. Stat. Ann.

§ 609.344 (1)(b)(2) (1 to 15 years);

Miss. Code Ann. § 97-5-21 (1 to

10 years); Mont. Code Ann.

§ 45-5-503(3)(a) (2 to 40 years); Nev.

Rev. Stat. §§ 200.364(3), 200.368(1)

(1 to 10 years); N.H. Rev. Stat. Ann.

§§ 632-A.3, 651:2 (1 to 7 years); N.Jd.

Rev. Stat. §§ 2C:14-2(c)(5), 2C:43-6,

a(2):(20 to 10 years); N.M. Stat. Ann.

§§ 30-9-13(B), 31-18-15 (1 to 2 years);

N.Y. Penal Law §§ 130.25, 70.00, subc.

2(e) (1 to 4 years); N.C. Gen. Stat.

§§ 14.202.1, 14-1.1(a)(8) (1 to

10 years); N.D. Cent. Code §§ 12.1-20-03,

12.1-32-0l1, subd. 3 (1 to 15 years); Ohio

Rev. Code Ann. §§ 2907.04, 2929.11(D) (1)

(1 to 2 years); Okla. Stat. Ann.

§§ 1114(B), 1116 (1 to 15 years); Or.

Rev. Stat. §§ 163.355, 161.605 (1 to

5 years); R.I. Gen. Laws §§ 11-37-6,

11-37-7 (1 to 5 years); S.C. Codified

Laws § 22-22-1(5) (1 to 15 years); Tenn.

Code Ann. § 39-2-605 (1 to 5 years); Tex.

Penal Code Ann. § 22.011 (2 to 20 years);

Utah Code Ann. §§ 76-5-401(1),

76-3-203(3) (1 to 5 years); Vt. Stat.

Ann. tit. 13 § 3252 (1 to 20 years);

Wash. Rev. Code §§ 9A.44.079, 9.94A.310,

table 1 (1 to 5 years); Wis. Stat. Ann.

§ 940.225(2)(e) (1 to 10 years); Wyo.

Stat. Ann. §§ 6-2-304, 6-2-306(A) (iii)

(1 to 5 years); D.C. Code Ann.

§§ 22-2801, 24-203 (1 year to life).

17 we do not hold, however, that we

would never consider the requirement of

consecutive sentences to be a factor in

determining proportionality. This is

not, for example, a case in which

consecutive sentences were imposed on a

defendant who engaged in one single

course of conduct that resulted in

separate repetitive crimes with

-A-86-

17 (continued)

consecutive sentences. In such a case,

the comsecutive nature of the sentences

would perhaps be a factor in deciding

proportionality.

-A~$7

APPENDIX B

[Filed November 10, 1988]

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA, 2 CA-CR 88-0024

)

)

Appellee, ) Department A

)

) MEMORANDUM

) DECISION

)

)

)

)

a

Not for Publication

Rule 28(a)(2),

Rules of Civil

Appellate Procedure

JOSEPH BARTLETT, JR.,

Appellant.

APPEAL FROM THE SUPERIOR COURT OF

COCHISE COUNTY

Cause No. CR 87-00020

Honorable Richard A. Winkler, Judge

AFFIRMED

Robert K. Corbin, The Attorney General

by William J. Schafer III and

Vicki Gotkin Adler Phoenix

Attorneys for Appellee

David P. Flannigan Bisbee

Attorney for Appellant

LIVERMORE, Presiding Judge

In this appeal from a conviction of two

counts of sexual conduct with a minor

under age 15, the defendant contends that

oiaLe

his confession was involuntary and that

his forty-year sentence is unconstitu-

tionally excessive. We disagree and

affirm.

The facts surrounding the confession are

that the defendant came to the police

station with a friend because he had

learned that police had made inquiries

concerning him. In a short conversation

with an officer, defendant admitted the

acts leading to his convictions. He then

left the station. Because defendant was

not in custody, no Miranda warnings were

required. State v. Carrillo, 156 Ariz.

125, 750 P.2d 883 (1988). Because no

coercive police tactics were used, the

admissions were voluntary. State v.

Tucker, Aris. _. 759 #.2@-5729 (1366).

Defendant's argument that the long

sentence imposed for sexual conduct with a

minor violates the constitutional

proscription against cruel and unusual

=, oe

punishment has been twice rejected by this

court. State v. Smith, 156 Ariz. 518, 753

P.2d 1174 (App. 1987); State v. Crego, 154

Ariz. 278, 742 P.2d 289 (App. 1987). We

do so again. The remainder of his

argument is a heartfelt objection to the

consequences of mandatory sentencing on

the facts of this case. That is better

addressed to the legislature. We do not

believe courts have either inherent power

Or power under A.R.S. § 13-4037 to impose

a sentence below the statutory minimum.

Affirmed.

JOSEPH M. LIVERMORE, Presiding Judge

CONCURRING:

JAMES D. HATHAWAY, Judge |

LAWRENCE HOWARD, Judge

stun

APPENDIX C

Pn eg a eee

(Filed April 17, 1990]

IN THE SUPREME COURT OF THE STATE

OF ARIZONA

STATE OF ARIZONA Supreme Court

CR-88-0411-PR

Appellee,

Court of Appeals

Vv. 2 CA-CR 88-0024

JOSEPH BARTLETT, JR. Cochise County

CR-87-00020

Appellant.

)

)

)

)

)

)

)

)

)

) OPINION

)

Appeal from the Superior Court

of Cochise County

The Honorable Richard A. Winkler, Judge

REMANDED FOR SENTENCING

Memorandum Decision of the Court

of Appeals, Division Two

(filed Nov. 10, 1988)

VACATED IN PART

Robert K. Corbin, Attorney General

by Bruce M. Ferg, Assistant

Attorney General Tucson

Vicki Gotkin Adler, Assistant

Attorney General Phoenix

Attorneys for Appellee

David P. Flannigan

Attorney for Appellant Bisbee

ate

Robert F. Arentz, Cochise County Public

Defender

by James L. Conlogue, Deputy Public

Defender

Amicus Curiae for Cochise County Public

Defender Bisbee

Harrison, Harper, Christian & Dichter,

PsGs

by Stephen M. Dichter

Amicus Curiae for Arizona Attorneys for

Criminal Justice Phoenix

CORCORAN, Justice

Defendant Joseph Bartlett, Jr.

(defendant) petitions for review of the

court of appeals decision affirming his

convictions for two counts of sexual

conduct with a minor under 15 years of

age, class 2 felonies and dangerous

crimes against children, and the

resulting mandatory minimum consecutive

sentences totalling 40 years without _

possibility of early release. We granted

review to determine whether these

sentences constitute cruel and unusual

punishment and ordered the parties to

Lain

Submit supplemental briefing addressing

the following question.

1. Under the facts of this case,

is the mandatory sentence required

by A.R.S. § 13-604.01 so

disproportionately severe that it

violates those provision of the

state and federal constitutions

that prohibit cruel and unusual

punishment?

2. If the mandatory sentence

prescribed by the applicable

Statute is unconstitutional as

applied to the facts of the crime,

what is the proper disposition?

We have jurisdiction pursuant to Ariz.

Const. art. 6, § 12-120.24. For the

reasons that follow, we hold that the

sentences imposed are disproportionate to

defendant's crimes under the analysis

required by Solem v, Helm, 463 U.S. 277,

103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983),

and thus were unconstitutionally

imposed. We therefore remand the matter

for resentencing.

a ok

Factual and Procedural Background

In September 1986, defendant, then

23 years old, was introduced through a

mutual friend to a 9th grade student whom

we shall call Mary,? then 14 1/2 years

old. Defendant and Mary saw each other

every day in September, October, and

November, 1986, dated occasionally, and,

according to Mary, considered themselves

"boyfriend and girlfriend." In December

1986 Mary ran away from her father's

home, where she had been living, and

stayed with defendant for 4 days before

moving back to her mother's home. Mary

1. We will use fictitious names for

the two teenage girls involved in this

case. This is in accordance with our

policy of October 24, 1989, in which

the Chief Justice advised all

appellate judges “to avoid, where

possible, referring by name in

appellate opinions to individual

victims or witnesses who are minors or

victims of crimes, where naming them

would cause them danger or unnecessary

embarrassment. Referring by name

Should occur only where it is

absolutely necessary for clarity.

waitin

testified that she and defendant became

physically intimate sometime in December

1986, when she voluntarily had sexual

intercourse with him. At that time, Mary

was two months short of her 15th birthday.

During the fall of 1986, Mary

introduced defendant to her 14 1/2-year-

old friend, whom we shall call Susan.

Defendant lived in the same trailer park

as Susan, and Susan often ate lunch with

Mary and defendant at the parking lot

across the street from the high school

that Mary and Susan attended. Susan

testified that defendant did not act like

he was 23, but was “immature” in that he

behaved like and associated with young

teenagers. In early December 1986, Susan

went to defendant's home and voluntarily

had sexual intercourse with him; at the

time, Susan was 6 months short of her

15th birthday.

Mary terminated her relationship with

defendant around March 1987, when he

nitate

|! 7

admitted to “messing around" with some of

her friends. Susan did not continue her

sexual relationship with defendant after

the initial incident.

In January 1987, police responded to a

report of an accidental discharge of a

weapon at defendant's trailer park when

Susan's mother went looking for defendant

after learning of her daughter's sexual

encounter with him. The officers

confiscated the weapon. The mother filed

a complaint, alleging that defendant had

forcibly sexually assaulted her

14-year-old daughter. When defendant

heard from neighbors that police had

inquired about him at the trailer park,

he voluntarily went to the police station

to find out why they were looking for

him. Officer Robert Pearce invited

defendant into his back office to talk,

and informed defendant that the girl's

mother had reported his forcible sexual

assault of the 14-year-old. Defendant

actin

denied the mother's accusation and told

Officer Pearce that he and Susan had

consensual intercourse on one occasion,

which he alleged was initiated by Susan

when she came to his home. The officer

also asked about defendant's relationship

with Mary; defendant admitted that he had

consensual sexual intercourse with Mary

while they were dating. Officer Pearce

taped most of defendant's statements but

did not arrest defendant after the

interview.

Susan later recanted the account of

forcible sexual assault that she had told

her mother and admitted that she and

defendant had consensual sexual

intercourse. Based on the evidence that

defendant had sexual intercourse with two

14-year-old girls, he was charged with

two counts of sexual conduct with a minor

under the age of 15 years, class 2

felonies, and dangerous crimes against

ae ey Dm

children.” The state also filed a

motion to invoke enhanced punishment by

treating a conviction on one count as a

prior conviction for purposes of

enhancing the other, pursuant to A.R.S.

§ 13-604(H). See A.R.S. § 13-604.01(A),

(H).

Defendant pleaded not guilty® but did

not appear at trial. Both Mary and Susan

testified that their sexual conduct with

defendant was consensual and that

2 Defendant was also charged with

a third count of sexual conduct with a

minor aged 15 years, a class 6 felony,

involving a third teenager. However,

the jury acquitted him of that charge

at trial, and the circumstances

involving that incident are not

relevant to this review.

3 The record indicates that

defendant, against his counsel's

advice, rejected the state's offer of

a stipulated 5-year sentence for all

3 counts if defendant would enter an

agreement to plead guilty. Had the

offer been accepted, the state

apparently would have amended and

reduced the charges to make a 5-year

sentence statutorily available.

wntin

defendant knew each of them was 14 years

old. Officer Pearce testified that,

during the interview at the police

station, defendant had admitted to

consensual sexual intercourse with both

girls and acknowledged he was aware of

their ages. The jury found defendant

guilty of two counts of sexual conduct

with a minor under 15 years old. The

court ordered preparation of a

presentence report.

The presentence report indicated that,

while on release awaiting trial,

defendant voluntarily sought outpatient

counseling. His counselor indicated that

defendant visited her only once; she

"suspected that he feels ‘intimidated’ by

women in his own age group and that this

is why he is attracted to younger

girls." She also indicated her

impression that defendant was “immature

for his age."

Cuttin

The report also noted that defendant

waS married but separated pending a

divorce, that his wife was living in

Nevada with their 3 small children, and

that he had no prior felony convictions.

The presentence evaluation included the

following analysis and recommendation.

A reasonably intelligent

individual, Bartlett's attraction

to young girls may very well be a

sign of inferiority around women

his own age. Further, the

description of his early sexual

experiences may indicate a long

term deep [seated] problem with

women and sex. His justification

for his sexual conduct seems to

rest with the “loose” character of

the female involved, regardless of

their age. He tends to relinquish

any responsibility on his part by

appearing to be a passive

participant in all of his sexual

encounters.

Overall, he appears to be an

irresponsible and immature 24 year

old man who may continue to

present a threat to young girls.

His lack of any prior felonies

coupled with the seriousness of

the offenses, may indicate that

the presumptive term in [the

Department of Corrections] is

appropriate.

-C-10-

At sentencing, the court imposed the

minimum mandatory sentence on each

count: 15 years for the first count as a

nonrepetitive dangerous crime against

children, and 25 years on the second

count as a repetitive dangerous crime

against children, to be served

consecutively without any possibility of

early release. See generally A.R.S.

§ 13-604.01. The court expressed its

regret at having to impose such a harsh

sentence in the following remarks at

sentencing:

THE COURT: Well, I have very

little choice in this regard, to

put it mildly. The law in Arizona

in connection with an offense of

this nature is very stringent. As

I have reviewed the law and is

indicated in the pre-sentence

report, the law provides for a

very severe presumptive term on

each of the counts. The law also

provides that each day of the

sentence must be served. The law

also provides that the sentences

must be consecutive, and the law

also provides that the subsequent

offense is subject to a more

severe presumptive term.

-C-1ll-

Diane

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 1s very severe. .. . The

punishment is more severe than in

may 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 courts to review. So I

really have nothing else to say in

regard to sentencing. I'm going

to imposed the mitigated term,

because I think that it is plenty

severe in the case.

The court credited defendant with 88 days

of presentence incarceration and ordered

him to pay $100 to the victim's

compensation fund. Defendant timely

appealed. The court of appeals affirmed

defendant's convictions and sentences and

defendant sought review in this court.

The Court of Appeals Decision

Defendant argued on appeal that his

confession was involuntary and that his

sentence was cruel and unusual. The

court of appeals. first concluded that the

-C-12-

confession was voluntary; that holding is

not at issue in this review. In the

remaining one-paragraph analysis, the

court affirmed defendant's sentence:

Defendant's argument that the

long sentence imposed for sexual

conduct with a minor violates the

constitutional proscription

against cruel and unusual

punishment has been twice rejected

by this court. State v. Smith,

156 Aria. Sid, 753 ©.2@ ii7é (tApo.

1987); State v., Crego, 154 Ariz.

278, 742 P.2d 289 (App. 1987). We

do so again. The remainder of his

argument is a heartfelt objection

to the consequences of mandatory

sentencing on the facts of this

case. That is better addressed to

the legislature. We do not

believe courts have either

inherent power or power under

A.R.S. § 13-4037 to impose a

sentence below the statutory

minimum.

Defendant petitioned this court for

review of this decision; we granted

review only of the constitutional issue

whether defendant's sentences are

unconstitutionally cruel and unusual

under the particular facts of this case.

-C-13-

baete (ob

weet seg mht ed Myr

peceee & (« ‘ia tndee GtGhkGe can YEGLE

f rager Efles ceneues ih ‘ Mraee

rekeay aah (F emeataete

eevee oe fe FY r

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Spaner Cerewer OF ert rer. a. e

CHARS & Gear,

Tee Get Qe @ Bek aes ae

SDRSSHES OS SSeee SPSECORESS: FS Hr =

See, SDA SS. A, W, BH DD SA

WI Ap, HAW). WFR SRR

VW FROPORETRTDS POTWOSR BR OTFOPRS WISH &

WHRST PROVO VO BBS OF 2 HHA 29, Bas

DA DTPA PATA a» PLDI POwRRD? Dan 1,

se tes

A.R.S. § 13-604.01 only as

mem facts of his case. In

Challenges the mandatory

ices of 15 years for the

and 25 years for the second

ssly disproportionate to

Olving participation in

nincestuous, heterosexual,

sexual intercourse with

st-pubescent teenagers. He

enge the facial validity of

applied to other, more

against children unde:

umstances.

define crimes and to

elir punishment is one held

ture. Rummel v. Estelle,

284-85, 100 S. Ct. 1133,

Ed. 2d 382 (198); State v.

riz. 98, 103, 618 P.2d 592,

a reviewing court, we must

ial deference to the broad

legislatures necessarily

s0~17-

possess in determining the types and

limits of punishments for crimes

Solem v. Helm, 463 U.S. 277, 290,

103 S. Ct. 3001, 3009, 77 L. Ed. 2d 637

(1983). However, the fact that the

legislature enacts a punishment does not

conclusively establish its constitutional

validity; the eighth amendment

prohibition against cruel and unusual

punishment is a limit on the

legislature's power to mandate

penalties. State v. Mulalley, 127 Ariz.

92, 95, 618 P.2d 586, 589 (1980). If we

find a mandatory penalty so severe “as to

shock the conscience of society,” we must

find it cruel and unusual. State v.

Davis, 108 Ariz. 335, 337, 498 P.2d 202,

204 (1982). We judge whether the moral

sense of the community is shocked by

whether the punishment is overly severe

or disproportionate to the crime. State

v, Taylor, 82 Ariz. 289, 294, 312 P.2d

162, 166 (1957). We analyze such

-C-18-

.

Challenges on a case-by-case basis,

according to the circumstances of the

particular crime, the defendant's

personal culpability, and by the

perceptions of contemporary society at

the time the decision is rendered rather

than by our own standards. See generally

Mulalley, Taylor.

The United States Supreme Court has

enunciated a 3-prong test to determine if

a sentence is so disproportionate to the

Crime as to violate the eighth amendment

as cruel and unusual punishment. See

Solem v. Helm, 463 U.S. 277, 103 S. Ct.

3001, 77 L. Ed. 2d 637 (1983). The Solem

analysis requires us to examine: (1) the

gravity of the offense and the harshness

of the penalty; (2) a comparison of other

sentences imposed in the same

jurisdiction for more serious crimes; and

(3) a comparison of sentences in other

Jurisdictions for the same crime.

463 U.S. at 292. This court previously

-C-19-

utilized the same factors, even before

Solem v. Helm articulated them, in

deciding when a punishment is

unconstitutionally cruel and unusual:

In evaluating the proportionality

of a criminal sanction, we will

consider not only the nature of

the crime and of the offender,

but we will compare it with

punishments for the same crime in

other jurisdictions and for other

crimes within our own

jurisdiction. Because the

“enactments of legislative bodies

serve as some index of

community standards and values,"

they help give objective

content to the “conscience of -

society." In comparing the

sentence actually imposed with

sanctions provided in other

jurisdictions, we do not, of

course, seek to conform our

statutes “to the ‘majority rule’

or the least common denominator of

penalties nationwide." eta

Rather we seek evidence of what

sanctions are currently considered

acceptable in our society for the

crime considered.

Mulalley, 127 Ariz. at 96, 618 P.2d

at 590. We previously applied the Solem

analysis to uphold sentences imposed

under A.R.S. § 13-604.01 for other

dangerous crimes against children. See

-C-20-

State v. Jonas, No. CR-89-0021-PR (Ariz.

filed April , 1990); State v. Taylor,

160 Ariz. 415, 422-23, 773 P.2d 974,

981-82 (1989). Our court of appeals has

also applied the Solem factors to decide

eighth amendment attacks against

sentences for crimes against children.

See State v. Byrd, 160 Ariz. 282, 284,

772 P.2d 1135, 1137 (App. 1988); State v.

Smith, 156 Ariz. 518, 525-26, 753 P.2d

1174, 1181-82 (App. 1987); State v.

Crego, 154 Ariz. 278, 280, 742 P.2d 289,

291 (App. 1987). We now determine

whether the eighth amendment is violated

by applying the mandatory sentencing

provisions of A.R.S. § 13-604.01 to this

particular defendant under the specific

facts of this case.

A. Gravity of the Offense and

Harshness of the Penalty

In determining the gravity of the

offense, we must examine the type of harm

threatened or inflicted and the level of

Ca Z1-

defendant's culpability, measured by the

seriousness of the crime, against whom it -

was committed, and its level of

violence. Solem, 463 U.S. at 292-93;

Jonas, slip. op at iz.

In enacting the harsh penalties of the

dangerous crimes against children act,

the legislature determined the crimes

against children are among the most

serious crimes in our society. By

providing lesser penalties for those

crimes against children who have reached

the age of 15, the legislature also

determined that crimes against children

under age 15 are more serious crimes than

those against older children. This

“line-drawing" functioning is properly

the legislature's. See Jonas, slip op.

at 16. Additionally, by not providing

the defense of consent to sexual conduct

with a child younger than 18, the

legislature declared that, in its

judgment, children below the age of

-C-22-

majority are incapable of making a mature

decision to engage in sexual conduct.

See Fristoe, 135 Ariz. at 30, 658 P.2d

at 830 ("When a person has participated

in sexual conduct with a minor, he is

equally guilty of the crime whether he

forced himself upon the minor or whether

he succeeds in persuading the minor to

allow the sexual act to take place").

But see State v. Puig, 154 Ariz. 624,

628-29, 744 P.2d 725, 729-30 (App. 1987)

(although consent is not at issue if

minor is under 15, where minor is older

than 15 and defendant reasonably believes

the minor to be over 18, consent will be

a defense to a sexual abuse charge).

Although the minor's consent will not

decriminalize the sexual conduct, that

consent is relevant to our inquiry into

the gravity of the offense. In this

case, both minors were close to the

maturity line that the legislature has

drawn for less serious offense.

-C-23-

_————————————<—<_—_

According to their: testimonies, both were

willing participants in defendant's

conduct. Defendant used no violent force

Or threats against them. Neither girl

was physically injured or testified to

any emotional trauma. Under these

Circumstances, we must certainly consider

these offenses less grave than the others

punishable under the same statutory

scheme: second degree murder, sexual

assault, taking a child for the purposes

of prostitution, child prostitution,

involving or using a minor in drug

offenses, aggravated assault, molestation

of a child, sexual exploitation of a

minor, child abuse, or kidnapping. See

generally A.R.S. § 13-604.01.

Additionally, we must consider the

minor's proximities to their 15th

birthdays. Although the legislature may

be forced to draw a "bright line” at a

particular age (in this case, at the age

of 15) in distinguishing between class 6

-C-24-

i ae cacao ee

and class 2 sexual conduct felonies, a

reviewing court can look at a more

graduated line, depending on the nature

of the individual offense, in deciding

the proportionality of the punishment to

the crime. Thus, although the fact that

both consenting girls were close to their

15th birthdays cannot be used to reduce

the crimes from class 2 felonies to

Class 6 felonies, the punishment imposed

for those harsher class 2 felonies must

be proportionate to these individual

offenses. And although the legislature

has determined that a minor's "consent"

to sexual conduct does not excuse its

commission, certainly the punishment for

consensual sexual conduct with a minor of

14 1/2 years old should be closer to the

punishment for sexual conduct with a

15-year-old than to punishment for sexual

conduct with a 2-year-old. We thus

examine what punishment defendant would

have received if the minors were 15.

-C-25-

If Mary and Susan had been two months

and six months older, respectively,

defendant would have faced sentencing for

two counts of a class 6 felony for sexual

conduct with a minor 15 years of age.

The range of sentencing for the first

offense would have been a minimum term of

9 months, a presumptive term of

1.5 years, and a maximum term of

1.875 years. See A.R.S. §§ 13-701(C)(5),

-702(A). The trial court would have had

discretion to place defendant on

probation and to designate the offense as

a class 1 misdemeanor upon successful

completion of that probation. See A.R.S.

§ 13-0702(H). If imprisoned, defendant

would have been eligible for early

release after cne-half the sentence had

been served. The range of sentencing for

the second offense, as a repetitive

felony under A.R.S. § 13-604(H), would

have been a minimum term of 1.5 years, a

-C-26-

presumptive term of 2.25 years, and a

maximum term of 3 years. See A.R.S.

8§ 13-604(A), -702(H). Defendant would

not have been eligible for probation for

the second offense, but would have been

eligible for early release after one-half

the sentence had been served. See A.R.S.

§ 13-604(A). Defendant's terms could

have been imposed either consecutively or

concurrently, within the trial court's

discretion. See A.R.S. § 13-708. The

sentences defendant actually received

were significantly more harsh.

As to defendant's personal culpability,

the record indicates that he was an

"immature" young man who associated with

a younger peer group because of his

emotional insecurities, which included a

pending divorce after marriage at a young

age. He had no prior felony record and

no history of assaulting young children.

No evidence was presented that he

ee be

We do not for @ moment Ingcgertaearké

to minimize the wrong done to tne

minor child or to in any degree

condone it. But we feel that the

wrong may be ascribed more to the

follies of youth in this era of

confusion and frustration than to

a wicked and depraved heart.

State v, Telavera, 76 Aria, Ha, 18?

ai FF go yh LOO (Abad (PHReLRS J.)

Wea must alsa peenanise thab aeavat

PHAAHARE AMAARE BARECRHHBRPBHE FRRHAWBTA f

Hob Leen hbhebt BPAubbte Have bahen

Bien Hobbies:

it i8 a Faet that many young

people, tale and female, engage if

sexual intercourse. tn 1976, 2.7%

of all i6-year-olds in the United

States, and 6.4% of all

17-year-olds, had borne at least

one child. U.S. National Center

for Health Statistics, Vital

Statistics of the United States,

Table t<}7 (1978) Abowt halt of

ERESE ChilaGten WEFE +1164) t1HetE

1G¢/ FABIE }<F7 PAAGA

stat TSE VCS, IHEOVWAYAE HAE GA

TOE ER TORES 697) fap & A&A fA? sary

y WN ViSe Wr fers, y /4 VA dO MAA

yt AAA JAM, BABY AA de A bh hie db

APE LEALAR) PBA A BAA 14 lds A 4A

PIRES G4 44977)), 104A 4hBt Bb

Bite! DUMDeT Ad Mier siedg 14 Bie

JOnYRBIrAISE DAYAR 2DKBGe4 id

SOxUG) Intercourse resulting in

piegnaency and suggest that a

greater number have done so

without pregnancy.

Without applauding the sexual

permissiveness of the times, we

can only note that in the social

context of the times this type of

offense between young people is

committed many times without

Criminal prosecution and that, in

ordinary sentencing practice, is

nat regarded as sa serious as ta

require imprisanment.,

Bhake Vv, Bepulvadea, 367% Ba,ad Fea, FP)

tha uyu)

MeABsuEL HG ENO Gravity BF Ehe offenses

i EHIB BCUOHEGRE, We Huse Golipare Ehe

harshhess of the penalty, The

legislature has imposed mandatory minimum

consecutive sentences of 15 and 25 years

for the first and second acts of

consensual sexual conduct with a minor,

~C~29-

ane

TA ny 2g i rA ‘ J eh é yA

penalty for sexuai CONnGuct witn Cweo

consenting post-pubescent teenagers. The

broad application of the statute to

encompass this situation results 1n a

penalty grossly out of proportion to the

severity af the crime Althaugh such a

harsh penalty may he yushitiea AH the

CANRLRSRE AF AENRI WAR HNRIAAMAR BEAR

ine liuded Within FAR BRAEBHEL AG alee \ |

;m He} jib Piel Whee EN Bpeelbit

rireumebanees GE this ease

BH. Bentenees Iitpesed for Othe

Crimes in Arizona

We next examine the sentence imposed in

Arizona on defendants who commit crimes

more serious than this defendant's.

-C-30-

Solem, 46% U.U.S. at 292; Jonas, slip op.

ee 49 Wé wWaeahave previously disapproved

AW wl ae * e of comparing only those

"ae &£¢oeenpassed within the challenged

CHEER IAE # statute to conclude that the

VID) PEMD” 45 proportionate because all

CFIMES WIEDIin the statutory scheme

receive the © same penalties. See Jonas,

Slip op. at 19-20, disapproving the

analysis in £state v. Smith, 156 Ariz.

at 526, 753 Fp.2q at 1182, and State v.

Crego, 154 Ariz. at 280, 742 P.2d at 291.

Howevet, 43 comparison of the other

erimMe@s PUNSinable under the same

NANAALOLY S@Bntencing provisions of A.R.S.

§ ties. 0) tis helpful in this case to

alow that Wabre serious offenses do not

reeeive any Wgreater punishment. For

exaltiple, Se@eée@ond degree murder, forcible

sexual assauhlt, taking a child for the

purposes of pprostitution, or involving a

child in a drirug offense are all

-C-31-

considered first degree crimes against

children, subject to the same mandatory

minimum sentences of 15 and 25 years that

defendant received. A.R.S.

§ 13-604.01(A), (D). More potentially

serious crimes than those committed here,

such as aggravated assault, child

molestation, child abuse, or kidnapping,

are subject to a lesser minimum sentence

of 12 years for the first offense and

23 years for the second offense. See

A.R.S. § 13-604.01(B), (D).

Other more serious crimes that do not

involve children similarly receive lesser

penalties than those mandated in this

case. Class 2 felonies not involving a

dangerous weapon or threatened physical

injury are punishable for a first offense

with a minimum term of 5.25 years, a

presumptive term of 7 years, and a

maximum of 14 years, with early release

potentially available after only half the

sentence has been served. a ee

-C-32-

§§ 13-701, -702. Such first-time

offenders are eligible for probation, or,

if imprisoned, can earn early release

credits of 1 day for each 2 days served.

A second offense carried a minimum term

of 7 years, a presumptive term of

10.5 years, and a maximum of 21 years,

with early release potentially available

after two-thirds of the sentence has been

served. A.R.S. §§ 13-701, -702,

-604(B). The first and second sentences

are presumed to run consecutively but the

trial court has discretion to make them

concurrent by stating its reasons on the

record. A.R.S. § 13-708. Included

within this scheme of punishment for

Class 2 felonies are the following

crimes, all potentially more serious than

the offenses committed by this

defendant: kidnapping, A.R.S. § 13-1304;

sexual assault of an adult, A.R.S.

§ 13-1406; first degree burglary of a

residential structure, A.R.S. § 13-1508;

-C-33-

and arson of an occupied structure,

A.R.S. § 13-1704. Additionally,

manslaughter, a class 3 felony, A.R.S.

§ 13-1103, is punishable with a minimum

sentence of 3.75 years, a presumptive

term of 5 years, and a maximum term of

10 years. A.R.S. §§ 13-701(C)(2),

-702(B).

We also compare the circumstances under

which other defendants have been

subjected to the same mandatory

sentencing scheme. In State v, Taylor,

we upheld an aggregate prison term of

2,975 years for 85 counts of dangerous

Crimes against children. 160 Ariz. 415,

773 P.2d 974 (1989) In that case, the

defendant performed and photographed

various sexual acts with children aged

from 18 months to 8 years old, and many

other unidentified small children. He

also had a prior criminal history of sex

crimes with young children in two other

states. We recognized the “irreparable

~C-34+

harm which he has caused to the normal

development of numerous children," and

his inability “to control his proclivity

for sexual conduct with children" as

important factors justifying the

harshness of the sentence. Taylor,

160 Ariz. at 423, 773 P.2d at 982. In

State v., Crego, the court of appeals

upheld two consecutive 20-year prison

terms for a defendant who molested

3 different victims under age 15 a few

months after he had been released from

prison for a similar offense, and while

he was on parole. 154 Ariz. at 279,

742 P.2d at 290. In State v, Smith, the

court of appeals also upheld a mandatory

prison sentence of 91 years for a

defendant who repeatedly molested a

10-year-old boy and photographed the

numerous incidents on approximately

60 occasions. 156 Ariz. at 520, 753 P.2ad

at 1176. Defendant also points out other

cases in which harsh sentencing

-C-35-

provisions were appropriately applied in

situations involving repeated and cruel

sexual offenses against small children.

See, e.g., State v. Cummings, 148 Ariz.

588, 716 P.2d 45 (App. 1985) (defendant,

a scoutmaster, performed multiple acts of

oral and anal sex on 12- to 13-year-old

male victims; was sentenced to

5 concurrent prison terms ranging from

7 to 15.75 years); State v. O'Neill,

117 Ariz. 343, 572 ®.2d 1161 (1977)

(defendant, while baby-sitting, molested

a two-year-old infant, resulting in a

tear between her vagina and rectum; was

sentenced to 20 years to life). These

and other cases stand in stark contrast

to the circumstances under which this

defendant was sentenced in this case.

We conclude that a comparison of the

punishments imposed for other crimes in

Arizona reveals the disproportion with

which defendant was sentenced under these

factual circumstances.

hx 36-

C. Sentences Imposed for the Same

Crime in Other States

We also examine the punishment imposed

for the same crime in other

Jurisdictions. Solem, 463 U.S. at 292.

This comparison is difficult because the

offenses defendant committed are

Chargeable as a broad variety of crimes

with varying punishments. However, we

have attempted to compare penalties for

the crimes closest to those committed

here: consensual, nonincestuous,

heterosexual intercourse with a 14-year-

old.

Additionally, we compare each of

defendant's sentences individually,

keeping in mind that the 15-year-sentence

was imposed for a first offense, and that

the 25-year-sentence was imposed for a

second offense. We also consider only

those sentences imposed for a defendant

with no prior felony convictions, other

than the first offense used as an

in BF a

enhancement factor for the second

offense. Our focus is necessarily on the

mandatory minimum sentences imposed in

other jurisdictions, because that is what

defendant received here. We do not

consider significant the state's argument

that Setandenk could have received

maximum sentences in other jurisdictions

greater than the minimums imposed in this

case, because the record clearly

indicates that the trial court did not

find aggravating factors justifying

maximum sentences under these

circumstances.

(1) 15-year Sentence for First Offense

In 10 jurisdictions, defendant's

offenses would either not be a crime or

would be punishable only as a misdemeanor

with a sentence of less than one year

and/or a fine.* For a first felony

4 See Ark. Stat. § 5-14-106 (third

degree carnal abuse, a class A

«C~38-~

offense in the remaining jurisdictions,

defendant would have faced a minimum

penality of one, two, or three years,”

4 (continued)

misdemeanor); Cal. Penal Code§ 261.5, 264

(unlawful sexual intercourse); Ga. Crim.

Code § 26-2010 (fornication); Haw. Rev.

Stat. § 707-732 (sexual abuse in the

third degree); Ill. Crim. Code § 11-4.1

(contributing to the sexual delinquency

of a child); Md. Ann. Code § 27-464(C)

(fourth degree sexual offense); Mo. Rev.

Stat. § 566.030 (not a felony; age of

consent is 14); Pa. Stat. Ann. § 18-3122

(not a felony; age of consent is 14);

S.C. Code Ann. § 16-3-655 (not a crime;

age of consent is 14); W. Va. Code Ann.

§ 61-8B-9(a) (sexual abuse in the third

degree).

) Felony penalties for a first offense

in other jurisdictions include the

following sentencing ranges: Ala. Code

§ 13A-6-62 (2 to 20 years); Alaska Stat.

§§ 11.41.434, 12.55.125 (1 to 10 years);

Colo. Rev. Stat. §§ 18-3-403, 18-1-105

(2 to 8 years); Conn. Gen. Stat.

§ 53a-71(1), 53a-35a (1 to 10 years);

Del. Code. Ann. tit. 11 §§ 773, 4205

(3 to 30 years); Fla. Stat. Ann.

§§ 800.04, 775.082 (1 to 15 years); Idaho

Code §§ 18-6101, 18-6104 (1 year to

life); Ind. Code. Ann. §§ 35-42-4-3(c),

35-50-2-6 (2 to 8 years); Iowa Code

§ 709.4 (1 to 10 years); Kan. Crim. Code

Ann. §§ 21-3503, 21-4501 (3 to 20 years);

Ky. Rev. Stat. Ann. § 510.060 (1 to

5S years); La. Rev. Stat. Ann. § 14:80

(1 to 10 years); Me. Rev. Stat. Ann. tit.

-C-39-

with probation often available. Thus,

Our statute is unique among all

5 (continued)

17-A, §§ 254, 1252(b) (1 year); Mass.

Gen. Laws Ann. Ch. 265, § 23 (1 year to

life); Mich. Comp. Laws § 28.788(4)(a)

(1 to 15 years); Minn. Stat. Ann.

§ 609.344(1)(b)(2) (1 to 15 years); Miss.

Code Ann. § 97-5-21 (1 to 10 years);

Mont. Code Ann. § 45-5-503(3)(a) (2 to

40 years); Neb. Rev. Stat. § 28-319 €1 to

50 years); Nev. Rev. Stat. §§ 200.364(3),

200.368(1) (1 to 10 years); N.H. Rev.

Stat. Ann. §§ 632-A:3, 651:2 (1 to

7 years); N.J. Rev. Stat. Ann.

§§ 2C:14-2(c)(5), 2C:43--6.a, b(2) (2 to

10 years); N.M. Stat. Ann. §§ 30-9-13(B),

31-18-15 (1 to 2 years); N.Y. Penal Law

§§ 130.25, 70.00(e) (1 to 4 years); N.C.

Gen. Stat. §§ 14.202.1, 14-1.1(8) (1 to

10 years); N.D. Cent. Code §§ 12.1-20-03,

12.1-32-01.3 (1 to 15 years); Ohio Rev.

Code Ann. §§ 2907.04, 2929(A)(3)(a) (1 to

2 years); Okla. Stat. Ann. §§ 1114(B),

1116 (1 to 15 years); Or. Rev. Stat.

§§ 163.355, 161.605 (1 to 5 years); R.I.

Gen. Laws §§ 11-37-6, 11-37-7 (1 to

5 years); S.D. Codified Laws § 22-22-1(5)

(1 to 15 years); Tenn. Code Ann.

§ 39-2-605 (1 to 5 years); Tex. Penal

Code Ann. § 22.011 (2 to 20 years); Utah

Code Ann. §§ 76-5-401(1), 76-3-203(3)

(1 to 5 years); Vt. Stat. Ann. tit. 13

§ 3252 (1 to 20 years); Wash. Rev. Code

§§ 9A.44.079, 9.94A.310, table 1 (1 to

5 years); Wis. Stat. Ann. § 940.225(2)(3)

(1 to 10 years); Wyo. Stat. §§ 6-2-3004,

6-2-306(iii) (1 to 5 years); D.C. Code

Ann. §§ 22-2801, 24-203 (1 year to life).

-C-40-

jurisdictions in that it imposes a minim

mandatory term of 15 years, which is 5

times higher than that imposed in any

other jurisdiction. In all jurisdictions

but Arizona, the sentencing judge has a

wide range of discretion in imposing a

sentence at the bottom of the statutory

range that fits the individual

Circumstances of the crime. Although the

maximum allowable sentence in some

jurisdictions would have fallen within

the range of sentencing provided for a

first offender under A.R.S.

§ 13-604.01(A), in no jurisdiction would

the sentencing judge be required to

impose a sentence of more than 3 years

for the identical offense. Thus our

legislature has mandated a penalty

potentially disproportionate to an

individual criminal act or defendant.

See J. Howe, Thoughts on Mandatory

Sentencing, Ariz. Bar J. June-July 1985,

at 24-25.

Such potential disproportionality is

not enough to allow us to find

defendant's sentences cruel and unusual.

See State v. Taylor, 160 Ariz. 415,

773 P.2d 974 (1989) (“Although on the

national spectrum Arizona deals with

Crimes against children more severely

than many other states, ‘[t]he Eighth

Amendment is not violated every time

a state reaches a conclusion different

from a majority of its sisters over how

to best administer its criminal laws.'

Spaciano v. Florida, 468 U.S. 447, 464,

104 S. Ct. 3154, 3164, 82 L. Ed. 2d 340,

355 (1984)"). Such potential differences

in sentencing are “a mark of federalism,

not unconstitutionality." State v.

Bishop, 717 P.2d 261, 272 (Utah 1986).

In this case, however, the potential

disproportion between the sentences

defendant received and those sentences

actually imposed on other similarly

Situated defendants in other

-C-42-

jurisdictions is actual. Defendant has

Supplied us with a myriad of examples in

the published case law of other

jurisdictions. A few representative

Citations illustrate his point:

Diefenderfer v. State, 745 P.2d 556 (Wyo.

1987) (defendant pleaded guilty to third

degree sexual assault of a girl under 14;

the execution of his sentence of 3 to

5 years suspended and 4 years probation

imposed); State v. DeJesus, 10 Conn. App.

991, 524 A.2d 1156 (1987) (defendant

pleaded guilty to second degree sexual

assault of a 14-year-old; sentence of

5 years upheld); State v, La Borde,

234 La. 28, 99 So.2d 11 (1958) (defendant

convicted of carnal knowledge of

14-year-old; sentenced to one year,

9 months); State v, Smart, 247 La. 174,

170 So.2d 365 (1965) (defendant convicted

of carnal knowledge of a 13-year old;

sentenced to 3 years); State v.

Rodriguez, 179 N.J. Super. 129, 430 A.2d

-C-43-

————SS ak eee

957 (1981) (defendant convicted of sexual

assault of a 13-year old; sentenced to

4 years); State v. Newell, 348 S.E.2d 158

(N.C. 1986) (defendant convicted of

taking indecent liverties with a

consenting child between 13 and 16;

sentenced to 3 years); State v. Hartman,

145 Wis.2d 1, 426 N.W.2d 320 (1988)

(defendant convicted of statutory rape of

a 14-yeur old; sentenced to a term of not

more than 3 years, but suspended and

defendant placed on probation with

6 months in county jail work release

program). Additionally, defendant's

appellate counsel has avowed to the court

that he “has diligently searched two

centuries of case law of each of our

50 sister states. This required the

review of just over 2,600 cases. Not one

case was found where a similarly situated

defendant received an aggravated sentence

remotely comparable to that imposed as a

mandatory minimum upon Mr. Bartlett."

-C-44-

Given this authority, we conclude that

the mandatory minimum sentence imposed on

defendant for his first offense was |

disproportionate to sentences received by

Similarly situated defendants in other

jurisdictions.

(2) 25-year sentence for second offense

A comparison of the 25-year mandatory

minimum sentence defendant received for

the second offense with those imposed in

other jurisdictions is complicated by the

enhancement of defendant's second

sentence because the first count was

treated as a prior predicate felony.

Most jurisdictions punish repeat

offenders more stringently, and

enhancement of penalties on the basis of

prior offenses has been consistently

upheld against eighth amendment attacks.

See, e€.g., Rummel, 445 U.S. at 276; Cocio

v. Bramlett, 872 F.2d 889, 893 (9th Cir.

1989). However, we are mindful that the

legislature, in requiring a 25-year

aCo45~

minimum sentence for a second offense,

implicitly assumed that it was enhancing

a constitutionally proportionate minimum

sentence of 15 years for a first

offense. We have already found the

minimum sentence for the first offense to

be disproportionate to the facts of this

case. Additionally, the "prior" felony

in this case was one for which defendant

waS Simultaneously tried and sentenced

with the second offense, a factor not

existing in other jurisdictions. 5ee

A.R.S. § 13-604(H).

Also complicating our analysis is the

mandatory consecutive nature of the two

sentences, along with the absence of the

availability of parole. We have

previously refused to find the

consecutive nature of two sentences for

two separate crimes to be a factor that

would render the second sentence

disproportionate. Jonas, slip op.

at 18. We thus do not consider that

-C-46-

factor here. ° Nonavailability of

parole, however, is a factor in

determining proportionality, although the

absence of parole, in itself, does not

make a sentence disproportionate. Solem,

463 U.S. at 297 and n.24; Jonas, slip op.

at 18. In this case, the absence of

parole availability requires us to consi-

der that defendant will serve the entire

25-year sentence for the second offense.

Despite these difficulties, a

comparison of what penalties defendant

would face for a second offense in other

jurisdictions, although not as clear as

the comparison for a first offense,

6 We do not hold, however, that we

would never consider the requirement of

consecutive sentences to be a factor in

determining proportionality. This is

not, for example, a case in which

consecutive sentences were imposed on a

defendant who engaged in one single

course of conduct that resulted in a

separate repetitive crimes with

consecutive sentences. In such a case,

the consecutive nature of the sentences

would perhaps be a factor in deciding

proportionality.

wo ye

compels the conclusion that defendant

would be subject to a much lighter

minimum mandatory sentence for his second

offense in all but one state.

In Nebraska, defendant would be subject

to a statutory range of 25 to 50 years

for a second conviction of sexual assault

involving a consenting child less than

16 years old, and would not be eligible

for parole. Neb. Rev. Stat.

§ 28-319(1)(c), (3). However, as the

United States Supreme Court noted in

Solem v. Helm, a finding that a defendant

could have received an identically harsh

sentence in one other state is also a _

clear indication that he "could not have

received such a severe sentence in 48 of

the 50 states." 463 U.S. at 299

(emphasis added). Furthermore, we have

not been advised by the state of any

defendant charged in Nebraska with

offenses similar to Bartlett's actually

receiving such a harsh sentence. Rather,

-C-48-

the published cases that we have found

Challenging the mandatory Nebraska sen-

tence for a second offe \e have involved

more heinous offense, including forcible

rape with serious physical injuries to

the victim. See, e.g., State v. Brand,

219 Neb. 402, 363 N.W.2d 516 (1985)

(defendant received 35-year sentence for

his second conviction of first-degree

sexual assault involving the use of

force; sentence found not

disproportionate to crime). Under these

circumstances, we cannot find the 25-year

mandatory minimum sentence for defen-

dant's second offense to be proportionate

merely on the basis of the Nebraska

statue.

Except for Nebraska, no other

jurisdiction imposes a mandatory minimum

sentence of more than 10 years for a

second offense similar to defendant's.

In no jurisdiction did we find the parti-

cularly harsh combination of provisions

-C-49-

present here, including both mandatory

consecutive sentencing and nonavail-

ability of parole. We must conclude,

therefore, that the 25-year mandatory

minimum imposed for defendant's second

offense is also disproportionate to the

sentences imposed on similarly situated

defendants in other jurisdictions.

Based on the above analysis, we hold

that defendant's sentence of 15 years for

the first offense and 25 years for the

second offense are disproportionate to

the crimes he committed under the

specific facts of this case, and thus

violate the eighth amendment proscription

against cruel and unusual punishment.

This is a narrow holding limited to the

facts and circumstances of this case.

The Supreme Court has said that success-

ful challenges to the proportionality of

particular sentences are “exceedingly

rare." Solem, 463 U.S. at 289-90. This

is such a rare case.

-C-50-

—-« ee, OOOO eV

3. Cruel and Unusual Punishment

under the Arizona Constitution

Although this court requested

additional briefing on whether

defendant's sentence violated either the

federal or state constitutional

provisions prohibiting cruel and unusual

punishment, neither party analyzed the

state constitutional provision separately

from the federal grounds.

Article 2, § 15 of the Arizona

Constitution is identically worded to its

federal counterpart prohibiting cruel and

unusual punishment. The framers of the

Arizona Constitution, "in a rare case of

using the federal Constitution as a

model,” adopted the federal wording

"cruel ait unusual punishment" over the

committee's proposed wording that neither

"cruel nor unusual punishment" should be

permitted. J. Leshy, The Making of the

Arizona Constitution, 20 Ariz. St. L.J.

l, 85 and n.524 (1988), citing Journal of

-C-51l-

the [Arizona] Constitutional Convention

463 (Con. P. Cronin Comp. 1925). This

deliberate adoption of the federal

wording expressed the framers’ intent to

give legislators wide discretion in

imposing methods of capital punishment.

See S. Feldman & D. Abney, The Double

Security of Federalism: Protecting

Individual Liberty Under the Arizona

Constitution, 20 Ariz. St. L.Jd. Lid, i624

(1988).

Here, where identically worded federal

and state constitutional provisions are

alleged to have been violated, when the

parties do not argue that the state

constitution provides greater protection

than does the federal analog, and when we

have already found a violation of the

federal counterpart, we need not address

whether defendant's sentences would have

violated the Arizona constitution had

they not violated the eighth amendment.

-C-52-

Having concluded that the sentences

imposed in this case violate the eighth

amendment prohibition against cruel and

unusual punishment, we do not address

whether they violate art. 2, § 15 of the

Arizona Constitution.

Disposition

In his petition for review, defendant

argues that

This text is long and has been trimmed here. Open the source document for the complete record.