# Petition for Writ of Certiorari — Arizona v. Bartlett

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 992

## Text

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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-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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1355%3A1. Public record. Not legal advice.