Opposition Brief — Berger v. Arizona (No. 06-349)

2 FILED

No. 06-349 JAN 0 9 2007

— re ert

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

MORTON ROBERT BERGER,

Petitioner

VS.

STATE OF ARIZONA,

Respondent.

On Petition for Writ of Certiorari

for the Arizona Supreme Court

BRIEF FOR THE STATE OF ARIZONA IN

OPPOSITION

iittala aiainiiitiaataa eatin eT

TERRY GODDARD

Attorney General

MARY R. O’ GRADY

Solicitor General

RANDALL M. HOWE

Chief Counsel

(Attomey of Record)

Criminal Appeals Section

ROBERT A. WALSH

Assistant Attorney General

Cnminal Appeals Section

1275 W. Washington

Phoenix, Arizona 85007-2997

Telephone: (602) 542-4686

QUESTION PRESENTED

Whether the Eighth Amendment’s Cruel and Unusual

Punishment Clause’s threshold gross-disproportionality

analysis mandates consideration of the aggregate length of a

defendant’s consecutive prison terms, when each component

prison term imposed, standing alone, is constitutional?

i

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW .................. 1

pS OB A PN Cp yt) 1 sy | lil

a dcpevsuunsoessoucdovesivves ]

STATEMENT OF JURISDICTION ......0.00..0.0.0000ccee. ]

SP IPMMEET EE GPM BBE, CASIL......0..0.ccccccccocccscvvcccccereveveces ]

ss ounss uduseeneueeesescuaevervecisees 12

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ill

TABLE OF AUTHORITIES

CASES PAGE

Badders v. United States, 240 U.S. 391 (1916)............. 18

Bewley v. State, 220 N.E.2d 612 (Ind. 1966)............... 18

Brinkley v. State, 143 S.W. 1120 (Tenn. 1911)............ 17

Cole v. State, 262 So.2d 902 (Fla. App. 1972)............. 17

Deal v. United States, 508 U.S. 129 (1993)................. 21

Ewing v. California,

S56 U.S. TE CAO? occ cece: 5, 6, 7, 9, 10, 13, 14, 21, 24

Harmelin v. Michigan,

501 U.S. 957 (1991)...... 5, 6, 9, 13, 14, 20, 21, 22, 25

Hawkins v. Hargett, 200 F.3d 1279 (10" Cir. 1999)....... 15

Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703,

Fe hee Se CE os eves tctsvereutbaigeenieioiianes 9.13

Kaylor v. State, 400 A.2d 419 (Md. App. 1979)...... 17, 19

Lockyer v. Andrade, 538 U.S. 63 (2003)..... 13, 17, 19, 26

Malee v. State, 809 A.2d 1 (Md. App. 2002)..... 15, 18, 22

New York v. Ferber, 458 U.S. 747 (1982)............... 6, 24

O’Neil v. Vermont, 144 U.S. 323 (1892) .................... 15

Osborne v. Ohio, 495 U.S. 103 (1990) ........... 6, 7, 13, 24

Pearson v. Ramos, 237 F.3d 881 (7" Cir. 2001)....... 15, 22

People v. Elliott, 112 N.E. 300 (Ill. 1916).............. 15,17

People v. Hayes, 923 P.2d 221 (Colo. App. 1995)......... 15

People v. Kennebrew,

560 N.W.2d 354 (Mich. App. 1996) ..................... 15

People v. Miles, 559 N.W.2d 299 (Mich. 1997) ........... 17

People v. Poole (Terry),

555 N.W.2d 485 (Mich. App. 1996) ..................... 21

People v. Preciado,

116 Cal.App.3d 409, 172 Cal. Rptr. 107 (1981).. 19, 25

People v. Warner,

476 N.W.2d 660 (Mich. App. 1991)................ t7, Zz

Perry v. Commonwealth, 780 N.E.2d 53 (Mass. 2002)...25

Rosemond v. State, 756 P.2d 1180 (Nev. 1988)............ 18

Rummel v. Estelle, 445 U.S. 263 (1980) .......... 13, 14, 24

Solem v. Helm, 463 U.S. 277 (1983) .........cccccessecccecees 9

State ex rel. Garvey v. Whitaker,

Pe I ls Bans cod cc an csbennacckecsdovessnesans a2, 22

State v. August, 589 N.W.2d 740 (Iowa 1999) ............. 18

a, Rae 8 ae gy ) 27

State v. Dillard, 320 So.2d 116 (La. 1975).................. 16

OOS V. EAIVEE, TE PF.S. G23 (UBIO onc cvccccvcccsivescsccerys 22

State v. Emond, 786 P.2d 989 (Ariz. App. 1990).......... 24

State v. Jonas, 792 P.2d 705 (Ariz. 1990)......... 18, 24, 26

State v. Laffey, 600 N.W.2d 57 (Iowa 1999) ............... 20

State v. McNally, 211 A.2d 162 (Conn. 1965) ............. 18

State v. Moliga, 747 P.2d 81 (Idaho App. 1987)........... 18

State v. Murray, 563 A.2d 488 (N.J. App. 1990).......... 19

State v. Nunn, 802 P.2d 547 (Kan. 1990) ................... 20

Sseate v. O' Med, 2 A. S06 (Vt. IGBG).......... ccc ccccsccvascees 16

State v. Padilla, 509 P.2d 1335 (N.M. 1973)............... 17

State v. Poole (Robert),

FOND TN. We. OT GAME, BIG) occ vicccccccecccttcveees 17, 25

State v. Repp, 603 S.W.2d 569 (Mo. 1980)................. 17

State v. Taylor, 773 P.2d 974 (Ariz. 1989) ................. 2]

State v. Venman, 564 A.2d 574 (Vt. 1989) .................. 15

MI ED ose yn paw ca dcg onan beg pb cipaauaeiadeuaes 26

Thompson v. State, 658 $.W.2d 350 (Ark. 1983) OE Oe 20

United States v. Aiello,

O64 F208 257 GB Cir. 1968)... io. 5.0 ceccccccvcevecs. 8, 15, 26

United States v. Angelos,

433 F350 TIO IT Ci. BOOB) wo cv ccnecccececccns 14, 19, 20

United States v. Arrington,

159 F.3d 1069 (7" Cir. 1998)............. iauceneu seen 20

United States v. Beverly,

369 F.3d 516 (6" Cir. 2004) ................ 16, 19, 20, 26

United States v. Candia, 454 F.3d 468 (5" Cir. 2006) .... 18

United States v. Hersh, 297 F.3d 1233 (11" Cir. 2002)...24

United States v. Hungerford,

SF Ae FEE i Pink bo kkvokstnaiccanioneateds 20

United States v. Khan, 461 F.3d 477 (4" Cir. 2006)....... 19

United States v. Lustig, 555 F.2d 751 (9" Cir. 1975); ....19

United States v. Ming Hong,

Dee F.3d SIE S52 18" Ce. QOD) nvdncccdvcncecvciens 55; 3s

United States v. Norris, 159 F.3d 926 (5" Cir. 1998)..... 24

United States v. Schell, 692 F.2d 672 (10" Cir. 1982) ....18

United States v. Sherman, 268 F.3d 539 (7" Cir. 2001) ..24

United States v. White, 240 F.3d 127 (2 Cir. 2001) ..... 18

United States v. Woods, 440 F.3d 255 (5" Cir. 2006) ....19

United States v. Yousef, 327 F.3d 56 (2 Cir. 2003) ..... 19

Wahleithner v. Thompson,

RGD Feo St CRE. FAD. DOGO) oscccecsanvescastccecsiuens 15

Walton v. Scott, 445 S.W.2d 97 (Ark. 1969) ............... 17

Weems v. United States, 217 U.S. 349 (1910).............. 21

Statutes

Ee Ate: B Rea TS), CONT) CH oon oes ssece cp vases, 14

ress ee GPE) vince) rk cao vddederesecdendpcuseeectiaee l

hy Oe WOOD os oop tendascavinceides alee ee 4

Pe, Oe 5 IED oh soso s ktkevvesdint kines 4

Le PDE oss sd eveneecadvivniscsactionelyie Oe

Ee Aa 5, ieee ep mam Ene PEATE Bs ar EASED Y 2. -) 4

Rs a OED 6 eas ksh sda dee ee

Ga. Code Ann. § 16-12-100 (2003) ....................... oy

aes. Code Amn. 6 ST SSS CHO ion osnesscedarccencesovavess 14

Nev. Rev. Stat. Ann. § 200.750 (2005) ..................00. 14

Utah Code Ann. §§ 76-Sa-3, 76-2-203(2) (1953)......... 14

Vi

Other Authorities

1978 Ariz. Sess. Laws 1978, Ch. 200, § 2(A)(5)-(6))..... 24

Cal. Penal Code Ann. § 666 (West. Supp. 2002)........... 17

CONSTITUTIONAL PROVISIONS

res oe Ie eae l

OPINIONS BELOW

The Arizona Supreme Court’s opinion (Pet. App. 1a-41a) is

reported at 134 P.3d 378 (Ariz. 2006). The Anzona Court of

Appeals’ opinion (Pet. App. 42a-85a) is reported at 103 P.3d

298 (Anz. App. 2004).

STATEMENT OF JURISDICTION

The Arizona Supreme Court entered its judgment on May

10, 2006. Pet. App. la. Petitioner did not file a petition for

rehearing. The petition for a writ of certiorari was filed on

September 7, 2006. This Court has jurisdiction pursuant to 28

U.S.C. § 1257(a) and United States Constitution Article III,

Section 2.

STATEMENT OF THE CASE

On June 6, 2002, law enforcement conducted a knock-and-

talk at Petitioner’s residence because a Dallas-based internet

child-pornography website operator had identified him as

someone who had provided his credit card number to purchase

access to their website’s contraband images. (P.I. at 13 [State’s

Response to Petitioner’s Release Motion], page 4; R.T. 1/28/03,

at 6-8; R.T. 1/29/03, at 26, 37-40, 46, 51-53, 55.) Ultimately,

Petitioner admitted that he had downloaded images of child

pornography on his web-site at home, resulting in the seizure of

two computers, 150 floppy disks, 100 compact disks, and three

photo-album binders that contained thousands of pornographic

images of prepubescent children that Petitioner had printed

onto high-quality, glossy paper, and which he carefully

organized by age, sexual activity, and sexual partners. (P.I. at

28 [State’s Response to Petitioner’s Motion to Dismiss

Allegation of A.R.S. § 13-604.01], page 8: R.T. 1/29/03, at 37-

41, 55-66, 72-75, 77, 83-85, 89-100, 104-05, 112-13, 143-45;

Trial Exhibits 1, 2, 5-7.) While scanning the images on

Petitioner’s hard drive and disks, the State’s forensic computer

expert tabulated almost 41,000 “hits” for the words most

commonly used to search child pornography on-line—“‘Lolita,”

“preteen,” “young girls,” and “underage”—a frequency rarely

encountered during his investigations. (R.T. 1/29/03, at 162,

194.) Petitioner created his earliest images on April 23, 1996,

more than 6 years before his arrest. (/d. at 177-80.) Petitioner

admitted his awareness that possession of child pornography

was illegal]. (/d. at 72-75, 85-89, 166-67; Trial Exhibit 3.)

As reflected in the State’s response to Petitioner’s motion

for release, Petitioner’s child-pomography collection was

extensive, graphic, and extremely disturbing:

The images included bondage, torture, and young

girls having intercourse with dogs. Children are

blindfolded, hands tied, being urinated on, and wearing

dog collars. There are numerous video files, most

involving girls as young as 3 years old being forced to

perform oral sex on adult men and being vaginally and

anally raped by adults. There is a particularly disturbing

video of a young (no more than 4 years old) girl

struggling and crying and begging her abuser to stop as

he holds her by the throat and ejaculates on her face and

forces his penis into her mouth. ...

Almost all of his thousands of images were of

children engaged in sexual acts, not just exploitative

exhibition. On a more disturbing note, this defendant

not only stored images of little children with blindfolds

and hands tied, being raped, tortured, forced to have

sexual intercourse with dogs and other animals, wearing

dog collars and being urinated on—but he even printed

them in high quality glossy paper and neatly stored

them in binders so that he could look at them more

easily. He has photos of children engaged in sexual acts

with other young children as well as with adults

sexually abusing them. The children in defendant’s

images are extremely young, including toddlers. Many

of the videos contained on the defendant’s hard drive

and CD-ROMS are absolutely nauseating and too

horrible to even describe. They are quite literally the

worst images of child pornography/torture that the

undersigned has seen in her career, an opinion also

expressed by the State’s very experienced expert

pediatrician who determined the ages of the children

and the experienced detective assigned to this case. One

disturbing video actually has a loud audio file

attached—a young girl no more than 4 years old,

struggling and crying and begging her abuser to stop as

he holds her by the throat and ejaculates on her face and

forces his penis in her mouth.

(P.I. at 13 [State’s Response to Petitioner’s Release Motion],

pages 3, 5.)

After charging Petitioner with thirty-five counts of sexual

exploitation of a minor, the State dismissed fifteen counts

before tna] began because the prosecutor feared deluging the

jury with these graphically disturbing images.’ (R.T. 1/28/03, at

3-5; R.T. 3/7/03, at 4-6.) The jury subsequently convicted

Petitioner of the remaining twenty counts and determined that

the depicted children were less than -fifteen years old. (R.T.

3/3/03, at 11-13.)

' The State did not charge Petitioner with sexual exploitation of a child

for every image in his collection, but selected only thirty-five representative

images from the thousands available, for purposes of “judicial economy.”

(P.I. at 13 [State’s Response to Petitioner's Release Motion], page 4.)

After rejecting Petitioner’s post-conviction Eighth

Amendment challenge, the tnal court imposed twenty mitigated

ten-year prison terms, and ordered them to run consecutive to

each other, as mandated by A.R.S. §§ 13-604(K) and -3553.

(R.T. 3/7/03, at 11-13; M.E. at 94, 97.) Although the trial court

imposed mitigated prison terms, it agreed with the Legislature’s

determination that Petitioner’s crimes were very serious

offenses and did not enter any special order to invoke A.R.S. §

13-603(L)’s executive clemency provisions. (R.T. 3/7/03, at 11-

14; M.E. at 97.)

On direct appeal, Petitioner challenged his convictions on

First Amendment and Equal Protection grounds and also

claimed that the aggregate length of his sentences violated the

Eighth Amendment. The Arizona Court of Appeals rejected all

of these arguments in a published opinion. Pet. App. at 42a-63a.

Abandoning the aforementioned challenges to his convictions,

Petitioner petitioned the Arizona Supreme Court solely to

review the lower courts’ rejection of his argument that the

aggregate length of his twenty consecutive ten-year prison

terms transgressed the Cruel and Unusual Punishment Clause of

the Eighth Amendment. The Arizona Supreme Court granted

review “to again consider the framework for reviewing Eighth

Amendment challenges to lengthy prison sentences.” Pet. App.

at 4a. Writing for himself and all but one of the members of the

Anzona Supreme Court, Justice Bales held that Petitioner’s

sentences did not raise an inference of gross disproportionality,

affirmed his sentences, and vacated that portion of the Anzona

Court of Appeals’ opinion addressing Petitioner’s Eighth

Amendment claim. Pet. App. at 1a, 24a.

The Anzona Supreme Court commenced its analysis by

observing that “[this Court] has noted that non-capital

sentences are subject only to a ‘narrow proportionality

principle’ that prohibits sentences that are ‘grossly

disproportionate’ to the crime.” Pet. App. at 5a (quoting Ewing

v. California, 538 U.S. 11, 20, 23 (2003) (O’Connor, J.,

concurring) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-

97 (1991) (Kennedy, J., concurring)). The majority then

identified its standard as “the framework outlined by Justice

Kennedy in his concurring opinion in Harmelin and later

employed by Justice O’Connor in announcing the judgment of

the Court in Ewing.” Pet. App. at 5a. Recognizing that “courts

must accord substantial deference to the legislature and its

policy judgments as reflected in statutorily mandated

sentences,’ the Arizona Supreme Court enumerated “the

primacy of the legislature in determining sentencing, the variety

of legitimate penological schemes, the nature of the federal

system, and the requirement that objective factors guide

proportionality review” as the “several principles” that guide

the threshold “gross-disproportionality” inquiry and inform

“the broader notion that the Eighth Amendment ‘does not

require strict proportionality between crime and sentence’ but

instead forbids only extreme sentences that are ‘grossly

disproportionate to the crime.’” Pet. App. at 6a-7a (quoting

Ewing, 538 U.S. at 23 (O’Connor, J., concurring) (quoting

Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring)).

The Arizona Supreme Court observed that this Court had

most recently rejected a recidivist’s Eighth Amendment

challenge to a prison term of 25 years to life under California’s

“three strikes statute” because: (1) “the State of Califormia had a

‘reasonable basis’ for believing the law would substantially

advance the goals of incapacitating repeat offenders and

deterring crime’; and (2) the statute “reflects a rational

legislative judgment, entitled to deference, that offenders who

have committed serious or violent felonies and who continue to

commit felonies must be incapacitated.” Pet. App. at 7a

(quoting Ewing, 538 U.S. at 28, 30). In similar vein, the

majority observed that this Court previously rejected a

challenge to a mandatory sentence of life imprisonment without

parole for a first-time offender convicted of possessing 672

grams of cocaine in Harmelin, with Justice Kennedy observing

“that the Michigan legislature could with reason conclude that

the threat posed to the individual and society by possession of

this large an amount of cocaine—in terms of violence, crime,

and social displacement—-1s momentous enough to warrant the

deterrence and retribution of a life sentence without parole.”

Pet. App. at 8a (quoting Harmelin, 501 U.S. at 1003-04

(Kennedy, J., concurring)). The Arizona Supreme Court thus

concluded that its analysis of Petitioner’s Eighth Amendment

challenge would be “guided” by the following framework: “{a]

prison sentence is not grossly disproportionate, and a court

need not proceed beyond the threshold inquiry, if it arguably

furthers the State’s penological goals and thus reflects ‘a

rational legislative judgment, entitled to deference.’” Pet. App.

at 9a (quoting Ewing, 538 US. at 30).

The Arizona Supreme Court recognized, “It is evident

beyond the need for elaboration that a State’s interest in

‘safeguarding the physical and psychological well-being of a

minor’ is ‘compelling,’ and that “the use of children as

subjects of pormographic materials is harmful to the

physiological, emotional, and mental health of the child.” Pet.

App. at 9a (quoting Osborne v. Ohio, 495 U.S. 103, 109 (1990)

(quoting New York v. Ferber, 458 U.S. 747, 756-58 (1982)).

The majority likewise acknowledged that the victims of child

pornography continue to suffer substantial harm long after the

material’s production. Pet. App. at 10a. The Arizona Supreme

Court thus concluded that cnminalizing the possession of child

pornography is “tied directly to state efforts to deter its

production and distribution ‘at all levels in the distribution

chain,’” encourages the destruction of these materials, and

furthers the “goal of combating the sexual abuse and

exploitation inherent in child pornography.” Pet. App. at 10a

(quoting Osborne, 495 U.S. at 110).

Recounting the legislative history of Arizona’s current

child-pornography statutes, the Arizona Supreme Court

observed that Arnzona first banned child-pornography

possession in 1983 with legislation that implicitly

acknowledged “the fact that producers of child pornography

exist due to the demand for such materials.” Pet. App. at 11a.

The court further noted that the Arizona Legislature

subsequently included the offense of possession of child

pornography among the “dangerous crimes against children”

targeted in A.R.S. § 13-604.01—a statute which prescribes

“lengthy periods of incarceration . . . intended to punish and

deter” “those predators who pose a direct and continuing threat

to the children of Arizona.” Pet. App. at 11a-12a. The court thus

concluded, “Given this history . . . the legislature had a

‘reasonable basis for believing’ that mandatory and lengthy

prison sentences for the possession of child pornography would

‘advance[] the goals of [Arizona’s] criminal justice system in

[a] substantial way.”” Pet. App. at 12a (quoting Ewing, 538 U.S.

at 28; alterations in orginal).

The Arizona Supreme Court next compared the gravity of

the offense against the severity of Petitioner’s sentences. The

majority observed that Petitioner did not dispute that child

pornography, “a felony under federal and most state laws,”’ is a

“very serious” crime. Pet. App. at 13a. Rejecting Petitioner’s

contention that he had received a “200 year flat-time sentence

upon his conviction of possession of child pornography,” the

Arizona Supreme Court concluded that Petit’ ier, like the

defendant in Ewing, had “incorrectly frame[d] the issue at the

threshold,” observing that Petitioner had actually been

“convicted of twenty separate counts of possession of child

pornography involving minors under fifteen, and he was

sentenced to a ten-year term for each count . . . [to] be served

consecutively.” Pet. App. at 12a. The court reached this

conclusion because each of Petitioner’s twenty counts “was

based on a different video or image, the images involved s-.ne

fifteen different child victims, and [Petitioner] had accumulated

the images over a 6-year period.” Pet. App. at 13a.

The Arizona Supreme Court provided two additional

reasons for focusing its gross-disproportionality analysis “‘on

whether a ten-year sentence is disproportionate for a conviction

of possessing child pornography involving children under

fifteen.” Jd. First, “[a] defendant has no constitutional right to

concurrent sentences for two separate crimes involving separate

acts.” Jd. Second, “Eighth Amendment analysis focuses on the

sentence imposed for each specific crime, not on the cumulative

sentence.” Pet. App. at 14a (quoting United States v. Aiello, 864

F.2d 257, 265 (2° Cir. 1988)). Consequently, the court

concluded:

Thus, if the sentence for a particular offense is not

disproportionately long, it does not become so merely

because it is consecutive to another sentence for a

separate offense or because the consecutive sentences

are lengthy in the aggregate. .. . This proposition holds

true even if a defendant faces a total sentence exceeding

a normal life expectancy as a result of consecutive

sentences.

Pet. App. at 14.

Based upon this Court’s Eighth Amendment jurisprudence

and its own precedent, the Anzona Supreme Court concluded

that Petitioner’s ten-year prison term per count was not grossly

disproportionate to his cnme of child-pormnography possession:

The Supreme Court has affirmed a sentence of

twenty-five years to life for the grand theft of three golf

clubs worth nearly $1200 by a recidivist felon, Ewing,

538 U.S. at 30-32, 123 S.Ct. 1179; upheld a sentence of

life in prison without parole for a first-time offender

possessing 672 grams of cocaine, Harmelin, 501 U.S. at

996, 111 S.Ct. 2680; and found no Eighth Amendment

violation in two consecutive twenty-year prison terms

for possession of nine ounces of marijuana with intent

to distribute, Hutto v. Davis, 454 U.S. 370, 374, 102

S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam).

Similarly, this court has upheld a sentence of twenty-

five years without parole for a twenty-one-year-old

defendant convicted of selling a $1 marijuana cigarette

to a fourteen-year-old, even though this sentence was

consecutive to a twenty-one-year sentence for the

defendant’s trafficking in stolen property with the same

juvenile.

Pet. App. at 1Sa.

The Anzona Supreme Court observed that “only once in the

past quarter century has [this Court] sustained an Eighth

Amendment challenge to the length of a prison sentence.” /d.

(citing Solem v. Helm, 463 U.S. 277 (1983)). The court

distinguished Solem from the instant case on two grounds: (1)

in Solem, the defendant was sentenced to life imprisonment

without parole, “the most severe punishment the State could

have imposed,” for the “quite minor crime” of uttering a no-

account check, “one of the most passive felonies a person could

commit,” Pet. App. at 15a (quoting Solem, 463 U.S. at 296-97);

and (2) Solem “did not involve a mandatory sentence, but

instead concerned a judge’s discretionary decision to impose

the maximum authorized sentence [and} [t]hus . . . did not

implicate the ‘traditional deference’ that courts must afford to

10

legislative policy choices when reviewing statutorily mandated

sentences,” Pet. App. at 16a.

Based upon the overwhelming evidence of Petitioner’s

large-scale, deliberate, and long-term acquisition of child

pornography, the Arizona Supreme Court concluded, “[I]n the

terminology of Ewing, [Petitioner’s] sentences are ‘amply

supported’ by evidence indicating his ‘long, serious’ pursuit of

illegal depictions and are ‘justified by the State’s public-safety

interest’ in deterring the production and possession of child

pomography.” Pet. App. at 17a (quoting Ewing, 538 U.S. at 29-

30). The aforementioned evidence likewise prompted the court

to conclude that Petitioner’s proscribed conduct fell within “the

core, not the periphery, of the prohibitions of A.R.S. § 13-

3553(A)(2)—the knowing possession of visual depi¢tions of

sexual conduct involving minors.” Pet. App. at 20a. The

Arizona Supreme Court therefore declined Petitioner’s

invitation to consider the cumulative effect of consecutive

sentences imposed on him. Pet. App. at 19a.

Thus, given “the legislature’s intent to deter and punish

those who participate in the child pornography industry, and

{Petitioner’s} commission of twenty separate offenses,” the

court affirmed Petitioner’s sentences without conducting inter-

and intra-jurisdictional analyses, based upon its conclusion that

“the twenty consecutive ten-year sentences are not grossly

disproportionate to his crimes.” Pet. App. at 24a.

Concurring “‘fully . . . in the analysis and result reached by

the majority in this case,”’ Justice Hurwitz nonetheless wrote

scparately to respond to Justice Berch’s concurring and

dissenting opinion, which suggested that Eighth Amendment

analysis “would be easier if courts were allowed to conduct an

intra- and inter-jurisdictional analysis at the outset in order to

find an inference of gross disproportionality.”’ Pet. App. at 25a-

11

26a. After acknowledging that Harmelin foreclosed such an

approach, Justice Hurwitz proceeded to consider the penalties

imposed for other crimes in Arizona and for the same offense in

other jurisdictions and nonetheless concluded that such

extended analyses failed to raise an inference of gross

disproportionality. Pet. App. at 26a-27a. Addressing Justice

Berch’s “real concern . . . that Arizona law requires that a court

impose consecutive ten-year sentences for each offense,”

Justice Hurwitz observed that this Court’s Eighth Amendment

jurisprudence: (1) “rejected the notion that mandatory flat

sentences violate the Constitution because they do not allow

consideration of the particular situation of the offender”; and

(2) does not “allow .. . find[ing] consecutive sentences for

separate crimes unconstitutional if the individual sentences for

each «ime are not.” Pet. App. at 28a (emphasis in original).

Disagreeing with the majority’s focus upon the specific

sentence imposed for each count, Justice Berch issued a

concurring and dissenting opinion wherein she maintained,

“{Ijn determining whether a total sentence is grossly

disproportionate to the crime for which it was meted out as

punishment, we must deal with the sentence imposed as a

whole and not shield ourselves from the full impact of the

sentence by analyzing only one charge and sentence.” Pet. App.

at 36a-37a. Despite concurring with the majority’s “statements

of the rules emanating from the Harmelin line of cases,” Justice

Berch “would find that a minimum mandatory sentence of 200

years for possession of twenty pornographic images raises an

inference of gross disproportionality that requires additional

analysis before ultimately the court determines whether the

sentence is unconstitutionally disproportionate.” Pet. App. at

41a.

12

ARGUMENT

Petitioner contends that the Arizona Supreme Court’s

Eighth Amendment analysis was defective because the majority

failed to consider the aggregate length of his twenty statutorily

mandated consecutive ten-year prison terms when comparing

the gravity of his crimes against the severity of his sentences.

Petitioner further argues that had the Anzona Supreme Court

not focused its analysis on the constitutionality of the ten-year

prison terms imposed for each count of possession of child

pomography, the majority would have been compelled to find

an inference of gross disproportionality, conduct both intra- and

inter-jurisdictional comparative analyses, and thus conclude

that his sentences violated the Eighth Amendment. However,

the Arizona Supreme Court properly found each ten-year prison

term constitutional and employed the proper standard to

consider Petitioner’s constitutional attack on the cumulative

length of his consecutive sentences. The Arizona Supreme

Court’s opinion not only is faithful to the decisions of this

Court, but also comports with well-established lower-court

precedent governing Eighth Amendment challenges to the

aggregate length of multiple prison terms, none of which

individually constitute crue] and unusual punishment. Thus,

further review is not warranted.

A. PETITIONER’S TEN-YEAR PRISON TERM PER COUNT IS

CONSTITUTIONAL.

The Arizona Supreme Court correctly held that Petitioner’s

ten-year prison term per count of possession of child

pornography did not raise an inference of gross

disproportionality, for two reasons. First, the ten-year sentence

imposed for this crime is less severe than other prison terms

that this Court upheld as punishment for far less serious

offenses. See Lockyer v. Andrade, 538 U.S. 63, 77 (2003)

13

(upholding two statutorily-mandated consecutive prison terms

of 25 years to life for two counts of petty theft under

California’s recidivist statute); EF .ag, 538 U.S. at 30-31

(upholding mandatory prison term of 25 years to life for

California recidivist convicted of felony grand theft); Harmelin,

501 U.S. at 1005 (upholding mandatory life imprisonment

without parole for a first-time offender who stood convicted of

simple possession of 672 grams of cocaine); Hutto, 454 US. at

375 (upholding two consecutive 20-year prison terms imposed

for selling 3 ounces of marijuana and possessing 6 ounces of

marijuana for distribution); Rummel v. Estelle, 445 U.S. 263,

285 (1980) (upholding life sentence, with parole eligibility,

imposed upon a Texas recidivist whose three theft-related

crimes involved money and property having an aggregate worth

of $229.11).

Second, the Arizona Supreme Court properly held that the

legislature “had a ‘reasonable basis for believing’ that

mandatory and lengthy prison sentences for the possession of

child pornography would ‘advance[] the goals of [Arizona’s]

criminal justice system in [a] substantial way.’” Pet. App. at 12a

(quoting Ewing, 538 U.S. at 28; alterations in onginal). Indeed,

this Court previously found it “surely reasonable for the State to

conclude that it will decrease the production of child

pornography if it penalizes those who possess and view the

product, thereby decreasing demand.” Osborne, 495 US. at

109-10. Thus, the Anzona Legislature had a reasonable basis to

believe that mandating severe prison terms for this crime would

reduce the sexual abuse of children by significantly deterring

and incapacitating child-pomography consumers. “Notably,

both of these penological theories [deterrence and

incapacitation] have been held by the Supreme Court to be

valid and subject to deference by the courts.”’ United States v.

Angelos, 433 F.3d 738, 751 (10" Cir. 2006) (citing Ewing, 538

U.S. at 24-28, and Harmelin, 501 U.S. at 998-99).

14

Although Petitioner contends that Arizona’s mandatory

minimum sentence ranks as the Nation’s harshest for his crime,

“the circumstance that a State has the most severe punishment

for a particular crime does not by itself render the punishment

grossly disproportionate.” Harmelin, 501 U.S. at 1000

(Kennedy, J., concurring); see also Rummel, 445 U:S. at 281

(“Even were we to assume that the statute employed against

Rummel was the most stringent found in the 50 states, that

severity would hardly render Rummel’s punishment ‘grossly

disproportionate’ to his offenses.”’).’

Because comparison of the gravity of Petitioner’s crime to

the severity of his ten-year prison term did not give mise to an

inference of gross disproportionality, the Arizona Supreme

Court properly rejected Petitioner’s Eighth Amendment claim

without conducting inter- and intra-jurisdictional analyses. See

Ewing, 538 U.S. at 23-24, 30; Harmelin, 501 U.S. at 1005

(Kennedy, J., concurring).

> As Justice Hurwitz made clear in his concurring opinion, other

jurisdictions prescribe penalties for child pornography possession that are at

least as long as the ten-year prison term that Petitioner received for obtaining

images of children under 15. Pet. App. at 27a (Hurtwitz, J., concurring). See,

eg., 18 U.S.C. § 2252(a)(1), (b)(1) (2000) (sentencing range of 5 to 20

years’ imprisonment); Ga. Code Ann. § 16-12-100 (2003) (5 to 20 years”

impmsonment); Miss. Code Ann. § 97-5-35 (2005) (5 to 40 years’

imprisonment); Nev. Rev. Stat. Ann. § 200.750 (2005) (life imprisonment

with parole eligibility after 10 years); Utah Code Ann. §§ 76- S5a-3, 76-2-

203(2) (1953) (sentencing range of | to 15 years’ imprisonment).

15

B. THE AGGREGATE LENGTH OF PETITIONER’S TWENTY

CONSECUTIVE PRISON TERMS DOES NOT VIOLATE THE EIGHTH

AMENDMENT BECAUSE EACH COMPONENT TEN-YEAR PRISON

TERM IS CONSTITUTIONAL.

Despite the constitutionality of each ten-year prison term

imposed, Petitioner maintains that this Court should issue a writ

of certiorari because the Arizona Supreme Court refused “‘to

consider the full impact of Arizona’s mandatory flat,

consecutive sentencing scheme.” Petition, at 8. Although

Petitioner contends that the correct yardstick for his Eighth

Amendment claim is the aggregate length of his twenty prison

terms, the Arizona Supreme Court correctly concluded, “[I]f the

sentence for a particular offense is not disproportionately long,

it does not become so merely because it is consecutive to

another sentence or because the consecutive sentences are

lengthy in the aggregate.” Pet. App. at 14a. In selecting this

analytical framework for determining the constitutionality of

the aggregate total of Petitioner’s consecutive sentences, the

court honored the well-established principle that “Eighth

Amendment analysis focuses on the sentence imposed for each

specific crime, not on the cumulative sentence.” /d. (quoting

Aiello, 864 F.2d at 265).° This principle’s ultimate source is

O'Neil v. Vermont, 144 U.S. 323 (1892), wherein this Court—

albeit in dicta—approved the Vermont Supreme Court’s

rationale for rejecting a defendant’s “cruel and unusual

* Numerous other federal and state courts follow this approach while

reviewing Eighth Amendment challenges to consecutive prison sentences.

See United States v. Ming Hong, 242 F.3d 528 532 (4" Cir. 2001); Pearson v.

Ramos, 237 F.3d 881, 886 (7™ Cir. 2001); Hawkins v. Hargett. 200 F.3d

1279, 1285 (10" Cir. 1999); People v. Hayes, 923 P.2d 221. 229 (Colo. App.

1995); People v. Elliott, 112 N.E. 300, 304 (Ill. 1916); Malee v. State, 809

A.2d 1, 8-9 (Md. App. 2002); People v. Kennebrew, 560 N.W.2d 354, 358

(Mich. App. 1996); State v. Venman, 564 A.2d 574, 582 (Vt. 1989);

Wahleithner v Thompson, 143 P.3d 321, 323, § 12 (Wash. App. 2006).

16

punishment” challenge to his cumulative sentences for 307

counts of selling intoxicating liquor—19,914 days of

incarceration and fines totaling $6,638.72:

If he has subjected himself to a severe penalty, it is

simply because he has committed a great many such

offenses. It would scarcely be competent for a person to

assail the constitutionality of the statute prescribing a

punishment for burglary on the ground that he had

committed so many burglaries that, if punishment for

each were inflicted on him, he might be kept in prison

for life. The mere fact that cumulative punishments may

be imposed for distinct offenses in the same prosecution

is not material upon this question. If the penalty were

unreasonably severe for a single offense, the

constitutional question might be urged; but here the

unreasonableness is only in the number of offenses

which the respondent has committed.

Id. at 331 (quoting State v. O'Neil, 2 A. 586, 593 (Vt. 1886))

(emphasis in orginal opinion).

Based upon the rationale set forth in O'Neil, numerous

courts, including the Arizona Supreme Court in the instant case,

have applied the following rule: “Consecutive sentences of

imprisonment for conviction of separate offenses do not render

a punishment cruel and unusual, where the penalty upon

conviction of each offense is itself valid.” State v. Dillard, 320

So.2d 116, 122 (La. 1975).4 Moreover, this Court’s

* See also United States v. Beverly, 369 F.3d 516, 537 (6" Cir. 2004)

(upholding statutonly-mandated consecutive sentences totaling over 71 years

where none of the individual sentences was “intrinsically ‘grossly

disproportionate’ to the crime’’); Walton v. Scott, 445 S.W.2d 97, 99 (Ark.

1969) (“We can find in the constitution no yardstick enabling us to announce

(Continued)

17

jurisprudence since O'Neil continues to reflect the view that a

defendant should not be allowed to escape full punishment for

multiple crimes, based upon the cumulative effect of otherwise

constitutional sentences. See Lockyer, 538 U.S. at 74 nl

(rejecting the dissent’s characterization of Andrade’s sentence

‘as punishment for the total amount he stole’ because

“California law specifically provides that each violation of Cal.

Penal Code Ann. § 666 (West. Supp. 2002) triggers a separate

(Continued).

with confidence that the penalty is valid when one package is involved, that

it 1s valid when 120 packages are involved, but that it is not valid when 894

packages are involved.”’): Cole v. State, 262 So.2d 902, 903 (Fla. App. 1972)

(“The direction by the trial court for the sentences to be served consecutively

did not operate to make the several lawful sentences constitute cruel or

unusual punishment.”): E//iott, 112 N.E. at 304 (“The statute prescribing a

penalty for unlawful sales of liquor is valid, and the validity of the sentences

is not affected by the fact that there were numerous violations and

cumulative penalties.”’); Kaylor v. State, 400 A.2d 419, 422 (Md. App. 1979)

(“However. it 1s settled law that consecutive sentences do not constitute

cruel and unusual punishment where the length of each sentence is within

the limits prescribed by statute.”); People v. Miles, 559 N.W.2d 299, 301-02

(Mich. 1997) (approving the holding in People v. Warner, 476 N.W.2d 660

(Mich. App. 1991). that courts need not consider the cumulative length of

consecutive sentences when each individual sentence is constitutional); State

v. Poole (Robert). 100 N.W. 647, 647-48 (Minn. 1904) (holding that the

cumulative fines and incarceration imposed for multiple violations of game-

protection statute would not constitute cruel and unusual punishment where

each sentence was constitutional); State v. Repp, 603 S.W.2d 569, 571 (Mo.

1980) (holding that “where [a] defendant is convicted of separate offenses

and the sentences imposed are within statutory limits, [the] consecutive

effect of the sentences does not constitute cruel and unusual punishment”),

State v. Padilla. 509 P.2d 1335, 1338 (N.M. 1973) (“[The defendant} also

recognizes thar the imposition of multiple valid sentences to run

consecutively does not, as such, constitute cruel and unusual punishment as

contemplated by the Eighth Amendment to the Constitution of the United

States.”). Brinkley v State, 143 S.W. 1120, 1123 (Tenn. 1911) (upholding

the imposition of additional fines and jail terms per each additional crime

committed where the prescribed sentence for each violation was

constitutional)

18

application of the three strikes law, if the different felony

counts are ‘not arising from the same set of operative facts’”’)

(emphasis in original); Badders v. United States, 240 U.S. 391,

393-94 (1916) (holding that the imposition of seven $1,000

fines against a defendant convicted of seven counts of mail

fraud presented “no ground for declaring the punishment

unconstitutional’’).

Petitioner’s challenge to the cumulative total of his

individually constitutional prison terms is essentially a thinly-

disguised claim that he is constitutionally entitled to concurrent

sentences for multiple crimes—a nght that would absurdly

allow him to evade the full extent of punishment legislatively

prescribed for his crimes. However, there exists “no

constitutional mght to receive concurrent sentences for two

separate offenses.” Rosemond v. State, 756 P.2d 1180, 1181

(Nev. 1988); see also United States v. Candia, 454 F.3d 468,

474 (5" Cir. 2006); United States v. White, 240 F.3d 127, 135

(2" Cir. 2001); State v. Jonas, 792 P.2d 705, 712 (Ariz. 1990);

State v. Moliga, 747 P.2d 81, 85 (Idaho App. 1987); Bewley v.

State, 220 N.E.2d 612, 613 (Ind. 1966). Indeed, as the

Connecticut Supreme Court observed, “It would be

preposterous to hold that a person who commits a crime has a

constitutional right to escape punishment for it.” State v.

McNally, 211 A.2d 162, 164 (Conn. 1965); see also United

States v. Schell, 692 F.2d 672, 675 (10 Cir. 1982) (“The

Eighth Amendment does not prohibit a state from punishing

defendants for the crimes they commit; the amendment

prohibits a sentence nly if it is grossly disproportionate to the

severity of the crime.”’); State v. August, 589 N.W.2d 740, 744

(lowa 1999) (“There is nothing cruel and unusual about

punishing a person committing fwo crimes more severely than a

person committing only one cnme, which is the effect of

consecutive sentencing.”) (emphasis in original); Malee, 809

A.2d at 9 (upholding imposition of multiple consecutive

19

sentences as “preventing duly convicted offenders from

escaping punishment of their criminal acts”’); State v. Murray,

563 A.2d 488, 500 (N.J. App. 1990) (rejecting challenge to

imposition of consecutive sentences because “there can be no

free crimes in a system for which the punishment shall fit the

crime.’’).

“Consecutive sentences are an appropriate mechanism for

imposing a distinct punishment for each of two criminal acts.”

United States v. Woods, 440 F.3d 255, 260 (5" Cir. 2006); see

also United States v. Lustig, 555 F.2d 751 753 (9" Cir. 1975);

Kaylor, 400 A.2d at 423. “Mandating consecutive sentences is

not an unreasonable method of attempting to deter a criminal,

who has committed several offenses . . . from doing so again.”

United States v. Beverly, 369 F.3d 516, 537 (6" Cir. 2004); see

also United States v. Angelos, 433 F.3d 738, 751 (10" Cir.

2006) (upholding mandatory consecutive sentences to deter and

incapacitate those who repeatedly commit serious felonies with

firearms); People v. Preciado, 116 Cal.App.3d 409, 412, 172

Cal. Rptr. 107, 108-09 (1981) (upholding the mandatory

imposition of consecutive sentences for multiple violent rapes

because the defendant’s resulting punishment was “directly

proportionate to the number and violence of his crimes”).

The fact that Petitioner’s twenty consecutive prison terms

cumulatively exceed his life expectancy does not render them

unconstitutional. As the Sixth Circuit correctly observed, “The

Supreme Court has never held that a sentence to a specific term

of years, even if it might tum out to be more than the

reasonable life expectancy of the defendant, constitutes cruel

and unusual punishment.” Beverly, 369 F.3d at 537; see also

United States v. Khan, 461 F.3d 477, 495 (4" Cir. 2006)

(same); Angelos, 433 F.3d at 753 (same); United States v.

Yousef, 327 F.3d 56, 163 (2° Cir. 2003) (“Lengthy prison

sentences, even those that exceed any conceivable life

20

expectancy of a convicted defendant, do not violate the Eighth

Amendment’s prohibition against cruel and unusual} punishment

when based on a proper application of the Sentencing

Guidelines or statutorily mandated prison terms.’’) (collecting

cases); Thompson v. State, 658 S.W.2d 350, 270 (Ark. 1983)

(“We have previously stated that the cumulative effect of

consecutive sentences does not make punishment cruel and

unusual.”); State v. Laffey, 600 N.W.2d 57, 61 (Iowa 1999)

(“The fact that these sentences mean that Laffey spends the

remainder of his life in prison is not a factor in our analysis.”’);

State v. Nunn, 802 P.2d 547, 551 (Kan. 1990) (“The fact that

the minimum sentence imposed by a trial court exceeds the life

expectancy of the defendant has never been grounds, per se, for

a finding that the sentence is oppressive.”).

The mandatory consecutive nature of Petitioner’s twenty

prison terms likewise causes no constitutional insult. “Severe,

mandatory renalties may be cruel, but they are not unusual in

the constitutional sense, having been employed in various

forms throughout our Nation’s history.” Harmelin, 501 U.S. at

994-95. The Eighth Amendment does not prohibit the

imposition of one mandatory life sentence as punishment for

one serious crime. /d. at 993-96, 1008-09. Likewise, the Eighth

Amendment does not prohibit the imposition of twenty

mandatory consecutive prison terms as punishment for twenty

serious crimes, notwithstanding the fact that their cumulative

length exceeds Petitioner’s anticipated life expectancy. See,

e.g., Locayer, 538 U.S. at 68, 77 (upholding two statutorily-

mandated consecutive prison terms of 25 years to life); United

States v. Hungerford, 465 F.3d 1113, 1118 (9" Cir. 2006)

(consecutive sentences totaling 159 years); Angelos, 433 F.3d

at 750-53 (consecutive sentences totaling 80 years); Beverly,

369 F.3d at 536-37 (consecutive sentences totaling 71.5 years);

United States v. Arrington, 159 F.3d 1069, 1073 (7"" Cir. 1998)

21

(total of 65 years); State v. Taylor, 773 P.2d 974, 981 (An

1989) (85 consecutive sentences totaling 2,975 years).

Petitioner offers several alternative arguments to

circumvent the effect of the aiviementioned authorities.

Seeking to recast his twenty prison terms as a single 200-year

sentence, Petitioner cites Weems v. Uw 2a States, 217 U.S. 349

(1910), for the proposition that “this Court has held that it is

appropriate for courts to review an entire sentence to determine

if it is grossly disproportionate to the crime.” Petition, at 11.

However, Weems is inapposite, for three reasons. First, whereas

the defendant in Weems challenged the constitutionality of the

one sentence he received for one count of falsification of an

official document, Petitioner attacks twenty separate sentences

* Petitioner complains that his mandatory consecutive sentences violate

the Eighth Amendment because they exceed his life span and fails to offer

him an opportunity to rehabilitate. Petition, at 18. This argument is of no

moment because this Court previously upheld a sentence of life

imprisonment without parole imposed upon a defendant who also had no

prior convictions. See Harmelin, 501 U.S. at 994, 1002-09. Moreover, “the

Eighth Amendment does not mandate adoption of any one penological

theory.” /d. at 999 (Kennedy J., concurring); see also Ewing, $38 US. at 25

(“A sentence can have a variety of justifications, such as mcapacitation,

deterrence, retribution, or rehabilitation. . . . Selecting the sentencing

rationales 1s generally a policy choice to be made by state legislatures. not

federal courts.”); cf Deal v. United States, 508 U.S. 129, 137 (1993)

(refusing to apply ru’e of lenity to defendant who received six prison

sentences totaling 105 years, based upon six armed robbenes, where the

defendant “manz.ged to evade detection, prosecution, and conviction for the

first five offenses and was ultimately tned: for all six in a single

proceeding’). Moreover, Petitioner’s claum that he had no opportunity to

rehabilitate 1s rebutted by the fact that he had amassed a large collection of

child pornography over the 6-year penod preceding his arrest. “He could

have realized he had made a gross mistake and have reformed himself after

commutting his first offense.” People v. Poole (Terry), SSS N.W.2d 485, 492

(Mich. App. 1996).

22

that were imposed for twenty counts of sexual exploitation of a

child. Second, while Petitioner is merely challenging the /ength

of his prison terms, Weems challenged his “entire sentence,”

which included incarceration for fifteen years and non-

severable statutory “accessories,” such as “hard and painful

labor,” permanent shackling of the wrists and ankles, and

lifetime surveillance. 217 U.S. at 357-59, 381-82; see also

Harmelin, 501 U.S. at 990 (describing Weems’ sentence).

Third, the inisplaced nature of Petitioner’s reliance on Weems is

manifested by the refusal of numerous courts to treat as one

sentence the multiple sanctions that a defendant received as

punishment for multiple offenses. See, e.g., Ming Hong, 242

F.3d at 532; Pearson, 237 F.3d at 886; Malee, 809 A.2d at 8-

10; Warner, 476 N.W.2d at 660.

Petitioner further suggests that his prison terms should be

viewed as a single 200-year sentence because his twenty counts

of conviction allegedly arose from the same continuing act.

(Petition, at 11-12.) Petitioner analogizes his case to State ex

rel. Garvey v. Whitaker, 19 So. 457 (La. 1896),° wherein the

° Petitioner claims that Justice Scalia cited the sentence in Garvey as an

example of crue] and unusual punishment in Harmelin. (Petition, at 11,

citing Harmelin, 501 U.S. at 985, n.10.) This assertion is false. Justice Scalia

cited to Garvey in a foomote to his observation, “In the 19" century, judicial

agreement that a ‘cruel and unusual’ (or ‘cruel or unusual’) provision did not

constitute a proportionality requirement appears to have been universal.” 501

U.S. at 984. Justice Scalia’s footnote asserted that neither Garvey nor State

v. Driver, 78 N.C. 423 (1878), “is to the contrary,” because these two cases

were “examples of applying, not a proportionality principle, but rather the

principle . . . that a punishment is ‘cruel and unusual! if it is illegal because

not sanctioned by common law or statute.” /d. at 984 n.10. Justice Scalia’s

“fair reading” of Garvey was “that the sentence was cruel and unusual

because it was illegal.” Jd. In contrast to Garvey, the Anzona Supreme Court

did nor find the imposition of consecutive sentences in Petitioner’s case to be

iliegal because Petitioner had acquired the visual images constituting the

(Continued)

23

Louisiana Supreme Court invalidated multiple sentences of

confinement for 2,160 days, based upon 72 consecutive thirty-

day prison terms imposed for 72 distinct violations of a

trespassing ordinance occurring over a temporally contiguous

period of 1 hour and 40 minutes, with “each offense embracing

only one and one-half minutes and one offense following after

the other immediately and consecutively.” Petition, at 12

(quoting Garvey, 19 So. at 459). Garvey does not apply to this

case because Petitioner’s crimes were not one continuous

offense. The Arizona Supreme Court specifically found that:

(1) Petitioner “had accumulated the images over a six-year

period,” Pet. App. at 13a; (2) Petitioner “had obtained at least

two images in 1996, some six years before his arrest,” Pet. App.

at 17a; and (3) the evidence indicated that “from 1996 to 2002,

[Petitioner] had downloaded computer files containing child

pornography” and “created both computer and hard copy filing

systems to maintain his collection,” Pet. App. at 3a. The

Arizona Supreme Court’s factual findings effectively rendered

moot the question whether a person could be convicted and

sentenced for multiple images acquired simultaneously. Pet.

App. at 13a, 25a n.6.

Finally, Petitioner adopts Justice Berch’s dissenting view

that the Arizona Supreme Court imprudently ignored “the

nature of this offense, that possessors of child pornography

possess more than one image and for more than one day,” when

it resolved his challenge to the cumulative length of his twenty

ten-year prison terms by focusing on the sentence imposed for

each count. Petition, at 12-13, 18. The essence of both Justice

Berch and Petitioner’s complaint is that the Arizona Legislature

unwisely enacted a sentencing scheme that mandates a separate

(Continued).

basis for his twenty counts and consecutive sentences at different times

during the course of six years. Pet. App. at 13a, 17a, 25a n.6.

24

prison term for each individual visual image possessed, and that

“the nature of the offense” should have instead prompted the

legislature to impose a single prison term for possession of

some unspecified number of multiple images. However, fixing

the number of contraband images that may be punished within a

single prison term is a subjective, policy determination that this

Court has found to rest “properly within the province of

legislatures, not courts.” Rummel, 445 U.S. at 275-76 (rejecting

defendant’s challenge to the small amount of stolen money

required to trigger application of Texas’ recidivist statute); see

also Jonas, 792 P.2d at 711 (“However, it is not the function of

this court to engage in determining what minimum amount of

marijuana need be involved in a ‘serious’ offense; that line-

drawing function is properly one for the legislature.’’). As this

Court previously observed, “This criticism is appropriately

directed at the legislature, which has primary responsibility for

making the difficult policy choices that underlie any criminal

sentencing scheme.” Ewing, 538 U.S. at 28.

Petitioner’s criticism of Arizona’s sentencing scheme also

erroneously overlooks the three goals that motivated the

Arizona Legislature to impose a separate penalty for each

visual image: (1) decreasing the number of children sexually

abused during the production of these materials by reducing

demand through deterrence; (2) depriving molesters of a tool of

seduction by encouraging destruction of their child-

pornography collections; and (3) punishing violators for the

separate injury inflicted by each image’s existence. Pet. App. at

lla-12a (citing 1978 Ariz. Sess. Laws 1978, Ch. 200,

§ 2(A)(5)-(6)); see also Osborne, 495 U.S. at 110-11; Ferber,

458 U.S. at 759; United States v. Hersh, 297 F.3d 1233, 1242

(11" Cir. 2002); United States v. Sherman, 268 F.3d 539, 545

(7 Cir. 2001); United States v. Norris, 159 F.3d 926, 931 (5"

Cir. 1998); State v. Emond, 786 P.2d 989, 990-93 (Anz. App.

1990); Perry v. Commonwealth, 780 N.E.2d 53, 57 n.5 (Mass.

25

2002). Moreover, the Arizona Legislature’s policy decision to

mandate a consecutive prison term for each one of a

defendant’s contraband images is constitutional because this

sentencing scheme rationally advances the legitimate objective

of punishing more harshly those persons whose demand for

child pornography most fueled the industry of sexually

exploiting children. See, e.g., Beverly, 369 F.3d at 537

(upholding the mandatory imposition of consecutive prison

terms as serving “the twin goals of retribution and deterrence’’);

Preciado, 116 Cal.App.3d at 412, 172 Cal.Rptr. at 108 (“By

requiring a full, separate, and consecutive term for each rape,

{the penal statute] attempts to provide increased punishment in

cases of greater culpability based upon injury to the victims and

society.”) (citation omitted); August, 740 N.W.2d at 744

(upholding the imposition of consecutive sentences as a proper

method of graduating punishment according to number of

crimes committed); Poole (Robert), 100 N.W. at 648 (“This

method of fitting the punishment to the crime by graduating the

penalty according to the number of animals, birds, or fish

unlawfully killed, taken, or possessed has been adopted by the

statutes of many of our sister states, and sustained as a proper

exercise of legislative discretion.”).’

” Petitioner argues that the Arizona Supreme Court improperly rejected

his request for an evidentiary hearing, at which he intended to present

mitigating evidence to establish the disproportionate nature of his mandatory

consecutive sentences. Pet. App. at 22a-23a. However, this Court has

consistently rejected the notion of “individualized sentencing” in non-capital

cases. See Harmelin, 501 U.S. at 996 (“We have drawn the line of required

individualized sentencing at capital cases, and see no basis for extending it

further.”): id at 1006 (“The Court demonswates that our Eighth Amendment

capital decisions reject any requirement of individualized sentencing in non-

capital cases.) (Kennedy, J., concurring).

26

C. THE ARIZONA SUPREME COURT PROPERLY CONSTRUED

LOCKYER.

Finally, Petitioner contends that this Court should grant

further review because the Arizona Supreme Court allegedly

misconstrued Lockyer “as prohibiting courts from considering

the consecutive nature of a sentence in an Eighth Amendment

challenge.” Petition, at 10. However, Petitioner misreads the

import of the Anzona Supreme Court’s majority opinion’s

citations to Lockyer in the instant case. The challenged passage,

in its entirety, reads as follows:

“Eighth amendment analysis focuses on the

sentence imposed for each specific crime, not on the

cumulative sentence.” United States v. Aiello, 864 F.2d

257, 265 (2° Cir. 1988). Thus, if the sentence for a

particular offense is not disproportionately long, it does

not become so merely because it is consecutive to

another sentence for a separate offense or because the

consecutive sentences are lengthy in aggregate. See

Jonas, 164 Ariz. at 249, 792 P.2d at 712. This

proposition holds true even if a defendant faces a total

sentence exceeding a normal life expectancy as a result

of consecutive sentences. See, e.g., Lockyer, 538 U.S. at

74n. i, 123 S.Ct. 1166 (rejecting, in context of federal

habeas review, dissent’s argument that two consecutive

sentences of twenty-five years to life for separate

offenses were equivalent; for purposes of Eighth

Amendment analysis, to one sentence of life without

parole for thirty-seven-year-old defendant); United

States v. Beverly, 369 F.3d 516, 537 (6" Cir 2004);

Taylor, 160 Ariz. at 422, 773 P.2d at 981.

Pet. App. at 14a.

27

Nowhere in this passage does the majority state its

belief that Lockver absolutely precludes consideration of

the aggregate length of Petitioner’s prison terms. Instead,

the court merely cited Lockyer, Beverly, and Taylor as three

illustrative cases demonstrating that consecutive sentences

do not become unconstitutional “merely because” “a

defendant faces a total sentence exceeding a normal life

expectancy as a result.”’ Pet. App. at 14a.

The paragraph and footnote immediately preceding the

passage quoted above further demonstrate Petitioner’s

misconstruction of the majority’s citation to Lockyer.

Therein, the Anzona Supreme Court explicitly reaffirmed

State v. Davis, 79 P.3d 64 (2003), which held that the

specific facts and circumstances of an extraordinary case

could call for a proportionality analysis that includes

consideration of the cumulative length of a defendant’s

consecutive prison terms. Pet. App. at 13a n.3, 18a-20a.

Simply stated, the Arizona Supreme Court would have been

forced to overrule Davis if—as Petitioner mistakenly

contends—the majority had actually construed Lockyer as

absolutely prohibiting consideration of the aggregate length

of his consecutive sentences in its proportionality analysis.°

Consequently, the Amnzona Supreme Court did not

misconstrue Lockyer when it rejected Petitioner’s Eighth

Amendment challenge to his consecutive prison sentences.

* Indeed, the Arizona Supreme Court repeatedly cited Lockver in Davis.

79 P.3d at 68, 70, 74, 9€ 13, 29-31, 47 n.10. This fact constitutes additional

proof that the majority in the instant case did nor construe Lockver in the

manner Petitioner now contends.

28

CONCLUSION

For these reasons, the State respectfully requests that this

Court deny Petitioner’s petition for writ of certiorari.

Respectfully submitted

TERRY GODDARD

Attorney General

MARY R. O’GRADY

Solicitor General

RANDALL M. HOWE

Chief Counse!

(Attorney of Record)

Criminal Appea!s Section

ROBERT A. WALSH

Assistant Attorney General

Criminal Appeals Section

1275 W. Washington

Phoenix, Anzona 85007-2997

Telephone: (602) 542-4686

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