Cocio v. Bramlett

• Decision Date: 13 April 1989
• Docket Number: No. 88-2607,88-2607
• Citation: 872 F.2d 889
• Parties: Secundino Barcelo COCIO, Petitioner-Appellee, v. Lloyd BRAMLETT, Superintendent, Arizona State Prison, Florence, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 889

872 F.2d 889

Secundino Barcelo COCIO, Petitioner-Appellee, v. Lloyd BRAMLETT, Superintendent, Arizona State Prison, Florence, Respondent-Appellant.

No. 88-2607.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Feb. 7, 1989.

Decided April 13, 1989.

Jack Roberts, Asst. Atty. Gen., Phoenix, Ariz., for respondent-appellant.

Robert Joel Hirsh, Hirsh, Sherick & Murphy, P.C., Tucson, Ariz., for petitioner-appellee.

Appeal from the United States District Court for the Arizona District Court.

Before GOODWIN, ALARCON and NELSON, Circuit Judges.

ALARCON, Circuit Judge:

The State of Arizona appeals from the district court's order granting a writ of habeas corpus. The district court concluded that, as applied to the petitioner, a life sentence without the possibility of parole for twenty-five years violated the eighth amendment. The state contends that Arizona Revised Statutes Annotated Sec. 13-604.02 (Supp.1988), which mandates a life sentence for a convicted felon on probation, is constitutionally proportionate as applied to the convicted petitioner, Secundino Barcelo Cocio. We agree with the State of Arizona that Cocio's sentence was constitutionally proportionate and reverse.

I FACTS

On March 23, 1983, Cocio and codefendant Rodriquez were involved in an automobile accident that resulted in the death of Rodriquez's brother. Cocio caused the accident by making an unsafe left turn into the side of Rodriquez's moving car. Cocio and Rodriquez were both legally intoxicated at the time of the accident. Cocio had a blood alcohol level of .28, almost three times the level of presumed intoxication in Arizona. Cocio was on probation for a felony conviction for conspiracy to commit burglary at the time of the accident.

Rodriquez pled guilty to manslaughter and driving under the influence of intoxicating liquor and received a sentence of probation for one year and a fine. Cocio refused to enter into a plea agreement and proceeded to trial. A jury convicted Cocio of manslaughter (Ariz.Rev.Stat.Ann. Sec. 13-1103) and driving under the influence (Ariz.Rev.Stat.Ann. Sec. 28-692). The jury also found Cocio guilty of using a dangerous instrumentality, his car, in the commission of the crime. Due to Cocio's probationary status and his use of a dangerous instrumentality, Cocio was sentenced to life imprisonment under Arizona Revised Statutes Annotated Sec. 13-604.02 (formerly 13-604.01). Section 13-604.02 mandates a life sentence with no opportunity of release for a minimum of twenty-five years for a convicted felon who commits a subsequent felony involving a dangerous instrumentality while on release from confinement.

Cocio appealed from the judgment imposing a punishment of life imprisonment with a twenty-five year mandatory minimum sentence to the Arizona Supreme Court. The Arizona Supreme Court affirmed the judgment. State v. Cocio, 147 Ariz. 277, 709 P.2d 1336 (1985) (en banc). The Arizona Supreme Court concluded that the evidence that Cocio deliberately committed a grave offense with a dangerous instrumentality warranted a severe penalty. In September of 1986, after exhausting his state remedies, Cocio sought a writ of habeas corpus in the District Court for the District of Arizona.

On April 13, 1988, the district court granted Cocio's petition pursuant to 28 U.S.C. Sec. 2254. The district court granted habeas corpus relief finding that the sentence violated the eighth amendment on the following grounds: 1) Cocio's life sentence was patently unfair when compared with the equally culpable codefendant's sentence; 2) Cocio's life sentence was more severe than sentences for more serious crimes in Arizona; 3) Cocio's triggering felony did not require proof of an intent to inflict serious physical injury in contrast to all other sentences previously imposed pursuant to Arizona Revised Statutes Annotated Sec. 13-604.02; and 4) Cocio's sentence was excessively severe in comparison to sentences for similar crimes in other jurisdictions. The State of Arizona filed a timely notice of appeal. The district court stayed release or resentencing pending this appeal.

II STANDARD OF REVIEW

We review independently and non-deferentially an order granting or denying a petition for habeas corpus. Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988); Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985).

III DISCUSSION

We must decide whether imposing a life sentence without possibility of release for a minimum of twenty-five years is cruel and unusual punishment when applied to a felon on probation who commits a homicide while recklessly driving under the influence of intoxicating liquor.

We recently addressed the constitutionality of a life sentence under the Eighth Amendment in Alford v. Rolfs, 867 F.2d 1216 (9th Cir.1989). In Alford we upheld a life sentence with eligibility for parole after In Alford we explained that we must follow the proportionality analysis set forth in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), to determine the constitutionality of a prison sentence against an eighth amendment challenge. Alford, at 1221-22.

                fifteen years under Washington's habitual criminal statute. 1   Id. at 1220-1223.    Alford received the life sentence for his felony conviction for possession of stolen property, because he had previously been convicted of three felonies.  Alford's previous felony convictions were for possession of a controlled substance, delivery of heroin and possession with intent to deliver heroin, and first degree forgery.  Id. at 1218
                

The Supreme Court in Solem delineated an objective three prong test for analyzing the proportionality of noncapital sentencing. 463 U.S. at 290-92, 103 S.Ct. at 3009-11. The three prongs are: 1) the gravity of the offense and harshness of the penalty; 2) the sentences imposed on other criminals in the same jurisdiction; and 3) the sentences imposed for commission of the same crime in other jurisdictions. Id.

The defendant in Solem was convicted of the felony of uttering a "no account" check. He had previously been convicted of five other felonious property offenses. Id. at 279-80, 103 S.Ct. at 3004-05. He had also suffered a sixth felony conviction for third-offense driving while intoxicated. His nonviolent criminal conduct was caused at least in part by his alcoholism. The defendant was sentenced to life imprisonment without possibility of parole, probation, or work release under South Dakota's habitual criminal statute. Id. at 281-82, 103 S.Ct. at 3005-06. The only possible form of release available to the defendant was a commutation by the governor. Id.

The Court held that imposing a life sentence without possibility of parole for the conviction of uttering a "no account" check was prohibited by the eighth amendment. Id. at 303, 103 S.Ct. at 3016. The Court reasoned that the defendant had received the maximum sentence imposed for any crime in South Dakota for a minor offense. Id. at 296-97, 103 S.Ct. at 3012-13. Additionally, the Court found that more serious offenders received less severe sentences in South Dakota. The Court also concluded that virtually all other jurisdictions would have imposed a less severe sentence. Id. at 300, 303, 103 S.Ct. at 3015-16.

We have consistently applied Solem's three part test. We have noted, however, that the analysis in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), must be applied in a situation similar to the facts presented to the Supreme Court in that case. Alford, at 1222 (citing Solem, 463 U.S. at 304, n. 32, 103 S.Ct. at 3017, n. 32). In Rummel the petitioner received a life sentence with a possibility of parole after twelve years under the Texas recidivist statute. Rummel received this sentence for his conviction for felony theft, because he had been imprisoned twice previously for felony convictions. Rummel's previous felonies were for fraudulent use of a credit card to obtain $80.00 worth of goods or services and for passing a forged check for $28.36. 445 U.S. at 265-66, 100 S.Ct. at 1134-35.

The Court in Rummel upheld the sentence noting that Rummel could be eligible for parole in twelve years. Id. at 280-81, 100 S.Ct. at 1142-43. Implicit in the Supreme Court's analysis was a recognition of the right of a state under its police power to determine the proper prison sentence that should be imposed within its borders upon habitual offenders. Id. at 274, 100 S.Ct. at 1139.

Like the petitioner in Rummel, Cocio received a life sentence with the possibility of parole. This matter differs from Rummel and Solem, however, because Cocio was convicted of committing a crime of violence. Cocio's criminal behavior resulted in the death of a human being. This difference is important because the focus in determining proportionality is not on the sentence, but on the disparity between the offense and the sentence. Solem, 463 U.S. at 285, 303, 103 S.Ct. at 3007, 3016. We

                recognize that "no penalty is per se constitutional," id. at 290, 103 S.Ct. at 3009, however, we are required to defer to the power of a state legislature to determine the appropriate punishment for violation of its laws based on principles of federalism, unless we are confronted with a rare case of a grossly disproportionate sentence.  Rummel, 445 U.S. at 274, 100 S.Ct. at 1139;  Alford, at 1221.    We conduct our proportionality review by looking at the totality of the circumstances and by applying the objective factors revealed in Solem.    463 U.S. at 290-92, 103 S.Ct. at 3009-11;  Cabana v. Bullock, 474 U.S. 376, 386, 106 S.Ct. 689, 697, 88 L.Ed.2d 704 (1985)
                

A. Gravity of the Offense and Harshness of the Penalty

The first factor we must consider under Solem is the gravity of the offense and the harshness of the penalty. The type of harm threatened or caused and the...