State v. Bartlett

• Citation: 830 P.2d 823,171 Ariz. 302
• Decision Date: 08 May 1992
• Docket Number: No. CR-88-0411-PR,CR-88-0411-PR
• Parties: , 60 USLW 2738 The STATE of Arizona, Appellee, v. Joseph BARTLETT, Jr., Appellant.
• Court: Supreme Court of Arizona

Page 823

830 P.2d 823

171 Ariz. 302, 60 USLW 2738

The STATE of Arizona, Appellee, v. Joseph BARTLETT, Jr., Appellant.

No. CR-88-0411-PR.

Supreme Court of Arizona.

May 8, 1992.

[171 Ariz. 303] Grant Woods, Atty. Gen. by Paul J. McMurdie and Diane M. Ramsey, Phoenix, for appellee.

David P. Flannigan and Hicks & Conlogue, P.C. by James L. Conlogue, Bisbee, for appellant.

OPINION

Memorandum Decision of the Court of Appeals, Division Two, filed November 10, 1988, vacated

FELDMAN, Chief Justice.

In State v. Bartlett, 164 Ariz. 229, 240, 792 P.2d 692, 703 (1990) (hereinafter Bartlett I ), we held that Joseph Bartlett, Jr.'s forty-year sentence constituted cruel and unusual punishment under the eighth amendment to the United States Constitution. The case is back before this court because the United States Supreme Court vacated our opinion and remanded for further consideration in light of its decision in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). See Arizona v. Bartlett, 501 U.S. 1246, 111 S.Ct. 2880, 115 L.Ed.2d 1046 (1991).

FACTS AND PROCEDURAL HISTORY

Joseph Bartlett, Jr. (Defendant) was convicted in 1987 of two counts of sexual conduct 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, classifying Defendant as a class 2 felon but holding that "the statutory range of sentencing under A.R.S. § 13-604.01 [could not] constitutionally 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 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 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. 164 Ariz. at 230, 792 P.2d at 693. Applying the three-prong test of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), we held:

1. 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.

2. 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. 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 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, 501 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 ----, 111 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," id. at ----, 111 S.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 proportionality principle." Id. at ----, 111 S.Ct. at 2702. He interpreted Solem as "best understood as holding that comparative analysis within and between jurisdictions is not always relevant to proportionality review." Id. at ----, 111 S.Ct. at 2707 (emphasis added). "[I]ntra- 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 is 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 ----, 111 S.Ct. at 2709-19 (White, J., dissenting); id. at ----, 111 S.Ct. at 2719 (Marshall, J., dissenting); id. at ----, 111 S.Ct. at 2719-20 (Stevens, J., dissenting).

Applying the view of the Court is difficult when the Justices' opinions are so diverse and expressed in five separate opinions. We believe, however, that Solem survives Harmelin. While two Justices conclude that it was wrong, neither a majority nor a plurality was willing to overrule Solem. ¹ On the other hand, it seems reasonable to conclude that if Solem's proportionality analysis is to be applied at all, Justices Scalia and Rehnquist would probably prefer Justice Kennedy's approach over the dissenters' strict adherence to Solem's three-prong analysis. ² We therefore reexamine our opinion in Bartlett I under the standard articulated by Justice Kennedy. ³ C. Application of the Harmelin Standard

1. 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, ⁴ age fourteen and one-half. A few months later, Mary introduced Defendant to her friend Susan, of approximately the same age. Mary had 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 Defenda...