State v. Berger

Citation212 Ariz. 473,134 P.3d 378
Decision Date10 May 2006
Docket NumberNo. CR-05-0101-PR.,CR-05-0101-PR.
PartiesSTATE of Arizona, Appellee, v. Morton Robert BERGER, Appellant.
CourtSupreme Court of Arizona

Terry Goddard, Arizona Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section, Robert A. Walsh, Assistant Attorney General, Phoenix, Attorneys for the State of Arizona.

Law Offices of Laurie A. Herman By Laurie A. Herman, Scottsdale, and Law Offices of Ballecer & Segal By Natalee Segal, Phoenix, Attorneys for Morton Robert Berger.

Miller, Lasota & Peters PLC By Donald M. Peters, Phoenix, Attorneys for Amicus Curiae American Civil Liberties Union of Arizona.


BALES, Justice.

¶ 1 Based on his possession of child pornography, Morton Robert Berger was convicted of twenty separate counts of sexual exploitation of a minor under the age of fifteen and sentenced to twenty consecutive ten-year prison terms. We hold that these sentences do not violate the Eighth Amendment's prohibition on cruel and unusual punishment.


¶ 2 Arizona severely punishes the distribution or possession of child pornography. Under Arizona law, a person commits sexual exploitation of a minor, a class two felony, by knowingly "[d]istributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct." Ariz.Rev.Stat. ("A.R.S.") § 13-3553(A)(2) (2002). A "visual depiction," for purposes of this statute, "includes each visual image that is contained in an undeveloped film, videotape or photograph or data stored in any form and that is capable of conversion into a visual image." A.R.S. § 13-3551(11). If a depiction involves a minor under the age of fifteen, the offense is characterized as a dangerous crime against children. A.R.S. § 13-3553(C).

¶ 3 Under this statutory scheme, the possession of each image of child pornography is a separate offense. A.R.S. §§ 13-3551(11), -3553(A)(2); see also State v. Taylor, 160 Ariz. 415, 420, 773 P.2d 974, 979 (1989) (affirming fifty consecutive sentences for possession of fifty contraband images obtained over time). Consecutive sentences must be imposed for each conviction involving children under fifteen, and each such sentence carries a minimum term of ten years, a presumptive term of seventeen years, and a maximum term of twenty-four years. A.R.S. § 13-604.01(D), (F), (G), (K). Such sentences must be served without the possibility of probation, early release, or pardon. A.R.S. § 13-3553(C) (prescribing sentencing under § 13-604.01).

¶ 4 A grand jury indicted Berger on thirty-five separate counts of sexual exploitation of a minor based on his possession of printed photographs, computer photo files, and computer video files depicting children in sexual acts. On the State's motion, the trial court dismissed fifteen counts, and trial proceeded on the twenty remaining counts.

¶ 5 The trial evidence established that Berger possessed numerous videos and photo images of children, some younger than ten years old, being subjected to sexual acts with adults and other children, including images of sexual intercourse and bestiality. The jury also heard testimony indicating that, from 1996 to 2002, Berger had downloaded computer files containing child pornography; he had identified several "favorite" websites with titles indicating they provided child pornography; he had recently viewed contraband material; and he had created both computer and hard copy filing systems to maintain his collection. The jury convicted Berger of twenty counts of sexual exploitation of a minor and found that each depiction involved a child under the age of fifteen.

¶ 6 The trial judge sentenced Berger to a ten-year sentence — the minimum mitigated sentence allowed — for each of his crimes and, as required by statute, ordered the sentences to be served consecutively. A.R.S. §§ 13-604.01, -3553(C). The court rejected Berger's argument that his sentences violated the Eighth Amendment's prohibition on cruel and unusual punishment. Berger appealed, and a divided panel of the court of appeals affirmed his convictions and sentences. State v. Berger, 209 Ariz. 386, 103 P.3d 298 (App.2004). He petitioned for review, arguing that the rulings below conflict with this court's opinion in State v. Davis, 206 Ariz. 377, 79 P.3d 64 (2003).

¶ 7 We granted Berger's petition to again consider the framework for reviewing Eighth Amendment challenges to lengthy prison sentences. We have jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution and A.R.S. section 12-120.24 (2003).


¶ 8 The Eighth Amendment to the United States Constitution bars the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. This provision "guarantees individuals the right not to be subjected to excessive sanctions." Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). "The right flows from the basic precept of justice that punishment for crime should be graduated and proportioned to the offense." Id. (internal quotation marks and citation omitted).

¶ 9 The Supreme Court has long recognized that the Eighth Amendment limits permissible sanctions in various contexts. For example, the Court has held that the death penalty cannot be imposed for the rape of an adult woman, on mentally retarded defendants, or on those who commit their crimes as juveniles. See id. at 568-69, 125 S.Ct. 1183 (collecting cases). Likewise, the Court has held that a sentence to "12 years jailed in irons at hard and painful labor for the crime of falsifying records was excessive." Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (citing Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910)). The Court has also observed that "[e]ven one day in prison would be a cruel and unusual punishment for the `crime' of having a common cold." Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

¶ 10 Although "the Eighth Amendment has been applied to lengthy sentences of incarceration," Davis, 206 Ariz. at 381, ¶ 13, 79 P.3d at 68 (citation omitted), courts are extremely circumspect in their Eighth Amendment review of prison terms. The Supreme Court has noted that noncapital sentences are subject only to a "narrow proportionality principle" that prohibits sentences that are "grossly disproportionate" to the crime. Ewing v. California, 538 U.S. 11, 20, 23, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (O'Connor, J., concurring in the judgment) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment)).

¶ 11 This court reviews Eighth Amendment challenges to the length of prison sentences under 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. Davis, 206 Ariz. at 383, ¶ 30, 79 P.3d at 70.1

¶ 12 Under this analysis, a court first determines if there is a threshold showing of gross disproportionality by comparing "the gravity of the offense [and] the harshness of the penalty." Ewing, 538 U.S. at 28, 123 S.Ct. 1179; accord Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in the judgment) (same). If this comparison leads to an inference of gross disproportionality, the court then tests that inference by considering the sentences the state imposes on other crimes and the sentences other states impose for the same crime. Ewing, 538 U.S. at 23-24, 123 S.Ct. 1179; Harmelin, 501 U.S. at 1004-05, 111 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in the judgment).

¶ 13 In comparing the gravity of the offense to the harshness of the penalty, courts must accord substantial deference to the legislature and its policy judgments as reflected in statutorily mandated sentences. The threshold inquiry is guided by several principles that include 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. Ewing, 538 U.S. at 23, 123 S.Ct. 1179 (citing Harmelin, 501 U.S. at 997, 111 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in the judgment)). These principles 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." Id. at 23, 123 S.Ct. 1179 (quoting Harmelin, 501 U.S. at 1001, 111 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in the judgment)) (internal quotation omitted).

¶ 14 In Ewing, the Court rejected an Eighth Amendment challenge to a prison term of twenty-five years to life under California's "three strikes law" for a recidivist offender convicted of stealing three golf clubs worth nearly $1200. Justice O'Connor's plurality opinion first considered the three strikes law in its general application. While recognizing that the law had been criticized for its lack of wisdom and lack of effectiveness, she noted that the State of California had a "reasonable basis" for believing the law would substantially advance the goals of incapacitating repeat offenders and deterring crime. Id. at 24-28, 123 S.Ct. 1179. Against this backdrop, Justice O'Connor considered and rejected Ewing's argument that his sentence was unconstitutionally disproportionate. Acknowledging that his sentence was long, she concluded that "it 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." Id. at 30, 123 S.Ct. 1179.

¶ 15 Similarly, in Harmelin, the Court rejected...

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