State v. DePiano
| Decision Date | 05 September 1996 |
| Docket Number | No. CR-95-0099-PR,CR-95-0099-PR |
| Citation | 926 P.2d 494,187 Ariz. 27 |
| Parties | STATE of Arizona, Appellee, v. Colette Renee DePIANO, Appellant. |
| Court | Arizona Supreme Court |
A despondent mother's attempt to commit suicide and infanticide by asphyxiation was interrupted by an alert neighbor. All survived and, fortunately, no one was injured. She was not charged with attempted murder but, instead, with two counts of intentional or knowing child abuse under A.R.S. § 13-3623(B)(1) which carries a much more severe sentence. Upon conviction, the court sentenced her to two consecutive 17 year prison terms which require her to serve the full 34 years before release. We are asked to decide whether this sentence is cruel and unusual under the federal and state constitutions. We conclude that it is not. However, we also conclude, in the exercise of our statutory authority, that the sentence is excessive in light of the circumstances of this particular crime and thus reduce it to the minimum statutory mitigated term of 24 years.
Colette DePiano had been, by all accounts, a very good mother. Her husband deserted her shortly after her second child was born. Despite the difficulty of raising two boys while working as a flight attendant with America West Airlines, DePiano appeared to manage. A few years after her husband deserted her, she began dating a co-worker at America West. Six months later she was hospitalized for post-abortion psychological complications. About one month before the suicide-infanticide attempt, she broke up with her boyfriend. She moved out of the house they shared, although she had no income and no place to live. She stole $300 from her ex-boyfriend to pay bills. A friend allowed her to live rent-free at her Tempe house. She was depressed, upset, and disillusioned.
On October 16, 1991, DePiano went to dinner with some friends at America West and came home late. At 2:00 a.m., a neighbor woke up to the sound of what he thought was a washing machine. His bedroom was right next to DePiano's garage. After checking things out, the neighbor noticed that the noise was coming from a car in the garage. He knocked on the garage door and the front door, but got no answer. He called the police.
A Tempe police officer came out, went into the sealed garage and brought DePiano and her two children out to the front yard. The police and paramedics took them to the hospital where she told the attending physician that she was depressed and had attempted suicide.
At her child abuse trial, she denied she was trying to commit suicide and claimed that she was trying to fix her car. After closing arguments and before the jury returned its verdicts of guilty, she left town.
In a 2-1 decision, the court of appeals affirmed her convictions and sentence. State v. DePiano, 187 Ariz. 41, 926 P.2d 508 (App.1995). We granted review on whether the sentence was constitutional and ordered supplemental briefing to consider whether we should reduce DePiano's sentence under A.R.S. § 13-4037(B), which authorizes the court to reduce sentences that, although constitutional, are otherwise excessive under the facts of a given case.
DePiano's sentence of 34 years is the result of the confluence of three separate sentencing enhancements. First, although most class 2 felonies then carried a 7 year presumptive term, A.R.S. § 13-701 (1989), intentional or knowing child abuse carried a presumptive term of 17 years. A.R.S §§ 13-604.01(B), 13-3623(B)(1). Second, A.R.S. § 13-604.01(E) requires that persons convicted of child abuse must serve the entire term. Third, sentences imposed for intentional child abuse, where the victim is under 15 years of age, must be served consecutively. A.R.S. § 13-604.01(J) (now A.R.S. § 13-604.01(I)). DePiano argues that her resulting sentence of 34 straight years without the possibility of release violates the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and art. 2, § 15 of the Arizona Constitution.
While it is clear that a cruel and unusual sentence violates both constitutions, what is cruel and unusual is not so clear. The United States Supreme Court addressed this issue in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Harmelin had been convicted of possessing 672 grams of cocaine and was sentenced to life imprisonment without possibility of parole. Although there was no majority opinion, it was the judgment of the Court that the sentence did not violate the Eighth Amendment. Justice Kennedy's plurality opinion was the closest thing to an opinion of the Court. Under his view, the Eighth Amendment "forbids only extreme sentences that are 'grossly disproportionate' to the crime." Id. at 1001, 111 S.Ct. at 2705. If a sentence raises an inference of gross disproportionality an intra-jurisdictional and inter-jurisdictional analysis of similar crimes is appropriate to validate the inference. Id. at 1005, 111 S.Ct. at 2707. If no such inference of gross disproportionality arises, no intra- or inter-jurisdictional analysis is required. The plurality concluded that a life sentence without parole for the possession of 672 grams of cocaine was constitutional. The plurality focused on the offense generally, without analyzing the particular circumstances of the crime or the offender. Because of the gravity of the offense, and the correlation between drugs and crime, particularly violent crime, "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--is momentous enough to warrant the deterrence and retribution of a life sentence without parole." Id. at 1002-05, 111 S.Ct. at 2706-07. Having found that the sentence was not grossly disproportional, no inter- or intra-jurisdictional analysis was required. Id. at 1005, 111 S.Ct. at 2707.
In State v. Bartlett, 171 Ariz. 302, 830 P.2d 823 (1992) (Bartlett II ), this court agreed that, at least until the Supreme Court of the United States reached a majority on the issue, it would use the standard articulated by Justice Kennedy to resolve such questions under the Eighth Amendment. But three members of this court looked to the particular facts and circumstances of the crime and the offender in analyzing the threshold question of gross disproportionality. Two members of this court would have done what Justice Kennedy did, not look at the particular crime or the particular offender, but whether the offense generally poses a sufficient threat to warrant the sentence imposed.
We do not believe that Bartlett II is entitled to the sort of precedential value one ordinarily would associate with an opinion of this court. The court was almost equally divided on the meaning of a plurality opinion of the United States Supreme Court. We are thus left with two levels of informed speculation. The first is whether the plurality opinion in Harmelin would command a majority today. The second is whether the majority or the minority read Harmelin correctly in Bartlett II. We agree with Bartlett II that until the Supreme Court of the United States holds otherwise, we shall follow Justice Kennedy's plurality opinion. But we disapprove of that part of Bartlett II that concludes that Justice Kennedy's analysis would require an examination of the facts and circumstances of the particular crime and the particular offender. We agree with the minority in Bartlett II that the initial threshold disproportionality analysis is to be measured by the nature of the offense generally and not specifically. We think this is particularly true for serious violent offenses.
Under this framework of analysis, and turning to this case, child abuse is a serious violent crime. The abuse must occur under "[c]ircumstances likely to produce death or serious physical injury." A.R.S. § 13-3623(B)(1). Child abuse is a violent crime and probably a more severe offense than the possession of 672 grams of cocaine. If, under Harmelin, a life sentence without the possibility of parole is not grossly disproportional to the offense of possession of cocaine, a fortiori, a shorter sentence for a more severe offense is not grossly disproportional. Therefore, without looking at the particular circumstances surrounding her offense, we reject DePiano's claim that her sentence violates the Eighth Amendment to the United States Constitution and art. 2, § 15 of the Arizona Constitution.
DePiano's sentence is constitutional because the prohibition against cruel and unusual punishment embodies a very narrow proportionality principle. A sentence is cruel and unusual only where there is gross disproportionality between the crime generally and the sanction imposed by the legislature. We ordered supplemental briefing on whether DePiano's sentence should nevertheless be reduced under A.R.S. § 13-4037(B), which, in contrast to the Eighth Amendment, allows the court to look at the particular circumstances of the crime and the offender and reduce any sentence that it finds to be excessive, even though the sentence is constitutional. A.R.S. § 13-4037(B) provides Upon an appeal from the judgment or from the sentence on the ground that it is excessive, the court shall have the power to reduce the extent or duration of the punishment imposed, if, in its opinion, the conviction is...
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...if the court's approach were plainly superior to that of Wussler, I would not hesitate to get on board. See, e.g., State v. DePiano, 187 Ariz. 27, 926 P.2d 494 (1996). But neither approach is plainly superior to the other. Under these circumstances, certainty and stability in the law tip th......
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