*1
27
injection
also affirm Defendant’s con-
d. Execution
lethal
is cruel
sentences. We
robbery
conspiracy
punishment. Rejected in
victions for armed
and unusual
robbery
602,
commit armed
and the sentences
Hinchey, 181 Ariz.
P.2d
v.
—
denied,
imposed.
—,
cert.
U.S.
S.Ct.
(1995);
by lethal (retired) Justice Robert J. CORCORAN discriminatorily decision; ap- e. Death sentence is participate pursuant did not this Const, Reject- plied against poor Caucasian males. Judge to Ariz. art. Chief Wil- West, ined 176 Ariz. at P.2d 192. Appeals, liam E. Drake of the Court of Divi- Two, designated sion to sit in his stead. Judge appropriate- f. failed to establish Rejected ness death sentence. Walton Arizona, 639, 651-52,
v.
U.S.
S.Ct.
(1990).
3056,
g. Judge precluded weighing from miti
gation evidence that does not meet the evi
dentiary
may
give
standard but
otherwise
h.
placed
Burden of
on the defen
Atwood,
Rejected
dant.
Walton,
651-52, 110
U.S.
S.Ct.
3056.
Sept.
1996.
j.
heinous, cruel,
depraved aggra
Certiorari Denied
1997.
Jan.
unconstitutionally vague. Rejected
vator is
See
CROSS appeal alleging
The state filed a cross judge refusing give
the trial erred in
jury flight instruction on Defendant’s or con-
cealment. Because we have affirmed Defen- sentences,
dant’s convictions and death we do
not reach the merits of this issue.
CONCLUSION
We have searched the record for funda-
mental error and have found none.8 Nor do
any appeal of the issues raised on warrant Accordingly,
reversal. we affirm Defen- felony
dant’s murder convictions and death Laws, capital ap- repeal 8. The convictions in this case were of A.R.S. 13-4035. See 1995 ch. 198, § pealed and briefed before the effective date of the *2 Woods, Attorney Grant General Paul J. McMurdie, Counsel, Appeals Chief Criminal MeClennen, Section and Crane Assistant At- General, Phoenix, torney of Ari- zona. Trebesch, Maricopa County
Dean W. Pub- Adams, lic Terry Deputy Defender J. Defender, Phoenix, Public and Brent E. Gra- ham, Defender, Deputy former Public Man- cos, CO, for Colette Renee DePiano. OPINION MARTONE, Justice. despondent
A attempt mother’s to commit suicide by asphyxiation and infanticide interrupted by neighbor. an alert All sur- and, fortunately, injured. vived no one was charged attempted She was not murder but, instead, with two counts of intentional or knowing child abuse under 3623(B)(1) which carries a much more severe conviction, Upon sentence. the court sen- year prison tenced her to two consecutive 17 require terms which her to serve the full 34 years before release. We are asked to de- cide whether this sentence is cruel and un- usual under the federal and state constitu- DePiano, However, tions. We conclude that it is not. conclude, granted review on whether (App.1995).
we also
the exercise of our statu-
tory authority, that the
was constitutional and ordered
sentence is excessive
light
particular
supplemental briefing
to consider whether
of the circumstances of this
crime and thus reduce it
minimum
should reduce DePiano’s sentence
to the
*3
13^t037(B),
§
the
statutory mitigated
years.
term 24
which authorizes
of
A.R.S.
that, although con-
court to reduce sentences
stitutional,
under the
are otherwise excessive
I. THE FACTS
given
facts of a
case.
been,
accounts,
DePiаno had
all
Colette
very good
a
mother. Her
deserted
husband
II. CRUEL AND UNUSUAL
shortly
her
after her second child
born.
was
PUNISHMENT
Despite
difficulty
boys
raising
of
two
years
of 34
is the re-
DePiano’s sentence
working
flight
while
as
attendant with
separate
of three
sen-
Airlines,
sult of the confluence
appeared
America West
DePiano
First,
tencing
although
enhancements.
most
manage.
years
A few
after her husband
year pre-
then carried a 7
her,
class
felonies
began dating
deserted
she
a co-worker
(1989),
term,
sumptive
§
A.R.S.
13-701
inten-
at America West. Six months later she was
knowing
pre-
tional or
child abuse carried a
hospitalized
post-abortion psychological
for
years.
§§
sumptive term of 17
A.R.S
13-
complications. About one month before the
13-3623(B)(1). Second,
604.01(B),
A.R.S.
attempt,
suicide-infanticide
up
she broke with
13-604.01(E) requires
persons
boyfriend.
convict-
her
She moved out of the house
they shared,
ed of
abuse must serve the entire term.
although
child
she had no income and
Third,
imposed
intentional
place
no
to live. She stole
from her ex-
$300
abuse,
boyfriend
child
where the victim is under 15
pay
bills. A friend
her
allowed
years
age,
consecutively.
of
must be served
Tempe
to live rent-free at her
house. She
13-604.01(J) (now
depressed,
A.R.S.
upset,
was
and disillusioned.
604.01(1)).
argues
DePiano
that her result-
On October
DePiano
went
straight years
sentence of 34
without the
dinner with some friends at America West
possibility
prohibition
of release violates the
a.m., neigh-
and came home late. At 2:00
against
cruel and unusual
con-
up
thought
bor woke
to the sound of what he
Eighth
tained
Amendment to the Unit-
washing
was a
machine. His bedroom was
2, §
ed
of
States Constitution and art.
right
garage.
next to DePiano’s
After check-
Arizona Constitution.
out,
ing things
neighbor
noticed that the
it is clear that a cruel and unusual
While
coming
garage.
noise was
from a
car
constitutions,
sentence violates both
what
garage
He knocked on the
door and the front
door,
cruel and unusual is not so clear. The Unit-
got
but
no answer. He called the
Supreme
ed States
Court addressed this is-
police.
Michigan,
sue in Harmelin v.
Tempe
out,
A
police officеr came
went into
S.Ct.
L.Ed.2d 836
garage
brought
the sealed
DePiano and
possessing
Harmelin had been convicted of
yard.
her two children out to the front
The
grams
of cocaine and was sentenced to
police
paramedics
took them to the hos-
imprisonment
possibility
pa-
life
without
pital
attending physician
where she told the
Although
majority opin-
there
no
role.
was
depressed
attempted
that she was
and had
ion,
judgment
it was the
of the Court that
suicide.
Eighth
the sentence did not violate the
trial,
At her child abuse
she denied she
Kennedy’s plurality
Amendment.
Justice
trying
to commit suicide and claimed opinion
thing
opinion
was the closest
to an
trying
that she was
to fix her car. After
view,
Eighth
the Court. Under his
closing arguments
jury
and before the
re-
Amendment “forbids
extreme sentences
guilty,
turned its verdicts of
left
she
town.
‘grossly disproportionate’
that are
to the
decision,
If
appeals
a 2-1
the court of
crime.” Id. at
We do not II imposed by legislature. believe is the sanction precedential supplemental briefing entitled to the sort of value one ordered on whether ordinarily opinion would associate with an of DePiano’s sentence should nevertheless be equally 13-4037(B), which, this court. The court was almost reduced under A.R.S. Amendment, meaning plurality opinion Eighth divided on the of a contrast to the allows Supreme particular of the United States Court. We the court to look at the circum are thus left with two levels of informed stances of the crime and the offender and speculation. plurali any The first is whether the reduce sentence that it finds to be exces sive, ty opinion in though Harmelin would command a even the sentence is constitu majority today. provides: The second is whether the tional. A.R.S. Upon apрeal judgment your your spouse an from the when leaves of house 18— ground from the pay sentence on the that it is + believes he doesn’t need to child excessive, the power court shall have the you— support up children look —Your to reduce the extent duration of the you what do have to offer— if, punishment imposed, opinion, its my Dear God—I’ve taken sons with me proper, conviction is but the hopes away that we’d be somewhere from imposed greater than under the circum- place are ... now ought stances of the case to be inflicted. my To Mom—You’ve instilled in me that case, supreme such a court shall raising nightmare children is a + all impose any sentence, legal not more severe grow up you do is to resent all the —That’s originally than imposed, its huh, appreciation get resentment— —a opinion proper. Such sentence shall be Boy—that really You don’t even call me! — ap- enforced the court from which the pisses me off— peal was taken. life, your your problеms Jeff1 —I lived engage appel This court cannot your you confusion—I loved —what sentencing. ordinarily late Nor can we sub waste— judgment stitute our for that of the trial you helping Jim2 —what a loser are for not judge. We cannot and would not microman boys me with the tried so hard to do it —I age the justice administration of criminal by myself so *5 tried hard! —You bas- —I Arizona. We have neither competence anyone tard —how can not want to see ability nor the to do so. We thus exercise boys They these two deserve power our succeed— only great this statute single more than what I can offer as a Patton, E.g., caution. 120 Ariz. family Why you income help couldn’t (1978); 586 P.2d — v. State Killi day expenses they’re us—Just with care an, 140, 142, 370 P.2d — your kids— (1962). only We will reduce a if sentence it clearly appears E.g., to be too severe. God much I know how believe Herrera, everyone life—but I look around me + see Patton, As we said in power of lying cheating stealing[.] any “[t]he no one has modify this Court to sentences should further morals— tempered by be the realization that a defen person I’m not a my 90s don’t want —I appears person dant judge, before the trial part spread sons to be a of the hate we all rendering instances, judge, in most more around— able than ourselves to evaluate the defendant They pure are beautiful and + no one will and his circumstances.” 120 Ariz. at away take that from us— P.2d at 637. We are descent + honest ... Indeed, Such cases will be rare. until Jordan —You’ve the best of friends— been today, years. we had not seen such a case in you my you I love with all heart —I love —I
Although her, her children were with you love been wonderful to us— —You’ve crime essentially here is a botched suicide. you people Jordan of all know how dis- note, uncorrected, Her part: suicide reads I heartened am with the hatefulness of people To all the my who made life some- people— bearable; what People you you they you look at tell love Although none of this makes much sense away— + walk you—to just note, put my know that I cannot sons This and all of the оther matters through goes incident, + leading up coldness hate that record to this sad illus- People talk above love—what does trate that DePiano’s suicide-infanticide at- on— your parents you your tempt evil, tell out despair, was motivated not the mean — boyfriend up 1. The from whom she broke 2. Her husband at the time of the incident. month half before her suicide-infanticide attempt.
wicked, depraved,
convictions,
authority
otherwise bad state of
ano’s
but under the
mind one
predators.
13-4037(B),
§
associates with child
year
A.R.S.
the 17
term of
depression
Neither
despair
nor her
ex-
imprisonment for each count
is reduced to
guilt,
cuse her
but we
mitigat-
believe it is so
years for each of the two counts. The sen-
ing here that it
apart
affirmed,
sets this case
from the
respects
tences
all other
are
norm.
including
provisions
§
the flat
of A.R.S.
604.01(E)
provisions
and the
consecutive
The trial court found her lack of a
13-604.01(J).
A.R.S.
prior criminal record and the absence of
injury
mitigating.
to the children to be
But
MOELLER, Justice, concurring
part
flight
he found hеr two month
after the
dissenting in part.
verdict
aggravating.
was announced to be
He believed these factors balanced out and
agree
analysis
with Justice Martone’s
sentenced her to
presumptive
term.
under Harmelin and Bartlett II and with his
case,
ordinary
presumptive
conclusion that DePiano’s sentence is not
could well be indicated. But the sentence
unconstitutionally cruel and unusual. We
here was driven more
the confluence of a
join
portion
opinion
therefore
in that
of his
nondiscretionary sentencing
series of
en
designated “Part II.
Pun-
Cruel and Unusual
judgment
hancements than individual
tai
disagree
ishment.” Because we
with the ma-
particular
lored to this
offense and offender.
jority’s
inject
decision to
We do not
judge.
criticize the trial
Given
into the case and to reduce DePiano’s sen-
enhancements,
range
these
available
tence,
portion
we dissent from that
narrowly
him
severe. But A.R.S.
13-
opinion designated
Statutory
III.
“Part
Re-
4037(B) gives
responsibility
this court the
duction.”
put the sentence in context. Had this bеen a
case,
typical child abuse
we would have left
Colette Renee DePiano
to kill her-
decided
this defendant where we found her. But it is
self and her two children on October
*6
not.
degree
Even most first
murderers are
time,
experienc-
1991. At the
DePiano was
eligible
parole
years.
for
after 25
A.R.S.
ing
problems
financial
breakup
and the
of a
§
year
13-703. We believe a 34
flat sentence
a.m.,
relationship. At approximately 2:00
is excessive for this case and therefore DePi
placed
along
DePiano
the
towels
base of the
ano is entitled to some relief under A.R.S. garage door at the house where she was
13-4037(B).
§
staying.
got
She
into her car with her chil-
three)
dren,
(age
(age
Dustin
and Dakota
authority
Our
to reduce an otherwise
four),
engine. Fortunately,
and started the
§by
constitutional sentence is limited
13-
shut,
because the windows of the car were
4037(B)
statutory range
to “one within the
the
level of carbon monoxide
the car’s
by
legislature.”
enacted
the
Bart
slowly.
interior rose
Before DePiano and
lett,
by
her
two children were overcome
the
(1990) (Bartlett I).
give
We therefore
her
fumes,
neighbor
a concerned
heard the car’s
only
give.
the relief we are authorized to
police. Responding
noise and alerted
offi-
(two
years
reduce her sentence to 24
consec
garage
cers entered the
and rescued DePi-
terms),
12-year
mitigated
utive
the minimum
ear,
ano and the two children.
Inside the
term to which she could have been sen
note,
police
quoted
majority
found a
the
clemency
tenced. Executive
is an avenue of
498).
(maj.
opinion
op. at
P.2d
potential further relief in the future. Com
DePiano claimed at trial that she had at-
5, §
pare art.
Const.
with A.R.S.
tempted neither suicide nor murder
was
but
13-604.01(E) (1989) (amended 1993).
merely repairing her car. She maintained
garage
had
the
she
closed
door so as
IV. DISPOSITION
neighbors
engine
disturb her
and the ear’s
part
opinion
running only
testing
We vacate that
of the was
because she was
appeals
repair
court of
that relates to the cruel and
her
claimed that the chil-
work. She
unusual
issue. We affirm DePi-
dren were
her because
had been
with
sleep
explained
majority’s
begins
error
unable to
the
She
498-499. The
with
house.
of
along
garage
that the towels
the
door were
characterization
the nature of the
its
limit the
majority opinion
there to
noise and because her
The
states: “Al-
crime.
playing
Quite
her,
had been
them.
though
children
with
her children
with
the crime
were
understandably,
jury rejected
Maj.
the
DePiano’s
essentially
suicide.”
here
a botched
explanations
absurd
her of
convicted
two
op. at
posed presumptive term: two consecutive majority legislative The also finds intent seventeen-year sentences. statutory we fail in the lan- to discern
The constitutional
whether
issue of
guage or otherwise. A.R.S.
only
sentence was cruel and
imposes
unusual was
penalties on
substantial
those who
by
petition
issue raised
in her
child,
DePiano
for
“having
custody”
the care or
of a
“in-
Thus, disposition
review.
issue would tentionally
place
“in
knowingly”
the child
ordinarily
disposed
have
of the case. How-
person
a situation where
or health is
its
ever,
majority
inject
new,
chose to
endangered.”
majority acknowledges
sponte
second issue into the
sua
case and
that DePiano violated the statute but asserts
parties
issue; namely,
asked the
to brief that
apply
statute was intended to
availability
of a sentence reductiоn under
which,
involving
predators,”
cases
“child
13-4037(B).
This new issue is the
majority opinion,
can
infer from the
vehicle
which the
now reduces
torture,
beating,
involve the
or moles-
would
disagree-
DePiano’s sentence.
addition
maj.
op.
tation
children.
See
inject
decision to
the new issue
limitation,”
“predator
498. A
appeal,
disagree
into
this
with the reduc-
appeal’s
statutory language,
nowhere in the
1)
tion of
two reasons:
grafted
should not be
onto the statute
this
majority finding of
is based on
excessiveness
punishes
court.
statute
caretakers who
*7
unjustified
an
construction
the child
abuse
intentionally
knowingly place
in
children
an improper
finding
statute and
appellate
danger,
exactly
and that is
what DePiano did.
depression;
that DePiano suffered from
and
majority
suggest
The
that
seems
sen-
2)
does
this case
not fall within the narrow
tencing
under
should be based
range
cases in
appellate
which Arizona
violence; if
sliding
person
on some
scale of
a
historically
courts have
their statuto-
invoked
danger
placеs a child in mortal
without vio-
ry authority
to reduce
lence,
she should
a lesser
receive
4037(B).
places
one
in
than
who otherwise
child
danger.
same mortal
We believe this
presumptive
imposed by
Is the
term
conclusion,
majority
in
unsupported
opin-
court
the trial
“excessive”?
by logic
A
precedent,
ion
is incorrect.
“Typical”
A.
Child Abuse
cold-heartedly
premed-
mother who
and with
part,
large
majority
attempts
by
bases its con-
to kill her children
itation
as-
phyxiation,
by suffocating
that DePiano’s sentence is excessive
whether
them
clusion
with
exhaust,
“typical”
by poisoning
not a
them
pillow,
on the notion
this case is
a
with car
by putting
bag
dumping
did not
a
case of child abuse because it
involve or
them in
wicked,
not,
evil,
depraved
public
receptacle,
“the
or otherwise bad
them a
under the
statute,
preda-
culpable
one
child
a
flies
state of mind
associates with
less
than mother who
maj.
31-32,
op.
rage
a
If
tors.”
P.2d at
into
and beats her children.
there
See
finding that DePi-
majority’s
agree with the
policy fаvoring one or the other
public
ais
made,
particularly when
depressed,
it
be ex-
sentencing purposes,
should
ano was
here,
appeal.
matter on
legislature.
as an initial
pressed by the
as it was
note, in
majority
suicide
uses DePiano’s
The
Depression
Despair
B. DePiano’s
a diatribe of blame
she directed
responsible
felt were
at those she
deciding
this is not a
bitterness
majority,
The
inci-
misery,
this “sad
abuse,
to show that
also concludes
for her
“typical” case of child
mo-
“typical”
“essentially a botched suicide”
apart from
was
that what sets this case
dent”
maj.
“depression
de-
by
[and]
extreme
state of mind. See
tivated
cases is DePiano’s
31-32,
Though
at 498.
maj. op. at
op.
spair.”
went out with her friends and
co-workers
findings,
in-
is this court warranted in
night
attempted
killings.
same
she
voking
statutory power
its
to reduce
There is no
weight
evidence in the record of
sentence
this case?
insomnia,
gain,
psychomotor
loss or
agitation,
fatigue, or
ability
diminished
think
disagree
It is evident that we
with the
might support
finding
depression.
of
Fi- majority’s conclusion that DePiano’s crime
nally,
very
DePiano’s note makes
clear that it
“typical”
envisaged by
was not of the
sort
was not she whom she considered worthless
4037(13)
majority’s
and with the
further
13—
else;
everyone
mother,
but
ex-boy-
her
her
presumptive
conclusion that her
friend,
ex-husband,
and “the coldness
inappropriate
allegedly
because she
act-
goes
and hate that
on.” DePiano’s absurd
depression
ed out of
despair.
Even if
only
defense
complete
underlines her
lack of
findings
majority
correctly
of the
were
understanding
remorse or
impact
of the
level,
appellate
made
pre-
at the
DePiano’s
her crime.
engage
This court should not
sumptive sentence should not be reduced un-
psychoanalytical guesswork
probe
13-4037(B).
§der
minds of those who commit criminal acts in
majority
concedes that we should use
adjust,
sponte,
order to
sua
the sentences of
power
our
to reduce a sentence under A.R.S.
someone whom this court now deems to show
13-4037(B) only
great
(Maj.
caution.
signs
“depression
despair.”
[and]
op. at
citing
926 P.2d at
Patton,
386, 388,
586 P.2d
harm,
Nor should we follow a “no
no foul”
(1978);
Killian,
140, 142,
State v.
approach to criminal law. Although the chil-
(1962)).
notes,
majority
dren
physical
suffered no immediate
harm in
only
“we
clearly
will
reduce a sentence if it
case, they
this
would have been dead had
appears
(Maj.
to be too
op.
severe.”
plan
DePiano’s
successfully.
been executed
Herrera,
citing
926 P.2d at
Criminal
many
statutes contain
examples of
(1978)).
588 P.2d
“The
designed
crimes
to deter
may
conduct which
power
modify
of this court
sentences
physical
which,
not result
injury
but
tempered
should
further be
the realiza
nature, expose
their
citizens to unwarranted
tion that a
appears
person
defendant
be
Aggravated
risk.
assault and armed rob-
judge,
fore the trial
rendering
judge,
bery, just
examples,
to name two
are crimes
instances,
most
more able than ourselves to
involving significant penalties
though
even
evaluate the defendant and his circumstances.”
person convicted of
might
those crimes
truth-
(S
maj.
op. at
926 P.2d at
ee
fully argue that
physical
no one suffered
Patton,
citing
120 Ariz. at
injury in the course of the offense. See
637).
§§
-1204, §
13-1203 to
13-1902. This
policy
court undercuts the
many
Having
criminal
scope
noted the limited
of the stat-
by implying
ute,
statutes
for
states: “Such
[war-
cases
crimes that
physi-
do not result in
ranting
Indeed,
immediate
will
reduction]
be rare.
until
cal
mitigated.
harm should be
an ap-
today,
Such
years.”
we had not seen such a
case
proach
overlooks
express
Maj.
op.
statu-
Perhaps
Arizona mandatory sentencing regime many sentencing into effect determinate went tive sentences, sentences, aggravated code, enhanced 1978 there have been with the sentences, sentences, flat-time and hard-time § sentencing under 13- reductions of three majority’s determination sentences. 4037(B). reduced because One sentence was statutorily presumptive sen- аuthorized statutorily punish- authorized it exceeded the crimes are tences are excessive because Kerr, 426, 435, ment, 690 142 Ariz. State v. “typical” or because were committed 145, (App.1984). set aside 154 One P.2d by depressed people offers no rational dis- $137,000 who imposed fine on a defendant many tinction this case and others. between convicted of a theft of under $500. had been Thus, may expect for sen- future claims 504, 500, Ariz. Marquez-Sosa, 161 State v. equally tence reductions to be based on nebu- The third such (App.1989). P.2d 819 779 grounds. lous contempt case rather than case was a present ease fit the narrow Nor does prosecution. Hamilton v. Munici- criminal in court has exer- band of cases which this Court, 374, 380, P.2d pal 163 Ariz. 788 statutory past cised its discretion cases, there (App.1990). contempt 13-4037(B). § reduce a sentence under sentencing, statutory guidelines for are no granting relief under facts of those eases appeals that 120 the court of concluded stand in marked con- lawyer failure of a hours of incarcerаtion for example, have trast to this one. For appearance was excessive to make a court excessive because it reduced a sentence as Id. under the facts. applicable statutory limits. exceeded the re- sentences have been Cases which 159, 160, Jennings, v. 104 Ariz. State extremely rare and have involved duced are have reduced sen- We defendants, juvenile youthful mistakes or omissions or tences cases which involved Telavera, level, relatively or non- youthful v. minor offenders. State at the trial 183, 186-87, offenses, 999-1000 beyond Ariz. 261 P.2d the statu- violent (1953) defendant); (seventeen-year-old extenuating tory range, other circum- Fierro, 118, 121, 416 P.2d an abuse of discretion stances which show defendant); (1966) (seventeen-year-old case, In this at the trial level. clear error Flores, 231, 232, Ariz. 495 P.2d State v. is, instead, a youthful, but defendant is not (1972) (eighteen-year-old'defendant); twenty-nine years mature adult. She was Seelen, 485 P.2d State v. the instant offense. old when she committed defendant). (1971) (nineteen-year-old very one which crime serious Her sentences as This court has also reduced the lives of two small threatened to end on the errors and omissions excessive based imposed The sentence was within children. Killian, sentencing court. State v. presump- range and was permissible (re- (1962) has legislature sentence which tive marijua- ducing possession a sentence of child abuse. appropriate for acts deemed largely the trial court had been na because has ever re- appellate court Arizona No guilty of that defendant was misled to believe under for child abuse duced a sentence Tuggle, 101 Ariz. rape); an unrelated 4037(B). would not do so now. (1966) (remanding 216, 219, 418 P.2d resentencing the sentenc- a case for because an has maintained today, this court Until mitigation de- not consider as court did high level of restraint appropriately (eigh- age of the crime fendant’s at the time 13-4037(B), very as demonstrated rehabilitation, teen), and his restitution his re- sentences have been cases in which few state). the victims and the both Today’s as а past. case stands duced anomaly line of deci- disturbing amid that sen- foregoing cases All of the ap- requests for and invites wholesale sions during the time arose tences were reduced statute, as- resentencing under the pellate sentencing had indeterminate when Arizona suming the statute survives. discre- judges almost unlimited and trial had
37
reasons,
us,
foregoing
respectfully
agreement
preceded
For the
with those who
with-
more,
majority opinion.
adequate
dissent from Part III of the
out
is not an
reason
over-
Wiley
v.
Industrial
precedent.”
rule
CORCORAN,
(Retired),
J.
ROBERT
J.
Arizona,
103,
94,
Comm’n of
174 Ariz.
concurs.
(1993).
595,
Nevertheless,
with re-
P.2d
markably
opinion boldly
support,
little
ZLAKET,
Justice, concurring
Vice Chief
proclaims:
part, dissenting
part.
do not believe that Bartlett
II is
I
application
concur
Justice Martone’s
of
precedential
entitled to the sort of
value
disagree
to this case but
ordinarily
one
associate with an
would
with his conclusion that DePiano’s sentence
opinion of
al-
this court. The court was
is not cruel and unusual.
I also find the
equally
mеaning
on the
of a
most
divided
speculation”
“informed
he
with which
ana-
plurality opinion of the United States Su-
lyzes
peculiar
high-
this issue to be most
preme Court. We are thus left with two
ly problematic.
majority
Whether a
of the
speculation.
levels of informed
The first is
present
Supreme
United States
Court would
Harmelin
plurality opinion in
whether the
in Harmelin
agree
plurality opinion
with the
majority today.
would command a
Michigan,
v.
2680,
501 U.S.
111 S.Ct.
majority
mi-
second is whether
or the
(1991),
Arizona. fact that it was not unanimous makes it no deserving “precedential
Only
years
less
value” than
ago, majority
four
of this
any other decision of this court.
Michigan
See White
Harmelin v.
court held that
re-
Bateman,
110, 114,
quires
an examination
Ariz.
358 P.2d
of the circumstances
(1961).
compelling
In the
of both the
absence
crime and the offender when
circumstances,
deciding
requires
stare decisis
constitutionality
sentence:
Wiley,
not overrule it.
question
“gross disproportion”
[T]he
P.2d at 604.
cannot be
considering
resolved without
all
aggravate
of the factors that
mitigate
jurisprudential policy
Sound
has caused us
ignore
the crime. To
facts
deter-
to abandon substantive
precedent only
when
mining whether a sentence is cruel and
the reasons for it have ceased to exist
itor
unusual would make the title of the statute
White,
appears
clearly
to be
erroneous.
constitutionality
... determine the
714;
see also State v.
Ariz. at
358 P.2d at
imposed.
Surely,
if this court
Salazar,
responsibility
has a
to review the constitu-
denied,
(1992),
cert.
509 U.S.
113 S.Ct.
tionality of
eighth
sentences under
label has attached dissenters, Signifi and two newer members. criminalizing statute. 3-2, cantly, again the outcome is “almost Bartlett, 302, 307-08, equally meaning on of [Harme divided denied, 823, 828-29, cert. lin Ante ].” P.2d at 497. Because (1992) (foot 511, 121 present past 113 S.Ct. L.Ed.2d 445 four members of this court (Bartlett II). II, omitted) note with Bartlett agree hardly The dissenters it can be said II argument clearly lost the exact that the decision is erroneous man today’s opinion Nothing changed ifestly wrong. makes. has The fact the United except composition Supreme since that decision of States Court denied certiorari adds It conclusion. See Ari- support this court. is settled that dis- further to this “[m]ere *11 38 ” Harmelin, Bartlett, possible extent.’ 113 the maximum
zona v.
506 U.S.
S.Ct.
(1992). Moreover,
quoting
111
at 2704
445
since one
501
S.Ct.
L.Ed.2d
U.S.
Estelle,
263, 274-75,
recently
today’s
has
re-
v.
445 U.S.
member of
Rummel
tired,
conceivably
witness an-
The children were not harmed because of her actions herself. It is any way by typical DePiano’s actions. It further where it an act abuse Williams, appears nothing against knew little or the child.” See State v. *12 (1993) going 98, 103, what was on around them and suffered 175 854 P.2d 136 significant no (holding apply emotional trauma at the time. 604.01 enhancements Obviously, they experienced person must have con- against when a child is the whom directed). siderable mental distress when were the crime is later taken from their mother and told what presented The state considerable evidence оccurred, had but such evidence does not extremely depressed that DePiano was and appear and, event, in any this record in despondent, previously someone who had present analysis. would not be relevant to the hospital been admitted to a mental left and
Although argue one could against that Harmelin medical “a advice. She was called similarly pos- involved a nonviolent person, person troubled a trou- troubled crime — Supreme session of cocaine—the emergency Court made bled mind.” The room doctor point citing a studies and statistics show- described her demeanor on date of this drugs, violence, a link flat, continuous, monotonous, between very and harm incident as society. The Court noted that the defen- and suffering consistent with that of someone dant in that possessed grams case depression. 672.5 extreme picture The entire is of cocaine, undiluted potentially yielding young be- a help, disturbed woman who needs 32,500 65,000 tween doses. years prison. Other evi- not 34 Her children have dence taken from Harmelin corroborated parental rights his been taken and her severed. heavy drug involvement trade: mari- poses There is no evidence that she a con- juana cigarettes, straws, four tinuing brass cocaine anyone threat to them or else. How spoon, tablets, cocaine 12 Percodan 25 punishment tablets then can it said that be fits Tartrate, of Phendimetrazine a Motorola the crime? beeper, plastic bags cocaine, containing suggest do not mean to that we can or book, $3,500 coded address in cash. The ignore legislature’s should choice of how Court found it undeniable that violent crime to treat prosecutor’s certain conduct or the use, is drug possession, linked to and distri- filing charges. discretion criminal It must Thus, bution. Harmelin’s crime was viewed remembered, however, be despite involving as one society violence to as a afforded, prosecutor latitude “[a] has the re-
whole. sponsibility justice of a minister of and not
When we look at the
simply
emt.,
realities of DePiano’s
that of an аdvocate.” ER 3.8
crime, however,
Conduct,
we see that
this
an
was
Arizona Rules of Professional
Rule
attempted
Furthermore,
suicide-infanticide.
suicide
Ariz.R.Sup.Ct.
although
“[A]
gesture
something
...
calling
help”
“acknowledge
for
is we
legislature’s pre-
must
prosecutor presented
how the
jury.
it
rogative
to the
to criminalize behavior and to
out,
points
As the state
ques
statute in
appropriate punishment,”
choose the
Bartlett
require
II,
tion did
specifi
this woman
tences stand contrast DePiano, act other states.” the same 92-1855. No. CA-CR 56, 926 187 Ariz. at P.2d at 523. only if hold a caretaker liable Ten states Arizona, Appeals Court of injury. physical or mental child suffers One, Department B. Division See, (Supp. 16-5-70 e.g., Ga.Code Ann. 1995) (cruel physical or excessive mental 1995. Jan. states, only “non-injury” five
injury). Of the June Review Granted year, require exceeding time one prison being years. See maximum (1975); § 26-15-3 Idaho Code Ala.Code 18-1501(1) (1987); Ky.Rev.Stat. Ann. *14 (Michie/Bobbs-Merrill 508.100(l)(b) 1990); (West 1995); §Ann.
N.J. 2G:24-4 N.M. Stat. 30-6-1(0 (Michie 1978). §Ann. Fur-
Stat.
thermore, jurisdic- in about one-third require injury, there is a 1-
tions that do two-thirds, sentence;
year maximum a 5- maximum;
year have maximum none years. Finally,
sentences over almost ev-
ery jurisdiction probation. other allows
Having performed constitutionally- claim, analysis of defendant’s
mandated “exceedingly
find this the rare” circumstance a sentence cruel and unusual Eighth
under the Amendment to the United 2, § art. 15 of the
States Constitution and II,
Arizona Constitution. See (recognizing
Ariz. at at 832
possibility cruel or that Arizona’s unusual
clause is broader than the federal constitu-
tion’s). prison 17-year
Defendant’s consecutive early possibility of release
terms without vacated, case remanded to
should be and the resentencing trial court (unenhanced sentencing
§§ and -702 13-701
guidelines parole, probation, concur- available), treating
rent sentences DePiano
as felon. a class or 3
FELDMAN, C.J., concurs.