State v. Jonas

FELDMAN, Vice Chief Justice,

dissenting.

I must dissent because I believe the sentence imposed is so disproportionate to the facts that it violates the eighth amendment. In finding the sentence proportionate, the majority misapprehends Solemn’s analytical framework.

A. The Gravity of the Offense vs. the Harshness of the Penalty

Just today this court recognizes that we must measure the gravity of the offense by the actual facts of the case. See State v. Bartlett, 164 Ariz. 229, 234, 792 P.2d 692, 697 (1990). The court states that “we must examine the type of harm threatened or inflicted and the level of defendant’s culpability, measured by the seriousness of the crime, against whom it was committed, and its level of violence.” Id. The majority opinion in this case fails to meet these criteria.

1. Seriousness of the Offense

All but two of the cases the majority cites to prove this crime is serious involved the use of a minor in drug trafficking or the sale or use of heroin, not marijuana.7 How can the court evaluate the specific facts of this ease when it uses authority that deals with offenses that are factually different and more grave?

The majority discusses two cases, Pick-ard v. State, 94 Nev. 681, 585 P.2d 1342 (1978), and Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982), that do involve marijuana use. Both were decided before Solemn and both are readily distinguishable. Pickard dealt with a statute that mandated life • imprisonment but allowed parole after seven years. Nonetheless, the court stated:

Although it is distinctly arguable that appellant’s sentence in this case is “grossly out of proportion to the severity of the crime,” this court would feel unjustified in so concluding, upon the record before us.
Accordingly, although we affirm appellant’s conviction, we have ordered appel*253lant’s case placed on the agenda for consideration of the Nevada Board of Pardons.

585 P.2d at 1344. Pickard thus provides no support for the court’s holding that the eighth amendment permits a defendant who sold one marijuana cigarette to be imprisoned for twenty-five years, to be served day-by-day consecutive to any other sentence imposed.

Hutto dealt with a dealer, a defendant who had possession of nine ounces of marijuana with intent to distribute. Furthermore, Solem. rejected Hutto’s basic premise that the eighth amendment does not apply to prison terms. See 463 U.S. at 288, 103 S.Ct. at 3009. Hutto provides no authority for finding the sentence in this case proportionate.

2. Harm to the Victim

While sale of marijuana to a minor is a serious offense, the young “victim” in this case was not an innocent corrupted by defendant. As in Bartlett, the victim was close to the maturity line the legislature has drawn for imposing less severe sen-fences. He was not only a willing participant, but admitted that he requested the marijuana.9 Moreover, he was an accomplished thief who admitted to twenty-one counts of crime involving six burglaries, including the theft of the gun he asked defendant to “fence” for him.

The record does not even hint that defendant involved the minor in “drug traffic,” at 247, 792 P.2d at 710 (citing People v. Carbonie, 48 Cal.App.3d 679, 121 Cal.Rptr. 831, 834-835 (1975)), or in “heroin dealing,” at 248, 792 P.2d at 711 (citing United States v. Ortiz, 742 F.2d 712 (2d Cir.1984)). The record does not indicate that defendant in any way encouraged the juvenile in drug use or burglary. A realistic view of harm to the victim does not add to defendant’s culpability in this case. See Bartlett, 164 Ariz. at 235, 792 P.2d at 698.

The majority also incorrectly includes defendant’s previous record when analyzing the gravity of the offense. The focus should be “on the principal felony — the felony that triggers the [sentence] — since [defendant] already has paid the penalty for each of his prior offenses.” Solem, 463 U.S. at 296 n. 21, 103 S.Ct. at 3013 n. 21. Defendant paid his penalty for being a repetitive offender on the “fencing” charge. He does not meet the statutory definition of a repetitive offender (A.R.S. § 13-604) on the marijuana charge, and his record should not be used to determine the seriousness of the offense.8

3. Violent Nature of Offense

The majority attempts to shoehorn the facts of this case into its view of the gravity of the offense by comparing the sale of one marijuana cigarette to a violent crime. The majority states that “we will not ignore the potential connection between drug use and violence by classifying this a ‘nonviolent’ crime to lessen its gravity within the context of the Solem analysis.” At 248, 792 P.2d at 711. Presumably, somehow, the crime is thus to be classified as “violent.” The majority does not explain how.

B. Sentences Imposed for Other Crimes in Arizona

The unconstitutionality of this sentence is apparent when we look at other sentences required by Arizona criminal law. *254Defendant could be sentenced to the same maximum twenty-five year term if he had been convicted of committing the most reprehensible sexual crimes with children, such as sexually assaulting a child or using the child as a prostitute. See A.R.S. § 13-604.01(A); see also State v. Bene-field, No. 2-CA-CR-89-0259 (Ariz.Ct.App. 1989) (rev. denied, Mar. 6,1990) (twenty-year sentences affirmed for acts of anal and vaginal rape of three-year-old girl). As the court stated in Bartlett, more serious crimes than this, “such as aggravated assault, child molestation, child abuse or kidnapping, are subject to a lesser minimum sentence----” 164 Ariz. at 236, 792 P.2d at 699.

If defendant had been convicted of second degree murder of this child “victim,” the maximum sentence he could receive would be twenty-five years. Absent aggravating circumstances, even if defendant had killed an adult in a premeditated, first degree murder, he would have been eligible for parole in twenty-five years. A.R.S. § 13-703(A); see also Bartlett, 164 Ariz. at 236-237, 792 P.2d at 699-700 (discussing incongruity of sentencing for potentially more serious crimes). If he had been a killer convicted of second degree murder of an adult, he would receive at most an aggravated sentence of twenty years. A.R.S. § 13-710. Only upon his commission of another second degree murder would defendant be subject to the same sentencing range (fifteen to twenty-five years) as he is today for the sale of one marijuana cigarette. Id. If he committed a third, second degree murder, he would receive life, but still would be eligible for parole in twenty-five years. A.R.S. § 13-604(N).

The same disproportionality is apparent when we examine sentences for drug offenses. Even the most serious drug offenders are treated no more harshly than this defendant. For instance, life imprisonment was imposed on a cocaine dealer arrested while on probation for a prior drug offense. See State v. Waits, 163 Ariz. 216, 786 P.2d 1067 (Ct.App.1989) (rev. denied, Mar. 6, 1990). The court of appeals, in affirming the sentence, was careful to point out that defendant was not merely convicted of the sale of a narcotic drug, but that the state had alleged and proved defendant had two prior felonies and that he was convicted pursuant to A.R.S. § 13-604.02(A) as a defendant who had committed a class 2 felony while on probation. Id. The cocaine dealer will be eligible for parole in twenty-five years.

Thus, even a cursory glance at Arizona law makes it apparent that defendant’s punishment is grossly disproportionate when compared to punishment for other, much more serious crimes in this jurisdiction.

C. Sentences in Other Jurisdictions

In its analysis of Solem’s third prong, the majority concedes that a twenty-five year consecutive sentence without possibility of parole is disproportionate when compared to that which could have been imposed in any other jurisdiction. It even acknowledges that the sentence is “among the harshest in the nation.” At 251, 792 P.2d at 714. Actually, it is the harshest. Arizona is the only state that would or could incarcerate a first-time seller of one marijuana cigarette to twenty-five years in prison without parole to be served consecutively to any other sentence imposed. The majority consoles itself by reflecting that some state must have the distinction of being the most severe. At 251, 792 P.2d at 714; cf. Bartlett, 164 Ariz. at 240, 792 P.2d at 703. The truth is that compared to other states, this sentence is constitutionally disproportionate.

The sentence for the marijuana offense is made even more disproportionate because it is imposed consecutively. The majority claims we are not to “consider the fact that defendant must serve one sentence for a separate crime before beginning the other as a factor that disproportionately lengthens the second sentence.” At 249, 792 P.2d at 712. We should not ignore the consecutive nature of the sentence because it is the sentencing statute itself that mandates that “[t]he sentence imposed ... shall be consecutive to any other sentence imposed on the person at' *255any time.” See A.R.S. § 13-604.01(J). Surely when a sentence must be served without parole and consecutively to any other, we must consider that factor on the question of severity.

CONCLUSION

I do not underestimate the problems drug use creates in this state. In enacting A.R.S. § 13-604.01(K)(l)(m), the legislature has attempted to protect our children from the malevolent influence of those who would involve them in drug trafficking or use. There are undoubtedly many cases in which the aggravated penalty the legislature has prescribed will be properly imposed. This is not one of them.

The bottom line is simply this: for selling one marijuana cigarette for one dollar to a young but experienced burglar seeking to sell a stolen gun, this defendant must serve twenty-five years in state prison without possibility of parole, consecutive to the sentence for attempted sale of the gun stolen by the burglar, for a total of forty-six years. Defendant is treated more severely than the law would treat a killer, a kidnapper, a sexual abuser, or an anal rapist.

The majority spends many pages attempting to rationalize this result and somehow concludes that it is constitutionally proportionate, even though it could not happen in any other state in the union. This court has turned Arizona into a minority of one.

As far as defendant is concerned, the sentence is so harsh that it is manifestly unjust. Our pity, however, must be reserved for the taxpayers of this state. The court has sentenced them to pay over $1.5 million10 to imprison this defendant for forty-six years.11

The punishment imposed on defendant was the maximum possible under the statute. Given its duration, the lack of parole possibility, and consecutive imposition of the twenty-five year sentencing, bringing the total to forty-six years, this sentence is disproportionate and so severe that it shocks the conscience. This court should therefore reduce the punishment under A.R.S. § 13-4037(B) to one that is not unconstitutionally severe. See, e.g., Hamilton v. Municipal Court, 163 Ariz. 374, 788 P.2d 107 (Ct.App.1989) (rev. denied, Mar. 27, 1990) (reducing a sentence by vacating the five-day jail term imposed on lawyer).

If this court cannot or does not use the power the legislature has given it under A.R.S. § 13-4037(B), then it must find this disproportionately excessive sentence cruel and unusual under the eighth amendment. Excessive sentences such as the one imposed in this case do not lead to observance of the law. Instead, they make a mockery of the law and create an aura of disrespect.

The majority suggests that the problem is one the legislature should correct. At 248, 792 P.2d at 711. It is wrong. By enacting A.R.S. § 13-4037(B), the legislature of this state gave this court the power and responsibility to correct unjust sentences. The court should exercise that responsibility. By enacting the eighth amendment, the founders of this country created restrictions on legislative action. If courts do not enforce those restrictions, they are meaningless.

Appendix A

Transcript of Sentencing Hearing, Mari-copa County Superior Court, March 7, 1988

THE COURT: I was concerned about the fact that the gun that was the subject of the trafficking in stolen property was not one you stole but one somebody else stole, and it was the witness against you at the trial who was, in fact, responsible for the theft and burglary of that gun. I was also mindful of the fact that *256the sale of marijuana in this case was one, perhaps two joints; that it is not a tremendous amount of marijuana involved. So it was with some predisposition toward lenience that I picked this report up and began reading. And I don’t think that there is a page in this report, Mr. Jonas, that doesn’t tell me that that thinking is just dead wrong.

The record section of this report ... the recitation of criminal offenses ... is rare to find in somebody 21 years of age. It is more often the case that I see people 40 or 50 years old before me that sometimes demonstrate the kind of criminal involvement that you have. And the list, ironically, begins in another state in 1983 and reflects robbery, a violent felony after a violent felony burglary, so the very first offense listed in this report as a youthful offender was propensity for violence and a propensity for disregarding the property rights and safety of other human beings.

The list goes on to show that on more than one occasion, a number of occasions, the criminal offenses that you have been involved in have also involved juveniles. There is minor consumption of alcohol. There is furnishing alcohol to a minor. And in this case itself, the record shows that the weapon that you stole involved minors and that the drug substance that was transferred involved minors, your brother and another. The criminal record also shows that you didn’t have a lot of respect for the system, failing to appear in court when you are ordered to do so. Contempt of court for failure to pay fines, revocation of probation for a felony for which you were originally granted- probation, threatening and intimidating other people, under-age consumption, and a DUI. The record in and of itself shows shockingly aggravating circumstances.

The circumstances of this offense, just in that they involve juveniles and were separate and distinct from each other, is a sufficient aggravating circumstance and I suppose more than any other shocking aggravating circumstance reflected by this presentence report is ... where I read that during the presentence interview, and I am quoting: He indicated that upon his release he would like to go to Russia as he was not happy with conviction on the instant offense. He also warned, “I hope no one that got me in here is around when I get out. They had better not be around.”

That tells me that the people responsible for your being before the court for sentencing today, including perhaps the witness who testified against you, the prosecutor who was responsible for the conviction in this case, perhaps the court itself, may be in actual physical danger when and if you get out of prison. That to me is the most shockingly and seriously important reason for putting you behind bars for as long as the law will permit me to do it.

. See, e.g., State v. Valenzuela, 101 Ariz. 230, 418 P.2d 386 (1966) (heroin); In re Flores, 58 Cal. App.3d 222, 128 Cal.Rptr. 847 (1976) (sale of heroin to a minor with intent to cause addiction, with one prior felony conviction alleged); People v. Carbonie, 48 Cal.App.3d 679, 121 Cal. Rptr. 831 (1975) (apprenticing minor in drug trade).

. The trial judge was obviously confused as to the effect of defendant's priors as he erroneously classified the marijuana offense as repetitive when he imposed the twenty-five year sentence. See at 245-246 n. 1, 792 P.2d at 708-709 n. 1. Furthermore, the state may have been unable to allege defendant's "4 prior adult felony convictions" (at 250, 792 P.2d at 713) under a different statute because defendant was sentenced for three of them in New York as a "youthful offender” and the record is not clear as to whether these offenses have been expunged.

. The victim testified as follows:

Q. As to these purchases of cigarettes, who suggested you buy the cigarettes?
A. I did.
Q. You actually asked to buy them?
A. Yes, I did.
Q. What was done with the cigarettes?
A. We smoked them.

Reporter’s Transcript, Feb. 10, 1988, at 86.

. Calculation based on actual figures from Department of Corrections Annual Report for Fiscal Years 1984-1989. Projected costs calculated using a linear forecast methodology by the Research Department of the Administrative Office of the Courts, February, 1990.

. The majority accuses me of arguing that the cost of incarceration is somehow relevant to an analysis under Solem v. Helm. Of course, I do not. I consider it relevant only to the use of common sense.