State v. Jonas
| Decision Date | 17 April 1990 |
| Docket Number | No. CR-89-0021-PR,CR-89-0021-PR |
| Citation | 164 Ariz. 242,792 P.2d 705 |
| Parties | STATE of Arizona, Appellee, v. Jay Martin JONAS, aka Jay Martin Mecklenburg, Appellant. |
| Court | Arizona Supreme Court |
Defendant Jay Martin Jonas (defendant) petitions for review of the court of appeals decision affirming his convictions for trafficking in stolen property and transferring marijuana to a minor under the age of 15 years, and his resulting consecutive sentences totalling 46 years. We granted review of the following question:
Under the facts of this case, does the 25-year sentence, imposed consecutively to the other sentence, violate the proscription against cruel and unusual punishment when imposed for the act of selling to a 14-year-old minor one marijuana cigarette for the price of $1.00?
We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24. For the reasons that follow, we conclude that defendant's sentence does not constitute cruel and unusual punishment under the facts of this case.
In late September 1987 the victim, a 14-year-old friend of defendant's younger brother, broke into a lawyer's office and stole, among other things, a Smith & Wesson .357 magnum pistol valued at $350.00. A few weeks later, the victim told defendant, who was then 21 years old, that he had a stolen gun he wanted defendant to sell for him. Defendant took the gun and promised to give the victim money or drugs for it, but told the victim the gun "was very hot and that he had to keep a low profile on it."
During the time period before and after the burglary, the victim twice obtained marijuana from defendant, purchasing one marijuana cigarette for $1.00 each time. Once defendant actually handed the marijuana to the victim in exchange for money; the other time, the victim purchased the drug through defendant's younger brother, who had obtained it from defendant. After the sale that involved defendant personally, defendant smoked the marijuana with his brother and the victim in defendant's yard. The victim had never smoked marijuana in the past, and the experience made him feel dizzy.
In early October the victim spoke to investigating police officers and admitted to the law office burglary, that he had taken the gun from that office, and that he had committed 3 other burglaries. He also told the police he had given the gun to defendant to sell for him, and that defendant had sold him marijuana. As a result of that investigation, defendant was indicted on 7 counts, including 4 counts of burglary and one count of conspiracy to commit burglary that were later dismissed, as well as the present counts of trafficking in stolen property and sale of marijuana to a minor under 15. The state filed an allegation that defendant had one prior felony conviction for theft.
At trial, the victim testified that defendant had offered to sell the stolen gun and had twice sold him marijuana. Defendant denied that these incidents had ever occurred, but admitted his prior felony conviction for theft. Defendant's younger brother, who was 15 at the time of these incidents, testified that the victim had told him about stealing the gun from a law office, but that he was not present when the victim asked defendant to sell the pistol. Defendant's brother also denied that the incidents involving the marijuana had occurred, although he admitted on cross-examination that he once smoked marijuana with the victim in defendant's yard and that defendant was present and saw them. He also testified that his brother had supplied him with marijuana in the past but had not done so since the burglary.
The investigating officer testified that the victim had cooperated with police throughout the investigation of these incidents, had received no promises in return for the information he gave them about defendant, and had been charged with and pleaded guilty in juvenile court to several counts involving 6 burglaries, as a result of the information he provided.
The jury found defendant guilty of trafficking in stolen property and sale of marijuana to a minor under 15 years old, both class 2 felonies. After the verdict, defendant admitted to his prior conviction after the trial court advised him of the rights he was waiving and the consequences of his admission. The court continued the sentencing hearing to allow time for preparation of a presentence report. Defendant did not request a mitigation hearing. At sentencing, the court imposed consecutive aggravated maximum terms of 21 years for trafficking in stolen property and 25 years for transferring marijuana to a minor, and ordered defendant to pay $350.00 in restitution to the owner of the gun. Defendant timely appealed, arguing, among other things, that the 25-year sentence imposed on him for selling marijuana to a minor constituted cruel and unusual punishment proscribed by the eighth and fourteenth amendments to the United States Constitution. The court of appeals affirmed defendant's convictions and sentences. State v. Jonas, 162 Ariz. 32, 780 P.2d 1080 (App.1989). Defendant then sought review in this court.
Defendant challenges the 25-year maximum sentence he received for his conviction of transfer of marijuana to a minor under the age of 15, in violation of A.R.S. § 13-3409. That statute provides, in relevant part:
A. A person shall not knowingly:
....
B. A person who violates a provision of this section is guilty of a class 2 felony and is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis until the sentence imposed by the court has been served, and if the minor is under fifteen years of age it is punishable pursuant to § 13-604.01, subsection A.
A.R.S. § 13-3409. Because the jury found that the minor was under the age of 15 years, the sentencing provisions of A.R.S. § 13-604.01 applied:
A. Except as otherwise provided in this section, a person who is at least eighteen years of age ... and who stands convicted of a dangerous crime against children in the first degree involving ... using minors in drug offenses shall be sentenced to a presumptive term of imprisonment for twenty years....
....
D. The presumptive sentences prescribed in subsections A, B, and C of this section may be increased or decreased by up to five years pursuant to the provisions of § 13-702, subsections C, D and E.
The sentencing provisions of A.R.S. § 13-702 detail the factors the court shall consider in determining whether the sentence imposed shall be aggravated or mitigated. Thus, under these provisions, defendant faced a mandatory minimum sentence of 15 years, a presumptive term of 20 years, and a maximum sentence of 25 years, to be served without possibility of early release. Additionally, any sentence imposed had to be served consecutively to any other sentence imposed on the other count of trafficking in stolen property. See A.R.S. § 13-604.01(J).
The court considered the presentence report before imposing sentence. That report indicated that defendant denied committing any crime, and had told the probation officer who prepared the report, "I hope no one that got me in here is around when I get out.... they better not be around." Defendant's adult criminal record included 4 prior felonies in New York and Arizona, including convictions of violent felonies for attempted robbery and assault. Additionally, defendant had numerous misdemeanor convictions in Arizona, including several instances of furnishing alcohol to a minor, disorderly conduct, assault, DUI, and reckless driving. The presentence report evaluation concluded:
Although only twenty-one, the defendant has accumulated a total of six felony convictions since the age of seventeen. He has exhibited a continued pattern of illegal activity and the safety of the public appears at risk when the defendant is at liberty. Attempts to change his behavior through probation (both juvenile and adult), counseling and incarceration have proven useless as the defendant appears unwilling to conform to the rules of society.
Although no violence was involved in the instant offense, his record shows various violent offenses in the past.... His somewhat threatening comments at the time of the presentence investigation, coupled with his past behaviors, may require some consideration in assessing his potential for involvement in further crime. A lengthy incarceration in the Department of Corrections should help insure the safety of the community.
At sentencing, the trial judge noted that his original inclination was to seek reasons to be lenient with defendant so that he could impose a mitigated sentence, but that the presentence report had convinced him to impose the maximum sentence. As aggravating factors, the judge mentioned defendant's extensive prior criminal record "that is rare to find in somebody 21 years of age," involving both violent felonies and a history of crimes involving children. The court also pointed out that both of the crimes for which defendant was being sentenced involved assisting juveniles in criminal acts, and that defendant's record "in and of itself shows shockingly aggravating...
To continue reading
Request your trial
-
State v. Bartlett
...on defendants who commit crimes more serious than this defendant's. Solem, 463 U.S. at 292, 103 S.Ct. at 3010; State v. Jonas, 164 Ariz. 242, 249, 792 P.2d 705, 712 (1990). We have previously disapproved the practice of comparing only those crimes encompassed within the challenged sentencin......
-
State v. Berger
...per se, particularly when the trial court has discretion to impose the mitigated end of a scale, see State v. Jonas, 164 Ariz. 242, 249, 792 P.2d 705, 712 (1990),12 and the Supreme Court has "never invalidated a penalty mandated by a legislature based only on the length of sentence[.]" Harm......
-
State v. White
...written by Justice Corcoran involving non-capital offenses. See State v. Bartlett, 164 Ariz. 229, 792 P.2d 692 (1990); State v. Jonas, 164 Ariz. 242, 792 P.2d 705 (1990). Surely, if we are to perform a comparative proportionality analysis in non-capital cases, we should continue to undertak......
-
State v. Berger
..."A defendant has no constitutional right to concurrent sentences for two separate crimes involving separate acts." State v. Jonas, 164 Ariz. 242, 249, 792 P.2d 705, 712 (1990). Accordingly, as a general rule, this court "will not consider the imposition of consecutive sentences in a proport......