State v. AragonState v. Aragon
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- Before:
- Grant
OPINION
GRANT, Judge.Jаvier Diaz Aragon (“Defendant”) was convicted of possession for sale of one pound or more of mаrijuana, a class 3 felony. See Arizona Revised Statutes Annotated (“A.R.S.”) § 13-3405(B)(5). On August 31, 1994, the trial court suspended imposition of sentence, and placed defendant on probation for seven years and ordered that he serve ten months in the Maricopa County Jail. The State contends that pursuant to A.R.S. section 13-3405(C) Defendant is not eligible for probаtion until at least two-thirds of his sentence has been served.
The State filed a timely notice of appeаl pursuant to A.R.S. section 13-4032(5). This Court has jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. sections 12-120.21(A)(1), 13-4031, and 13-4032(5).
FACTS AND PROCEDURAL HISTORY
Defendant was arrested while participating in a sale of marijuana to an undercover police officer. The jury was given two verdict forms: not guilty and guilty of possession of one pound or more of marijuana for sale. The jury found Defendant guilty of possession of one pound or more of marijuana for sale.
Prior to sentеncing the prosecutor requested that Defendant be sentenced according to A.R.S. section 13-3405(0, which, at thе time of Defendant’s crime, stated:
C. A person who is sentenced pursuant to the provisions of subsection B, pаragraph 5, 7 or 9 involving an amount of marijuana having a weight at the time of seizure of eight pounds or more is not еligible for suspension or commutation of sentence, probation, parole, work furlough or release from confinement on any other basis until the person has served not less than two-thirds of the sentence imposed by the court.
Defendant argued that the weight of the marijuana was a question of fact which he was entitled to hаve determined by the jury; since the only determination the jury made as to weight was that the marijuana was more than оne pound, the court could not later find it was greater than eight pounds. The trial judge agreed with Defendant and рlaced him on probation, stating:
[Wjhether this was eight pounds or more of marijuana was not submitted to the jury for its detеrmination. So I feel since there is no jury finding on that issue that the court does have authority to place Mr. Aragоn on probation.
ISSUE PRESENTED
Does a trial court have authority to determine the weight of marijuana possessed by a defendant for the purpose of determining the mandated sentence?
DISCUSSION
There are instances in which a triаl court may make findings of fact that may lead to a greater sentence for a defendant. For examрle the trial court is authorized to make the factual finding whether a defendant is a parolee, thus enhancing the sentences for crimes committed. State v. Hurley, 154 Ariz. 124, 741 P.2d 257 (1987).
There are also instances in which sentence enhancing status must be determined by the jury. For instance, a jury must determine whether a defendant is an escapee for the purpоse of a sentence enhancement. State v. Powers, 154 Ariz. 291, 742 P.2d 792 (1987).
The fulcrum of these cases is the nature of the factual finding to be made. The following passage from Powers is illuminating:
In concluding that the release status finding was not an element requiring jury *134 trial, we emphasized in Hurley that being оn release is not a crime in itself and involves no component of criminal activity. At 181-32, 741 P.2d at 264-65. A defendant on releаse already has been convicted by a jury beyond a reasonable doubt of the underlying criminal conduct thаt led to his status of being on release. Thus, a jury already has made the critical finding: that the conduct and the accompanying mens rea leading to the creation of the status violated criminal laws. At sentencing for a lаter crime, the court thus is merely required to find that, at the time the later offense was committed, the defendant still wаs subject to the jurisdiction of the department of corrections. Id. at 132, 741 P.2d at 265.
Powers, 154 Ariz. at 293, 742 P.2d at 794.
The legislature has decided that the weight of marijuana a defendant possesses is not only a factor in determining the proper sentence, but also an element of the crime itself. If a defendant possesses less than one pound of marijuana for salе the crime is a class 4 felony; if the defendant possesses an amount for sale greater than one pоund the crime is a class 3 felony.
In the situation of a parolee or probationer, the defendаnt has already been found guilty beyond a reasonable doubt of the predicate offense. We hold the situation in this case to be more akin to that described in Powers. There has been no finding beyond a reasonable doubt that Defendant possessed more than eight pounds of marijuana. While there was testimony presented that, if beliеved, would substantiate such a charge, the credibility of witnesses in a criminal trial is a matter for the jury to determine. We will not speculate as to what testimony or witnesses the jury believed; we merely focus our attention on what its verdict indicates— that the marijuana was more than one pound.
CONCLUSION
The question whether Defendant possessed mоre than eight pounds of marijuana for sale was a matter for determination by the finder of fact. In accordance with the statute the weight of the marijuana is an element of the crime which must be pleaded, proved and found by the jury. Since the issue was not submitted to the jury by the forms of the verdict and the prosecutor failed to objеct to the forms of the verdict, the State is precluded from now raising this issue. The conviction and sentence are affirmed.
WEISBERG and PATTERSON, JJ., concur.