Opinion
No. 1 CA-CR 13-0584
01-13-2015
STATE OF ARIZONA, Appellee, v. MICHAEL DEVAUGHN JOHNSON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee The Hopkins Law Office, P.C., Tucson By Cedric Martin Hopkins Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2011-114400-003
The Honorable Pamela Hearn Svoboda, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Kenton D. Jones and Judge Michael J. Brown joined. SWANN, Judge:
¶1 Michael DeVaughn Johnson appeals his convictions and sentences for possession of dangerous drugs for sale, possession of narcotic drugs for sale, and possession of marijuana. Johnson argues that because he was exposed to a sentence of more than 30 years when his case was submitted to a jury of less than 12 jurors, he was deprived of his rights under Article 2, Section 23, of the Arizona Constitution. We find that deliberations by an eight-person jury removed any risk of a sentence of 30 years or more. Therefore, no constitutional error occurred.
FACTS AND PROCEDURAL HISTORY
¶2 Johnson was charged with two class-four felonies, two class-two felonies, and one class-six felony. The state also alleged multiple aggravating factors, exposing Johnson to a sentence of more than 30 years. At the start of trial, the court empanelled a 12-person jury with three alternates. The trial proceeded with a full jury panel until the tenth day of trial, when Johnson's attorney suffered a serious back injury and was not able to attend trial for the remainder of the week. Unfortunately, only nine jurors were available to continue with trial the following week. Relying on State v. Soliz, 223 Ariz. 116, 219 P.3d 1045 (2009), the trial court decided to resume trial the following week with an eight-person jury and one alternate—on the condition that the court would not impose a sentence of 30 years or more. Johnson informed the court that he did not agree with its decision and stated that he wanted his lawyer's advice before proceeding. Johnson later moved for a mistrial, which the court denied.
Although the court agreed not to impose a sentence in excess of 30 years, the state refused to dismiss any allegations of aggravating circumstances, taking the position that even though the state was technically seeking a sentence of more than 30 years, the court could only aggravate up to 29 years and 364 days.
¶3 The jury convicted Johnson of three of the five counts and found two aggravating factors. The court also found the existence of two historical prior felony convictions. Accordingly, the court sentenced Johnson to 15.75 years in prison.
¶4 Johnson timely appeals.
DISCUSSION
¶5 Whether Johnson was denied his right to a 12-person jury in violation of the Arizona Constitution is a question of law that we review de novo. See State v. Fitzgerald, 232 Ariz. 208, 216, ¶ 37, 303 P.3d 519, 527 (2013).
¶6 The Arizona Constitution requires a 12-person jury in criminal cases where a sentence of imprisonment for 30 years or more is authorized by law. Ariz. Const, art. II, § 23. Here, Johnson initially faced a sentence in excess of 30 years, and the argument that a 12-person jury was required at all stages of his trial is not without textual foundation. In Soliz, however, our supreme court held that although the defendant was exposed to a 35-year sentence, "[his] trial to an eight-person jury removed any risk of his receiving a sentence of thirty years or more," therefore, "no constitutional error occurred." Soliz, 223 Ariz, at 119, ¶ 12, 219 P.3d at 1048. The court reasoned that when either the state or the trial court acted explicitly to reduce the defendant's jeopardy before jury deliberations began, or acted implicitly by failing to request or empanel a jury of 12, "a sentence of thirty years or more is no longer permitted and that the twelve-person guarantee of Article 2, Section 23 is not triggered." Id. at 120, ¶ 16, 219 P.3d at 1049. ¶7 Here, the court acknowledged that it could not impose a sentence longer than 29 years and 364 days, explicitly acting to reduce Johnson's jeopardy before jury deliberations began. Accordingly, Johnson, like Soliz, could not, as a matter of law, receive a sentence of 30 years or more, and Article 2, Section 23, was not triggered. Id. at ¶ 18.
CONCLUSION
¶8 For the foregoing reasons, we affirm Johnson's convictions and sentences.