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Hoekzema v. State (9/26/2008) ap-2185

Hoekzema v. State (9/26/2008) ap-2185

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DANIEL M. HOEKZEMA, )
) Court of Appeals No. A-9890
Appellant, ) Trial Court No. 3PA-05-1024 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2185 September 26, 2008
)
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Gregory Heath, Judge.

          Appearances:   Doug Miller, Assistant  Public
          Advocate, and Joshua Fink and Rachel  Levitt,
          Public   Advocates,   Anchorage,   for    the
          Appellant.    Terisia  Chleborad,   Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Daniel  M. Hoekzema appeals his conviction for  fourth-
degree  controlled substance misconduct (possession of  at  least
one  ounce  of marijuana with intent to deliver),1  and  he  also
appeals the sentence that he received for this crime.
          Hoekzema  contends that the evidence presented  at  his
trial  was  insufficient  to  support  the  conclusion  that   he
possessed  one  ounce or more of marijuana.  He further  contends
          that even if the evidence of possession was sufficient, the
evidence  was  insufficient to support  the  conclusion  that  he
intended to distribute this marijuana.  For the reasons explained
here,  we  conclude that the evidence was sufficient to establish
both of these elements.
          With  regard to his sentence, Hoekzema argues that  the
superior  court improperly treated him as a third felony offender
rather  than a second felony offender for presumptive  sentencing
purposes.  For the reasons explained here, we direct the superior
court to reconsider this issue.
          Hoekzema   further  argues  that  the  superior   court
committed  error  when  the  court  rejected  his  two   proposed
mitigating  factors:  AS 12.55.155(d)(8) (that  his  conduct  was
among  the  least  serious encompassed by the definition  of  the
offense),  and AS 12.55.155(d)(13) (that his controlled substance
offense  involved only small quantities).  We uphold the superior
courts  ruling with respect to mitigator (d)(8), but  we  reverse
the  superior  courts ruling with respect to  mitigator  (d)(13).
Under the facts of Hoekzemas case, the superior court should have
found this mitigator.

Underlying facts

          For  purposes  of  resolving Hoekzemas  claim
that  the  evidence  was insufficient  to  support  his
conviction, we are obliged to view the evidence in  the
light  most favorable to sustaining the jurys verdict.2
We therefore recite the evidence in that light here.
          A  state trooper stopped Hoekzemas vehicle on
the Parks Highway because the vehicle had an inoperable
headlight  and an expired registration.  When  Hoekzema
rolled  down  his car window, the trooper detected  the
odor of fresh or green marijuana coming from inside the
car.   The trooper then noticed a one-quart Ziploc  bag
and  one smaller sandwich bag on the floor of the  car.
When  the trooper asked Hoekzema if there was marijuana
in  these  bags, Hoekzema replied that there  had  been
marijuana  in the bags, but they were now empty.   When
Hoekzema  held the bags up for the trooper to see,  the
trooper observed remnants of marijuana in the bags.
          Hoekzema consented to have the trooper search
his vehicle, and the trooper directed Hoekzema to stand
in  front of the vehicle so he could see Hoekzema while
he searched the car.
          While the trooper conducted the search of the
car,  he  noticed that Hoekzema was pacing in front  of
the  vehicle, and that Hoekzema also repeatedly put his
hands  in  and out of his jacket pockets  in  a  manner
suggesting  that he might be trying to throw  something
to  the  ground.   According to the  trooper,  Hoekzema
watched  him like a hawk, and he seemed to  be  waiting
for an opportunity to do something when the trooper was
not watching.
          To  test this hypothesis, the trooper  ducked
his head under the dashboard to see what Hoekzema would
          do when he was out of sight.  The trooper observed
Hoekzema  turn  his back, hunch up his shoulders,  look
away,  bring  his hands together in front of  him,  and
make a quick motion.  These actions led the trooper  to
believe that Hoekzema had just thrown something to  the
ground.
          The trooper got out of the car and walked  to
where  Hoekzema  had  been  standing.   There,  on  the
ground,  the trooper observed a quart-size Ziploc  bag.
This   quart-size  bag  contained  twelve  individually
wrapped  cellophane baggies of marijuana,  each  baggie
containing an approximately equal amount (slightly over
2.5 grams).  All told, the quart-size bag contained  31
grams of marijuana.
          The  trooper  then searched Hoekzemas  person
and  found  an  orange-colored pill  bottle  containing
another  4.4  grams  of marijuana.  Hoekzema  told  the
trooper that this marijuana was [his] personal stash.
          Based  on these events, Hoekzema was  charged
with  possession of one ounce or more of marijuana with
intent to deliver.  (One ounce equals 28.35 grams.)

Hoekzemas  claim  that the evidence is insufficient  to
support his conviction

          Hoekzema  makes two separate claims regarding
the  sufficiency of the evidence to support  the  jurys
verdict.   First,  he  claims  that  the  evidence   is
insufficient to support a finding that he possessed the
marijuana  found in the quart-size bag on  the  ground.
Second,  he  claims  that  even  if  the  evidence   is
sufficient   to  establish  his  possession   of   this
marijuana,  the evidence is insufficient to  support  a
finding that he intended to distribute the marijuana.
          When  a  defendant challenges the sufficiency
of  the  evidence to support the verdict, the  test  is
whether, viewing the evidence (and the inferences to be
drawn  from that evidence) in the light most  favorable
to  upholding  the  verdict, fair-minded  people  could
conclude that the State had proved these elements.3
          Here,  the troopers observations of Hoekzemas
furtive  movements, followed by the troopers  discovery
of  the  quart-size  bag  (a bag  filled  with  smaller
baggies  of marijuana) in the place where Hoekzema  had
been  standing, are sufficient to support a  reasonable
inference that Hoekzema knowingly possessed the bag and
the marijuana within the bag.
          With  regard  to  whether  the  evidence  was
sufficient to establish that Hoekzema intended to  sell
or  otherwise distribute this marijuana, we  note  that
the  marijuana in the quart-size bag was  divided  into
twelve  smaller baggies, each containing an essentially
equal   amount  of  marijuana.   The  State   presented
evidence  (in  particular,  the  testimony  of  Houston
Police Chief John Rhyshek) that packaging of this  sort
          indicated that the smaller baggies of marijuana were
destined  for  sale.  We further note  that,  when  the
trooper  searched Hoekzemas person and found a separate
container (an orange-colored pill bottle) with  another
4.4  grams of marijuana, Hoekzema told the trooper that
this  marijuana was his personal stash  thus suggesting
that  the marijuana in the quart-size bag was  not  for
personal   use.   All  together,  this   evidence   was
sufficient  to  support  a reasonable  conclusion  that
Hoekzema  intended  to  distribute  the  31  grams   of
marijuana found in the quart-size bag.
          For  these  reasons,  we  conclude  that  the
evidence presented at Hoekzemas trial is sufficient  to
support his conviction.

Whether Hoekzema should have been sentenced as a second
felony offender or a third felony offender

          Hoekzemas  offense, fourth-degree  controlled
substance  misconduct,  is  a  class  C  felony.4   The
overall sentencing range for this class C felony  is  0
to  5  years  imprisonment.   There  is  a  presumptive
sentencing  range  of 2 to 4 years  for  second  felony
offenders, and a presumptive range of 3 to 5 years  for
third (or subsequent) felony offenders.5
          Hoekzema had two prior felony convictions   a
conviction  for first-degree robbery and  a  conviction
for first-degree assault  but both of these convictions
arose  from  the  same criminal episode,  and  Hoekzema
received  concurrent sentences for  these  two  crimes.
Because  of  this, there is a question  as  to  whether
Hoekzema  should have been treated as a  second  felony
offender  or  a  third felony offender for  presumptive
sentencing purposes.
          The  calculation  of a defendants  number  of
prior  felony convictions is governed by AS  12.55.145.
Under subsection (1)(C) of that statute, if a defendant
has  two  or more felony convictions arising out  of  a
single,  continuous criminal episode, and if there  was
no  substantial  change in the nature of  the  criminal
objective during that episode, and if the defendant was
[not]  sentenced  to  consecutive  sentences  for   the
crimes, then these felony convictions are considered  a
single   [felony]  conviction  for   the   purpose   of
determining  whether the defendant is  a  second  or  a
third  felony offender under the presumptive sentencing
laws.
          Because    Hoekzemas   two    prior    felony
convictions  arose from a single criminal episode,  and
because he received concurrent sentences for these  two
crimes,   the   only   question  remaining   under   AS
12.55.145(1)(C)  is  whether there  was  a  substantial
change  in the nature of the criminal objective  during
the criminal episode.  That issue was not litigated  in
the superior court.
          On appeal, the State asserts that if Hoekzema
believed  that he should be treated as a second  felony
offender  rather than as a third felony offender,  then
it  was  Hoekzemas  burden  to  raise  this  issue  and
litigate it.  Normally, we might agree with the  State.
But the facts of Hoekzemas case are a bit unusual.
          Alaska  Criminal Rule 32.1(a)(2)(A)  declares
that  if  a defendant is convicted of a felony governed
by  presumptive sentencing, [t]he state  shall  file  a
notice  [that]  presumptive  sentencing  [applies]  and
[shall  list]  the  defendants prior  convictions  that
qualify as prior felony convictions under AS 12.45.145.
[Sic:  The correct statute is AS 12.55.145.]
          In   Hoekzemas  case,  the  State  filed  the
required  notice, and this notice listed Hoekzemas  two
prior felony convictions from a single court case (File
No.  3PA-92-1387 Cr), but the State did not  explicitly
assert  whether  it  believed  that  these  two   prior
convictions  should be counted as separate  convictions
or as a single conviction under AS 12.55.145.
          Even  though  the States notice did  not  say
whether  the  State  believed that Hoekzema  should  be
sentenced  as  a second or third felony  offender,  the
prosecutor had already implicitly announced the  States
position on this matter  by telling the superior  court
that  Hoekzema  should be sentenced as a second  felony
offender.
          As   explained   above,  Hoekzema   faced   a
presumptive sentencing range of 2 to 4 years if he  was
a  second felony offender, and a sentencing range of  3
to  5 years if he was a third felony offender.  At  the
end  of  Hoekzemas trial, after the jury found Hoekzema
guilty  and  the judge ordered preparation  of  a  pre-
sentence   report,  the  following  colloquy   occurred
between  the  trial  attorneys  and  the  trial  judge,
Superior Court Judge pro tempore Gregory Heath.  During
this  colloquy, the prosecutor told the judge that even
though  Hoekzema had two prior felony convictions,  the
minimum  presumptive  term was 2  years,  not  3   thus
implying  that  the prosecutor believed  that  Hoekzema
should be treated as a second felony offender:
     
          The Court:  This [will be] a presumptive
     felony sentence?
     
          Prosecutor:   Yes, it  [will  be].   ...
     His  prior  Ill get it for you.  Assault  and
     burglary,  I  believe.   [Sic:   assault  and
     robbery]  Hes got two previous felonies.
     
          The  Court:   [Then] hes  looking  at  a
     presumptive three years on this case?
     
          Defense Attorney:  No, two years.
     
          Prosecutor:  Two [years] on each.6
               .  .  .
     
          The  Court:  So he has one prior  felony
     conviction?
     
          Prosecutor:  No, sir.
     
          The Court:  Two prior [convictions]?
     
          Prosecutor:  He has a 93 robbery  and  a
     93   assault,   which  [was   reduced   from]
     attempted murder ... .
     
     The  Court:  And ... was that  the  same
case?

     Defense Attorney:  Yes.

     The Court:  Okay.

     Prosecutor:  Same cases.  [sic]

          The  prosecutor repeated this  same
view   of  matters  at  Hoekzemas  sentencing
hearing.   At  the  sentencing  hearing,  the
State  proved  one  aggravating  factor:   AS
12.55.155(c)(7)  that Hoekzemas prior  felony
offenses  (first-degree  robbery  and  first-
degree  assault, both class A felonies)  were
of  a  more serious class of felony than  his
current   offense.   During  his   sentencing
argument,  the  prosecutor told  Judge  Heath
that   the  sentencing  range  for  Hoekzemas
current   offense   was   2   to   5    years
imprisonment.  This comment makes sense  only
if  the  prosecutor  believed  that  Hoekzema
faced  a  presumptive range of 2 to  4  years
(the   range  prescribed  for  second  felony
offenders),  but  that Judge  Heath  had  the
authority  to  exceed this presumptive  range
and  impose  a  sentence  up  to  the  5-year
maximum term because the State had proved the
aggravating factor.
          During    the   defense   attorneys
sentencing  remarks, she too  indicated  that
Hoekzema faced sentencing as a second  felony
offender.   Although  the  defense   attorney
never  directly asserted that Hoekzema was  a
second   felony   offender  for   presumptive
sentencing     purposes,    her    sentencing
recommendation  2 years with 1 year suspended
appears to have been based on this premise.
          Thus, from the remarks made at  the
close  of  Hoekzemas trial and then later  at
          the sentencing hearing itself, it appears
that  both  the  prosecutor and  the  defense
attorney held the belief that Hoekzema was  a
second   felony   offender  for   presumptive
sentencing  purposes  in  other  words,  that
Hoekzemas two prior felony convictions should
only  be  counted as one under the test  laid
out in AS 12.55.145(1)(C).
          But  when Judge Heath announced his
sentencing   decision,   he   declared   that
Hoekzema was a third felony offender:

     The  Court:   The  Court  is  going   to
decline  to  find  ...  [Hoekzemas  proposed]
mitigators.   I dont think the defendant  has
proven  [those]  by  a preponderance  of  the
evidence.  However, Im not going to give  any
weight to the [States] aggravator either.   I
dont  think  it really warrants  any  weight.
[And]  the presumptive part of the sentencing
takes  [into account] the aggravator  anyway.
Hes  a  third-time presumptive [sic], so  the
presumptive sentencing range is 3 to 5 years.
So  I  really  dont  need the  aggravator  to
[impose]  5  years ... to serve  but  Im  not
going to impose that amount [in any event].

Judge  Heath  then sentenced  Hoekzema  to  5
years  with  2 suspended (i.e.,  3  years  to
serve).
          Shortly after Judge Heath announced
this sentence, the prosecutor asked the judge
a series of questions which indicated that he
(i.e.,  the  prosecutor) still believed  that
Hoekzema was a second felony offender, not  a
third  felony offender.  In these  questions,
the  prosecutor suggested that Hoekzema faced
a  presumptive sentencing range  of  2  to  4
years, and that Judge Heath needed to rely on
the  aggravating factor if he  was  going  to
impose  a  total of 5 years (even with  2  of
these years suspended):

     Prosecutor:  Your Honor, may I ask [for]
clarification  [with regard to the  marijuana
sentence]?
          .  .  .

     The   Court:    Its  5  years   with   2
suspended, 3 to serve.

     Prosecutor:  Okay.

     The Court:  The presumptive 3.

     Prosecutor:  And my understanding is ...
that   youre   giving  no   weight   to   the
aggravator[] for purposes of time  to  serve,
but  youre using the aggravator to get to the
5 years?

     The   Court:   I  dont  think,  legally,
[that]  I  have to [rely on the  aggravator],
because the presumptive sentencing range is 3
to 5.  ...

     Prosecutor:  Okay.

          It is true, as the State points out
on  appeal, that the defense attorney made no
objection  (or  any other comment)  to  Judge
Heaths  last-quoted  remark.   This  lack  of
objection  may be attributable  to  the  fact
that  the  State  had proved  an  aggravator.
Because  of this aggravator, Judge Heath  was
authorized  to impose a sentence of  5  years
even if Hoekzema was a second felony offender
and the applicable presumptive range was 2 to
4 years.  See AS 12.55.155(a)(1).
          Nevertheless,  the record  provides
clear  evidence that both the State  and  the
defense  believed  that  Hoekzema  should  be
sentenced as a second felony offender  rather
than  as  a third felony offender,  and  that
Judge  Heath reached the opposite  conclusion
without seeking the input of the parties  and
without addressing the crucial factual  issue
under AS 12.55.145(1)(C)  i.e., the issue  of
whether there was a substantial change in the
nature  of the criminal objective during  the
criminal  episode that gave rise to Hoekzemas
two prior felony convictions.
          As  we  explain in the next section
of  this opinion, we must send Hoekzemas case
back  to the superior court for re-sentencing
because   the   court  erroneously   rejected
Hoekzemas   proposed   mitigator   of   small
quantity.   Since  the  superior  court  must
reconsider Hoekzemas sentence, we direct  the
superior court to likewise reconsider whether
Hoekzema  was a second felony offender  or  a
third   felony   offender   for   presumptive
sentencing purposes.

Hoekzemas proposed mitigators:  conduct among the least
serious, and small quantity

     As  we  noted earlier, Hoekzema proposed  two
mitigating factors under AS 12.55.155(d):   (d)(8)
that  his  conduct  was among  the  least  serious
within  the definition of the offense; and (d)(13)
that his offense involved only small quantities of
a controlled substance.
     With  regard  to  mitigator (d)(8),  Hoekzema
argued  that  his  conduct  was  among  the  least
serious   because  he  was  wrongfully  convicted.
Hoekzema  contended  that  the  marijuana  in  his
possession  was not for sale or other distribution
that it was purely for his personal use.  The jury
had  already  resolved this issue  when  it  found
Hoekzema  guilty  of  possession  with  intent  to
deliver,   and  Hoekzema  was  not   entitled   to
relitigate  this  question of fact.   Thus,  Judge
Heath properly rejected this proposed mitigator.
     We  do, however, find that the superior court
committed error with respect to mitigator (d)(13),
the  small quantities mitigator.  Hoekzema  argued
that his offense involved only a small quantity of
marijuana    because   the   statute    proscribed
possession of one ounce or more (i.e., 28.35 grams
or  more), and Hoekzema possessed 35.4  grams   in
other  words,  an amount only slightly  above  the
amount that triggered the statute.
          Actually,  when Hoekzemas attorney relied  on
this  figure  of 35.4 grams, she understated  Hoekzemas
position   by overstating the amount of marijuana  that
he  possessed  with intent to sell or deliver.   As  we
explained earlier in this opinion, Hoekzema had a total
of  31 grams of marijuana in the quart-size Ziploc  bag
(divided into twelve smaller baggies), and another  4.4
grams  in the pill bottle in his pocket.  According  to
the  testimony, Hoekzema described the 4.4 grams as his
personal  stash, and there was apparently  no  contrary
evidence.   Thus, with respect to Hoekzemas  possession
of  marijuana with intent to deliver, it seems that the
amount involved was 31 grams, not 35.4 grams.
          When   the  prosecutor  responded   to   this
proposed mitigator, his sole argument was that Hoekzema
possessed  more  than the statutory  minimum  of  28.35
grams:
     
          Prosecutor:   [W]hen  the  statute  says
     [one]  ounce, that[s] 28 [grams].  He was  at
     35  grams,  and theres 28 grams to an  ounce.
     Hes way over.  Hes way over.
          .  .  .
     
          It  just  flies  in the face  of  common
     sense to say that this is a small amount or a
     small  quantity.  This is well over an ounce.
     Hes got 35 grams.  28 is all I need.  Ive got
     an excess of [marijuana].
     
               After   hearing   these   competing
     arguments,  Judge Heath found  that  Hoekzema
     had failed to prove mitigator (d)(13):
     
          The  Court:   The  Court  is  going   to
     decline  to  find  ...  [Hoekzemas  proposed]
     mitigators.   I dont think the defendant  has
     proven  [those]  by  a preponderance  of  the
     evidence.
     
               As can be seen, Judge Heath offered
     no  explanation for his ruling.  We therefore
     presume   that   the   judge   adopted    the
     prosecutors argument that the small  quantity
     mitigator  does not apply to cases where  the
     defendant  possesses more than the  statutory
     minimum  amount of the controlled  substance.
     This approach is wrong.
          To   date,   our   most   extensive
discussion  of  the small quantity  mitigator
was in Knight v. State, 855 P.2d 1347 (Alaska
App.  1993).  In Knight, we held that a small
quantity for purposes of mitigator (d)(13) is
a quantity that is uncharacteristically small
when  compared to the broad middle ground  of
conduct  encompassed by the statute  defining
the defendants offense.  Id. at 1349.
          We  also  suggested in Knight  that
the determination of what is a small quantity
is primarily a question of fact rather than a
question of law  and that, for this reason, a
sentencing  judges  decision  on  this  issue
should normally be reviewed under the clearly
erroneous  standard of review  (the  standard
that  applies to findings of historical fact)
rather  than the de novo standard  of  review
(the  standard  that applies  to  rulings  of
law).  Here is what we said in Knight:

     Within    any    class   of   controlled
substance,  what  constitutes  an   unusually
small or large quantity may vary from case to
case,  depending  on variables  such  as  the
precise nature of the substance and the  form
in which it is possessed, the relative purity
of the substance, its commercial value at the
time   of   the  offense,  and  the  relative
availability or scarcity of the substance  in
the  community where the crime is  committed.
Variations  may also occur over  time:   what
amounted  to  a typical controlled  substance
transaction  ten  years  ago  might   be   an
exceptional one today.

     These  variables do not lend  themselves
to an inflexible rule of general application,
and  they  render  it  both  undesirable  and
wholly  impractical to treat the question  of
what  constitutes a large or  small  quantity
for  purposes  of  [aggravator]  (c)(25)  and
[mitigator  (d)(13)] as an abstract  question
of   law.   The  question  must  instead   be
resolved by the sentencing court as a factual
matter, based on the totality of the evidence
in  the case and on the courts discretion, as
informed by the totality of its experience.

Knight, 855 P.2d at 1349-1350.
          Although  our subsequent  decisions
have  adhered to the fact-based approach laid
out  in  Knight,  the Alaska  Supreme  Courts
decision  in Michael v. State, 115  P.3d  517
(Alaska  2005), casts doubt on our  assertion
in Knight that this issue is primarily one of
fact  rather  than  law.   In  Michael,   the
supreme  court held that the decision  as  to
whether  a  defendants conduct is  among  the
least  serious  within the definition  of  an
offense  (i.e., the decision  as  to  whether
mitigator  (d)(8)  is  proved)  is  a   mixed
question of fact and law  and that, once  the
facts  have  been determined,  the  issue  of
whether  those facts constitute least serious
conduct   is  purely  a  question   of   law.
Michael, 115 P.3d at 519.  The supreme  court
declared  that the answer to these  questions
should not vary from case to case or judge to
judge.  Id. at 520.
          We  need not decide whether, or  to
what  extent, the supreme courts decision  in
Michael  requires  a  re-examination  of  our
basic   approach  in  Knight.    Rather,   we
conclude   that  even  under  the  fact-based
approach  set  forth in Knight, the  superior
courts  ruling  in Hoekzemas  case  regarding
mitigator (d)(13) was erroneous.
          In   Knight,   the  defendant   was
convicted  of  violating AS  11.71.030(a)(1),
the statute proscribing the possession of any
amount  of cocaine for purposes of delivery.7
Given  the fact that this statute encompasses
a  range of possession from trace amounts  to
truckloads, it may have made sense  for  this
Court to defer to the experience of the trial
court  on the issue of whether the amount  of
cocaine  in  Knights  possession   thirty-one
slips with an aggregate weight of 10.5 grams8
was  a  small  quantity within the  world  of
cocaine-dealing.
          But   the   statute  at  issue   in
Hoekzemas  case  is not so open-ended.   That
statute  proscribes  the  possession  of  one
ounce  or  more of marijuana for purposes  of
delivery.  Possession of less than one  ounce
for purposes of delivery is a lower level  of
offense.9
          When  the  dividing line between  a
more  serious  offense  and  a  less  serious
offense is defined in terms of quantity,  the
assessment  of  the small quantity  mitigator
must be based on that dividing line.
          In  State  v. Parker, 147 P.3d  690
(Alaska  2006),  the supreme court  addressed
the  related  question of how to  assess  the
aggravating factor of conduct among the  most
serious  and the mitigating factor of conduct
among  the least serious.  The supreme  court
noted that this aggravator and this mitigator
are  most clearly defined when the underlying
criminal statute defines the offense in terms
of number or value.  Id. at 695.  The supreme
court  cited  the Commentary  to  the  Alaska
Revised  Criminal Code, Senate Journal  Supp.
No.  47  (June 12, 1978), p. 161,  where  the
legislature  suggested that  a  second-degree
theft of property valued at $24,999 should be
viewed as among the most serious, because the
value of the stolen property is only $1 short
of   the  threshold  value  for  first-degree
theft,  which  is  a  class  B  felony.   The
supreme   court  also  cited  the  concurring
opinion  of  Judge Singleton  in  Braaten  v.
State,  705  P.2d  1311,  1325  (Alaska  App.
1985),   where  he  suggested  that  when   a
defendants      conduct     approaches      a
lesser-included offense, this should normally
warrant  a  finding of the conduct among  the
least serious mitigator.  Parker, 147 P.3d at
695 n. 27.
          We   believe   that  an   analogous
approach is required in Hoekzemas case.   The
statutory  dividing  line  between  Hoekzemas
offense and the lesser misdemeanor offense is
defined in terms of quantity:  possession  of
marijuana for sale is a felony if the  amount
possessed is one ounce or greater;  it  is  a
misdemeanor if the amount possessed  is  less
than one ounce.
          Above this one-ounce threshold, the
felony  statute encompasses a large range  of
marijuana   possession    from   a    minimum
possession of one ounce (28.35 grams)  to  an
indefinite  maximum possession that  includes
store  rooms  of  marijuana.   And  we   take
          judicial notice that, among the marijuana
possession  cases that have  come  to  us  on
appeal,  we  have seen many cases  where  the
amount  of marijuana possessed for  sale  (or
apparently  possessed for sale) far  exceeded
the 31 grams that Hoekzema possessed.10
          Even  under the fact-based approach
of  Knight, there have been cases  where  the
facts  were  so clear that we have overturned
trial  court  decisions rejecting  the  small
quantity   mitigator.    For   instance,   in
Dollison  v.  State, 5 P.3d 244, 248  (Alaska
App.  2000), we concluded that the sentencing
judge  should have ruled that the  defendants
possession  of .05 grams of cocaine,  with  a
commercial  value  of $10.00,  constituted  a
small quantity.
          We  reach  a similar conclusion  in
Hoekzemas  case.   The smallest  quantity  of
marijuana  covered by the felony  statute  is
28.35  grams   and, according to  the  States
proof,  Hoekzema  had a  total  of  31  grams
packaged for sale.  This 31 grams was divided
into  twelve  more  or less  equal  portions.
Thus,  if Hoekzema had possessed only  eleven
of  these  individual baggies, the amount  of
marijuana in his possession would have barely
exceeded the statutory floor of 28.35  grams;
and  if  he had possessed only ten  of  these
baggies, the total amount of marijuana  would
have been below the statutory floor  bringing
his offense down to a misdemeanor level.
          As  we have already explained,  the
Alaska legislature has divided possession-of-
marijuana-for-sale    offenses    into    two
categories.   Those involving less  than  one
ounce  are punished as misdemeanors under  AS
11.71.050(a)(1),  while those  involving  one
ounce  or more are punished as felonies under
AS    11.71.040(a)(2).    Hoekzemas   offense
possession  of 31 grams with intent  to  sell
was  only slightly on the felony side of this
dividing  line, and (according to the  States
evidence)  the  total selling price  of  this
amount  of marijuana was a relatively  modest
$300.
          We  hold  that, among  the  conduct
included  within  the  felony  possession  of
marijuana   for   sale   statute,   Hoekzemas
possession of 31 grams was a small  quantity.
We  therefore  reverse  the  superior  courts
ruling on this issue.

Conclusion

     We AFFIRM Hoekzemas conviction for possessing
marijuana  with  intent to deliver.   However,  we
REVERSE  the superior courts decision on mitigator
(d)(13), and we further direct the superior  court
to  reconsider the issue of whether  Hoekzema  was
subject  to sentencing as a second felony offender
or a third felony offender.

_______________________________
  1 AS 11.71.040(a)(2).

2 Eide v. State, 168 P.3d 499, 500-01 (Alaska App. 2007).

3 Eide, 168 P.3d at 500-01.

4 AS 11.71.040(d).

5 AS 12.55.125(e).

6 The State took Hoekzema to trial on two felony charges:  the
fourth-degree controlled substance misconduct charge that is
the  subject  of  this  appeal,  and  a  related  charge  of
tampering  with evidence (for throwing the bag of  marijuana
to  the  ground).  The jury found Hoekzema  guilty  of  both
charges.   However,  at  Hoekzemas sentencing  hearing,  the
prosecutor  conceded that the evidence tampering charge  was
not legally supportable, and this conviction was vacated  by
stipulation of the parties.

7855 P.2d at 1348.

8Id.

9See AS 11.71.050(a)(1).

10  See, e.g., State v. Smith, 182 P.3d 651, 652-53 (Alaska
App.  2008) (9.85 pounds); Garhart v. State,  147  P.3d
746,  747  (Alaska  App. 2006) (4  pounds);  Murray  v.
State,   54   P.3d   821,  822   (Alaska   App.   2002)
(approximately  6  ounces); Maness v.  State,  49  P.3d
1128,  1133  (Alaska  App.  2002)  (approximately   3.7
pounds);  Walker  v. State, 991 P.2d 799,  801  (Alaska
App.  1999)  (at least 8 ounces); Landon v. State,  941
P.2d  186,  193  (Alaska App. 1997) (6  or  7  pounds);
Fleener v. State, 686 P.2d 730, 735 (Alaska App.  1984)
(5 pounds).

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