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State v. Kameroff (11/16/2007) ap-2124

State v. Kameroff (11/16/2007) ap-2124

                             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


STATE OF ALASKA, )
) Court of Appeals No. A-9621
Petitioner, ) Trial Court No. 4BE-05-1142 CR
)
v. ) O P I N I O N
)
JOSEPH W. KAMEROFF, )
) [No. 2124 - November 16, 2007]
Respondent. )
) (as corrected November 26, 2007)
Appeal    from     the
          Superior  Court,  Fourth  Judicial  District,
          Bethel, Leonard R. Devaney, III, Judge.

          Appearances:    W.   H.   Hawley,   Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for  the  Petitioner.  Dan S. Bair, Assistant
          Public   Advocate,  Chad  W.  Holt,   Section
          Supervising  Attorney,  Anchorage  Adult  and
          Juvenile Section, and Joshua P. Fink,  Public
          Advocate, Anchorage, for the Respondent.

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

          COATS,  Chief Judge.
          MANNHEIMER, Judge, concurring.

          The  State filed complaints charging Joseph W. Kameroff
with  two  counts  of misdemeanor assault, one  count  of  sexual
assault in the second degree, and one count of sexual assault  in
the first degree.  All of the charges allegedly arose on July  1,
2005, at the Yukon Kuskokwim Correctional Center.   A.S. was  the
alleged  victim  of all of the assaults.  On  the  date  set  for
Kameroffs preliminary hearing on the sexual assault charges,  the
State  did not present any evidence, indicating that it  intended
to  indict  Kameroff on those charges.  The court  dismissed  the
felony  charges under Criminal Rule 5 because the State  had  not
presented  sufficient evidence to hold Kameroff on those  charges
at  a  preliminary  hearing.1  The misdemeanor  charges  remained
pending.
          Approximately forty-five days later, Kameroff sought to
change  his  plea on the two misdemeanor assault  offenses.   The
prosecution objected on the ground that, if Kameroff entered  his
plea  to  the misdemeanor assault charges, he might  be  able  to
claim that double jeopardy barred the State from prosecuting  him
on  sexual  assault  charges. Kameroff  argued  that  he  had  an
absolute  right  to  enter  a  plea to  the  pending  misdemeanor
charges.   Senior District Court Judge Ethan L. Windahl,  relying
on  Ridlington v. State,2 concluded that even if Kameroff pleaded
guilty  or no contest to the misdemeanors, those pleas would  not
bar  the  State from prosecuting Kameroff on the felony  charges.
Nevertheless,  Judge Windall granted the States motion  to  delay
the  misdemeanor change of plea hearing, so as to allow the State
to proceed with an indictment.
          A  grand  jury  indicted Kameroff on the felony  sexual
assault  charges in which A.S. was the victim, along with several
other   charges  that  are  not  relevant  to  this   discussion.
Kameroff  then  appeared in the superior  court  before  Superior
Court  Judge Leonard R. Devaney, III.   Kameroff moved to dismiss
the  felony  sexual assault charges where A.S.  was  the  alleged
victim.    Kameroff  argued  that  Judge  Windahl  had  illegally
prevented  him from changing his plea to the misdemeanor  assault
charges,  and  that  those assault charges  were  lesser-included
offenses   of  the  felony  sexual  assault  offenses.   Kameroff
asserted  that,  had  he been allowed to  enter  a  plea  to  the
misdemeanor   assault  charges, the State would have been  barred
from  proceeding on the sexual assault charges under  the  Double
Jeopardy Clause.
          Judge  Devaney  ruled  that Judge Windall  should  have
allowed  Kameroff  to  change his plea  to  the  two  misdemeanor
assault  charges.   Judge  Devaney further  concluded  that,  had
Kameroff  been  allowed  to enter his no  contest  pleas  to  the
misdemeanor charges, double jeopardy would have barred the  State
from  prosecuting him on all of the felony charges in which  A.S.
was the alleged victim.   He ruled that Kameroff was entitled  to
enter a plea of no contest to the two misdemeanor assault charges
and that, once Kameroff entered the pleas, the felony charges  in
which A.S. was the alleged victim would be dismissed because they
were barred by double jeopardy.
          The  State  petitioned  for review  of  Judge  Devaneys
decision.   We  granted  the  petition.   We  now  reverse  Judge
Devaneys order.

          Why we conclude that double jeopardy does not
          bar  the State from proceeding on the  felony
          charges

          Kameroffs  argument and Judge Devaneys ruling  rest  on
the  assumption  that  if Judge Windall had allowed  Kameroff  to
enter  no  contest pleas to lesser-included misdemeanor offenses,
the  State  would be precluded from pursuing the  greater  felony
charges.   This assumption is incorrect.  We start our discussion
with  Ridlington v. State.3  Ridlington was arrested for  driving
while intoxicated.  The State originally filed a misdemeanor  DWI
complaint, but the State discovered that Ridlington had prior DWI
convictions and filed another complaint charging Ridlington  with
felony  DWI.4   Ridlington  attempted  to  plead  guilty  to  the
misdemeanor charge, hoping that the Double Jeopardy Clause  would
then  bar  the State from pursuing the felony charge.5   But  the
magistrate refused to allow Ridlington to enter a guilty plea  to
the  misdemeanor.  After the State indicted Ridlington, he raised
the  same  argument that Kameroff now raises.  Ridlington  argued
that the magistrate had had no authority to refuse to accept  his
guilty  plea to the misdemeanor.  He argued that if he  had  been
allowed  to plead guilty to the misdemeanor, his plea would  have
barred  the State from pursuing the felony charge.6  The superior
court  rejected Ridlingtons argument, and Ridlington  pleaded  no
contest  to  felony DWI, reserving his right to raise the  double
jeopardy argument on appeal.7
          We  held  that, even if the magistrate had no right  to
refuse  to  allow  Ridlington  to enter  a  guilty  plea  to  the
misdemeanor  charge, Ridlington was mistaken  in  his  contention
that the State could not have prosecuted him for felony DWI.8  We
relied on the leading United States Supreme Court case of Ohio v.
Johnson.9   In Johnson, the Supreme Court held that the defendant
could  not plead guilty to some of the charges in his indictment,
which were lesser-included offenses of greater charges, and  then
assert that the Double Jeopardy Clause barred the government from
pursuing the greater offenses.10   The Supreme Court stated  that
it  saw  no  reason  to allow the defendant  to  use  the  Double
Jeopardy  Clause as a sword to prevent the State from  completing
its  prosecution on the remaining charges.11   The Supreme  Court
concluded  that allowing the government to prosecute Johnson  did
not  violate the basic protections of the Double Jeopardy  Clause
and  did not involve any overreaching by the government that  the
Double Jeopardy Clause was supposed to prevent.12  In Ridlington,
we  adopted the reasoning of the United States Supreme  Court  in
Johnson:
          Ridlingtons  motivation for trying  to  plead
          guilty  to the misdemeanor complaint  was  to
          stop  the  State  from  pursuing  the  felony
          complaint that had already been filed.  Under
          these   circumstances,  the   reasoning   and
          policies  described by the Supreme  Court  in
          Ohio  v.  Johnson apply with equal  vigor  to
          Ridlingtons case.[13]

          Kameroffs  case  is distinguishable  from  Johnson  and
Ridlington  in one respect.  In both Johnson and Ridlington,  the
          felony charges were pending at the time that the defendants
either  entered or attempted to enter their pleas to the  lesser-
included  offenses.   In Kameroffs case,  the  charges  were  not
pending; they had been filed but they were later dismissed  under
Criminal Rule 5.   But we conclude that this distinction  is  not
important  for  the resolution of this case.   For  instance,  in
United States v. Quinones,14 the defendant entered a guilty  plea
to  several  drug  counts  in the original  indictment  over  the
governments objection.15   The defendant entered his pleas in the
hope  of  barring  a charge that he had possessed  a  firearm  in
connection  with the drug offenses, a charge that  increased  the
mandatory minimum sentence he faced.16  The government  had  told
the  defendant that it intended to bring the gun charge, but  the
government  had not yet filed the charge.17   The Quinones  court
rejected  Quinoness double jeopardy claim based on  the reasoning
of  Ohio  v. Johnson.18   The court concluded that there  was  no
indication  that the government was engaging in the  overreaching
that  the Double Jeopardy Clause was designed to prevent and that
Quinones,  like the defendant in Johnson, was attempting  to  use
the  Double  Jeopardy Clause as a sword to prevent the government
from  pursuing the gun charge.19  Professors LaFave, Israel,  and
King, in their treatise on criminal procedures, conclude that:
          The  reasoning of [Ohio v.] Johnson  probably
          also allows the government, by objecting to a
          defendants  guilty plea to a lesser  offense,
          to  defeat  a defendants effort to  head  off
          more  serious  charges that were  not  joined
          with  the lesser offense at the time  of  the
          plea,  but were known by the defendant to  be
          pending in another indictment or about to  be
          filed.[20]

          We  agree  that the reasoning of Johnson precludes  the
remedy  that Kameroff requests in this case.  Kameroff  was  well
aware  of  the  felony charges that the government was  pursuing.
The  State also objected to having Kameroff enter a plea  to  the
misdemeanor  charges  in an attempt to preclude  the  State  from
proceeding  on  the felony charges.  We see no  reason  to  allow
Kameroff to use the Double Jeopardy Clause as a sword to preclude
the  State  from pursuing the felony charges where he  was  fully
aware that the State was actively proceeding on those charges.
          The superior courts order is REVERSED.
MANNHEIMER, Judge, concurring.

          I  write  separately to describe more fully  the  legal
authorities that we found on the question of double jeopardy  law
presented in this case.  These authorities are summarized in  the
2007  pocket part to Wayne R. LaFave, Jerold H. Israel, and Nancy
J. King, Criminal Procedure (2nd ed. 1999),  25.1, footnote 50 at
pp. 325-26.
          Judge Coatss lead opinion describes the Second Circuits
decision  in  United States v. Quinones, 906 F.2d 924  (2nd  Cir.
1990).  The two significant aspects of Quinones are (1) that  the
defendant  knew,  when  he  entered his  guilty  plea,  that  the
government intended to pursue other related charges, and (2) that
the government objected to the defendants change of plea.  Id. at
926.
          In  Quinones, the defendant argued that the governments
delay in bringing the superseding indictment until after he  pled
guilty  to the original indictment offend[ed] the policy  against
successive  prosecutions for the same transaction.  Id.  at  928.
The  Second  Circuit rejected this argument,  concluding  that  a
criminal  defendant was barred from employing the double jeopardy
clause as a sword:
          
               [T]he Supreme Court has made clear  that
          a  criminal defendant is not entitled to  use
          the  Double Jeopardy Clause as a sword.  Ohio
          v.  Johnson,  467 U.S. 493,  502,  104  S.Ct.
          2536,  2542, 81 L.Ed.2d 425 (1984); see  also
          Jeffers v. United States, 432 U.S. 137,  152-
          54,  97  S.Ct. 2207, 2217-18, 53 L.Ed.2d  168
          (1977).
          
     In Jeffers, the [Supreme] Court rejected
a  defendants claim of double jeopardy  based
upon  a  guilty verdict on a lesser  included
offense in the first of two successive trials
because  the second trial resulted  from  the
defendants insistence that there be  separate
rather than consolidated trials.  432 U.S. at
152-54,  97 S.Ct. at 2217-18.  Similarly,  in
Johnson,  the Court held that where  a  trial
court  accepts  a defendants plea  to  lesser
included   offenses  over  the   prosecutions
objection,  double jeopardy does not  prevent
the government from prosecuting the defendant
on the remaining, greater offenses.  467 U.S.
at 501-02, 104 S.Ct. at 2542-43.

     It  is  true  that in both  Johnson  and
Jeffers    unlike  the  present   case    the
prosecution  initially combined its  charges,
in  one  indictment  in  Johnson  or  in  two
indictments  handed down on the same  day  in
Jeffers.    But,  Quinones  was   nonetheless
trying to use the Double Jeopardy Clause as a
sword by insisting on a right to plead guilty
to  the  conspiracy and possession counts  in
the   face   of   government  objection   and
government  notice of its  intent  to  indict
appellant  on  the  gun count.   By  pleading
guilty  to the original indictment, appellant
thereby hoped to head off prosecution on  the
gun  count.  The government was not insisting
on two chances to go after appellant; rather,
appellant   himself  precipitated   the   two
proceedings  by  the  strategy  of   suddenly
tendering  his  plea  to the  conspiracy  and
possession   counts.    ...    Under    these
circumstances, we do not believe that  double
jeopardy   principles  bar  the   superseding
indictment.

Quinones, 906 F.2d at 928.
          These same two factors characterize
the  other  cases cited in LaFave.   Although
the  courts in these other cases do not  rely
on  precisely the same reasoning as Quinones,
they  all  conclude that a defendant  is  not
entitled to use the double jeopardy clause as
a  procedural  weapon against the  government
when   (1)  the  defendant  knows  that   the
government  intends to pursue  other  related
charges, and (2) the defendant pleads  guilty
to  the  lesser charges over the  governments
objection    or   without   the   governments
knowledge.   All  of  these  courts  conclude
that,  in these circumstances, the defendants
guilty  plea  can not be used as  a  tactical
maneuver  to  deny the [government]  ...  one
full  and  fair opportunity to present  [its]
evidence  to an impartial jury.    People  v.
Jurado,  6  Cal.Rptr.2d 242, 252  (Cal.  App.
1992),  quoting  Arizona v.  Washington,  434
U.S.  497, 505; 98 S.Ct. 824, 830; 54 L.Ed.2d
717 (1978).
          Kameroffs case shares the same  two
factors  that  were present in  Quinones  and
these  other cases:  Kameroff knew  that  the
government intended to pursue a more  serious
charge,   and  the  government  objected   to
Kameroffs attempt to plead guilty to the less
serious  charges that were currently pending.
I  therefore  conclude  that  the  result  in
Kameroffs  case  should be the  same  as  the
result  reached  in Quinones  and  the  other
cases  cited in LaFave.  Even if the district
court  should have allowed Kameroff to  plead
guilty  to  the  pending misdemeanor  assault
charges, Kameroff would not have the right to
use  his  guilty  pleas as a double  jeopardy
sword to cut off the States ability to pursue
the felony sexual assault charge.

_______________________________
     1 See Criminal Rule 5(e).

     2 93 P.3d 471 (Alaska App. 2004).

3 93 P.3d 471 (Alaska App. 2004).

     4 Id. at 471.

     5 Id. at 471-72.

     6 Id. at 472.

     7 Id.

     8 Id.

     9 467 U.S. 493, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984).

     10   Johnson, 467 U.S. at 502, 104 S. Ct. at 2542-43.

     11   Johnson, 467 U.S. at 502, 104 S. Ct. at 2542, quoted in
Ridlington v. State, 93 P.3d at 473.

     12   Johnson, 467 U.S. at 501-02, 104 S. Ct. at 2542.

     13   Ridlington, 93 P.3d at 473.

     14   906 F.2d 924 (2nd Cir. 1990).

     15   Id. at 928.

     16   Id. at 926, 928.

     17   Id. at 926.

     18   Id. at 928.

     19   Id.

     20    5 Wayne R. LaFave,  Jerold H. Israel, & Nancy J. King,
Criminal Procedure  25.1 at 326 (2d ed. Supp. 2007) (emphasis  in
original).

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