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Charles v. State (10/19/2012) ap-2379

Charles v. State (10/19/2012) ap-2379

                                             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 



BYRON CHARLES,                                             Court of Appeals No. A-9623 

                                                          Trial Court No. 1KE-05-765 Cr 

                               Appellant,                   Supreme Court No. S-12944 



                       v. 

                                                        Response to the Supreme Court's 

STATE OF ALASKA,                                             Order of January 7, 2009 



                               Appellee.            [Opinion No. 2379      -    October 19, 2012] 



               Appearances:      Tracey Wollenberg, Assistant Public Defender, 

               and    Quinlan   Steiner,  Public   Defender,   Anchorage,     for  the 

               Petitioner.    Timothy W.   Terrell,   Assistant   Attorney General, 

               Office of Special Prosecutions and Appeals, Anchorage, and 

               John J. Burns, Attorney General, Juneau, for the Respondent. 



               Before:     Coats,   Chief   Judge,   and   Mannheimer   and   Bolger, 

               Judges. 



               PER CURIAM.
 

               COATS, Chief Judge, concurring.
 



               In a petition for hearing currently pending before the Alaska Supreme 



Court, Byron Charles challenges his conviction for failing to register as a sex offender 



as required by Alaska's sex offender registration act, AS 12.63. 


----------------------- Page 2-----------------------

              (This Court affirmed Charles's conviction on direct appeal.  See Charles 



v. State, Alaska App. Memorandum Opinion No. 5277 (Nov. 28, 2007); 2007 WL 



4227335.) 



              After Charles filed his petition for hearing, the supreme court issued its 



decision in Doe v. State, 189 P.3d 999 (Alaska 2008).  In Doe, the supreme court held 



that the requirements of the sex offender registration act constitute "punishment" for 



purposes of the ex post facto clause of the Alaska Constitution (Article I, Section 15), and 



therefore the sex offender registration act can not lawfully be applied to defendants 



whose offenses predate the effective date of the act (August 10, 1994).  Id.  1018-19. 



              Charles committed his underlying sex offense in the 1980s, before the 

enactment of the sex offender registration act. 1   The supreme court now confronts the 



question of whether Charles is entitled to claim the benefit of the decision in Doe . 



              In an order dated January 7, 2009, the supreme court directed us to consider 



certain questions relating to whether Charles can claim the benefit of Doe . 



              First, the supreme court asks us to address the issue of whether Charles has 



waived any ex post facto challenge to the sex offender registration act - and, if so, 



whether (as a legal matter) ex post facto challenges to a statute are ever waivable. 



              Second, the supreme court asks us to give our opinion as to whether Alaska 



should modify the current rule governing the retroactivity of court decisions - the rule 



announced in Judd v. State, 482 P.2d 273 (Alaska 1971) - by adopting the federal 



principle of retroactivity announced by the United States Supreme Court in Griffith v. 



Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987):   the principle that new 



    1  See Charles v. State, Alaska App. Memorandum Opinion No. 1600 (April 27, 1988), 



1988 WL 1511427, where this Court affirmed (on direct appeal) Charles's conviction for 

second-degree sexual abuse of a minor. 



                                            - 2 -                                        2379 


----------------------- Page 3-----------------------

constitutional rulings should always be applied to all defendants whose convictions are 

not yet final when the ruling is announced. 2 



               Finally, the supreme court asks for our opinion as to whether Charles's 



conviction for failure to register as a sex offender should be set aside under the Griffith 



principle of retroactivity. 



               Because the supreme court has directed us to consider these questions but 



has not entered a final order with respect to Charles's petition for hearing, we do not 



interpret the supreme court's order as giving this Court jurisdiction to independently 



decide these issues. Rather, we believe that the supreme court has merely interrupted its 



own consideration of Charles's case to seek our input and recommendations on these 



issues. 



               Given the importance of these legal issues, not only for Charles's case but 



for future cases as well, we asked the parties to file supplemental briefs on the questions 



posed by the supreme court, and we thank the parties for their thoughtful input. 



               Because the supreme court has not asked us to decide these issues, but 



rather to offer our analysis and advice, we have not written this response the way we 



would normally craft a judicial opinion.   Rather, our response is more in the nature of a 



memorandum:   we discuss the existing law, we discuss how that law might apply to the 



issues potentially raised in Charles's case, and we discuss why the supreme court might 



not need to resolve all of these legal issues in Charles's case. 



    2  For purposes of this discussion, a criminal conviction is "final" if there is no further 



possibility of direct appellate review (including discretionary review) of the conviction.  See 

Beard v. Banks, 542 U.S. 406, 411; 124 S.Ct. 2504, 2510; 159 L.Ed.2d 494 (2004); Caspari 

v. Bohlen, 510 U.S. 383, 390; 114 S.Ct. 948, 953; 127 L.Ed.2d 236 (1994); Smart v. State, 

146 P.3d 15, 17 (Alaska App. 2006), reversed on other grounds in State v. Smart, 202 P.3d 

1130 (Alaska 2009). 



                                             - 3 -                                         2379
 


----------------------- Page 4-----------------------

       Has Charles waived or forfeited any ex post facto claim? 



              The question of whether a person has "waived" a constitutional right is 



somewhat ambiguous, because courts speak of waiver in two different contexts.   On the 



one hand, a person can "waive" a right by knowingly choosing to relinquish that right, 



or by knowingly choosing not to exercise that right. On the other hand, courts often use 



the term "waiver" when they refer to a person'sforfeiture of a right by failing to exercise 



or claim the benefit of that right - even when the person has made no conscious 



decision to forego the right, and has simply neglected to assert it. 



              As the State concedes, there is nothing in the record of this case to suggest 



that Charles has ever knowingly chosen to forego his rights under the ex post facto 



clause.   Thus, there is no need to address the question of whether ex post facto rights are 



"waivable" in this sense - i.e.,   no need   to decide whether   the law might allow a 



defendant to knowingly choose to forego the protections of the ex post facto clause. 



              We note, however, that there are potentially instances where it might be to 



a defendant's advantage to waive ex post facto rights.   For instance, in the present case, 



Charles was charged with "failure to register" as a sex offender even though, as a factual 



matter, he did register.    The problem was that he supplied a false address when he 



registered.  See Charles v. State, 2007 WL 4227335 at *1. 



              The State charged Charles with a class A misdemeanor under AS 11.56.- 



840(a)(2).    But under these circumstances, the State might conceivably have charged 



Charles with a more serious crime.        Under AS 12.63.010(e), the registration forms 



required by Alaska's sex offender registration act "must be sworn to by the offender ... 



and [must] contain an admonition that a false statement shall subject the offender ... to 



prosecution for perjury." 



                                            - 4 -                                       2379
 


----------------------- Page 5-----------------------

               Perjury is a class B felony. 3   We can imagine that a defendant in Charles's 



position might wish to forego their ex post facto defense to the misdemeanor charge of 



"failure to register" in exchange for the government's promise not to pursue a perjury 



prosecution. For this reason, we believe it would be inadvisable to rule that a defendant 



can never voluntarily relinquish the protections afforded by the ex post facto clause. 



               (We note that this Court has already ruled that a defendant may knowingly 

relinquish the protections of the double jeopardy clause. 4) 



               This leaves the issue of whether Charles may have forfeited his potential 



ex post facto defense by failing to assert it until now. 



               Several federal and state courts have ruled that ex post facto protections can 

be forfeited by failing to assert them. 5      Texas, however, has ruled that ex post facto 



protections can be neither waived nor forfeited, because the ex post facto clause is "a 

categorical prohibition directed by the people against their government". 6            The Texas 



Court of Criminal Appeals reasoned that defendants should not be permitted to waive the 



protections of the ex post facto clause "any more than they may consent to be imprisoned 

for conduct which is not a crime." 7 



    3   AS 11.56.200(c). 



    4   See Dutton v. State, 970 P.2d 925, 931-32 (Alaska App. 1999). 



    5   See United States v. Diaz-Diaz, 327 F.3d 410, 412 (5th Cir. 2003); State v. Simnick, 



779 N.W.2d 335, 339 (Neb. 2010); State v. LaFreniere, 180 P.3d 1161, 1163-64 (Mont. 

2008); Mayers v. State , 42 So.3d 33, 44 (Miss. App. 2010); Williams v. State, 507 So.2d 

1171, 1171 (Fla. App. 1987).  But see United States v. Groves, 369 F.3d 1178, 1182 (10th 

Cir. 2004) (holding that the defendant was entitled to challenge his sentence on ex post facto 

grounds, even though he pleaded guilty, because he did not agree to a specific sentence, and 

because he reserved the right to appeal any "illegal sentence" that might be imposed). 



    6   Leppert v. State , 908 S.W.2d 217, 220 (Tex. Crim. App. 1995). 



    7   Ibid. 



                                               - 5 -                                          2379
 


----------------------- Page 6-----------------------

               However,even in jurisdictions where ex post facto protections areforfeited 



by inaction, the fact that a defendant has forfeited an ex post facto claim by failing to 



raise the claim in the trial court does not mean that the defendant is completely barred 



from seeking relief.   Appellate courts that apply a rule of forfeiture to an unpreserved ex 



post facto claim generally still allow a defendant to litigate the claim on appeal under the 

rubric of "plain error" or "manifest injustice". 8 



               We ourselves have repeatedly applied the plain error rule to claims of 



constitutional error that were not properly preserved in the trial court proceedings - 



most recently, in a series of sentencing cases arising from the United States Supreme 



Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 



403 (2004). 



               In Blakely, the Supreme Court held that defendants are entitled to a jury 



trial, and entitled to demand proof beyond a reasonable doubt, on any issue of fact which, 



if found in the government's favor, would increase the maximum sentence for their 



crime.   Because Blakely announced a new rule of federal constitutional law, Griffith v. 



Kentucky governed the retroactive application of Blakely. In other words, any defendant 



whose conviction was not yet final (i.e., was still on direct review) at the time Blakely 



was decided could retroactively claim the benefit of Blakely. 



               But even though any defendant whose appeal was still pending   could 



retroactively claim the benefit of Blakely, this Court repeatedly held that defendants who 



failed to preserve a Blakely claim in the trial court had to demonstrate not only that 



    8   See United States v. Diaz-Diaz, 327 F.3d at 412; State v. Simnick, 779 N.W.2d at 339- 



340; Mayers v. State , 42 So.2d at 44-45; United States v. Jones, 899 F.2d 1097, 1103 (11th 

Cir. 1990) (holding that failure to raise an ex post facto objection will preclude consideration 

of the point on appeal absent manifest injustice). 



                                              - 6 -                                          2379 


----------------------- Page 7-----------------------

Blakely was violated in their case, but also that the Blakely violation amounted to plain 



        9 

error. 



                This use of the phrase "plain error" actually refers to a concept that is 



somewhat different from what courts normally mean when they say "plain error".                           A 



claim of plain error typically includes an assertion that the lower court overlooked, or 

failed to remedy, an error that would have been obvious to any competent judge. 10                   But 



when a claim of error rests on the retroactive application of a new constitutional rule, no 



one can say that the trial court judge failed to perceive an obvious error - because, at 



the time of the lower court proceedings, the law was different. 



                In such cases, the notion of "plain error" is retrospective.   The question is 



whether, in light of the new constitutional rule, we can now see that there was an obvious 



flaw in the lower court proceedings, and that failure to correct this flaw would perpetuate 



manifest injustice. 



                Thus, for instance, this Court repeatedly held that even though a defendant 



was wrongfully deprived of a jury trial on an aggravating factor that increased the 



permissible maximum sentence for the defendant's crime, this Blakely violation did not 



constitute plain error when the evidence concerning the existence of the aggravator was 



not subject to reasonable dispute - in other words, when there was no reasonable 



    9   See Twogood v. State, 223 P.3d 641, 651 (Alaska App. 2010); Malutin v. State , 198 



P.3d 1177, 1184 (Alaska App. 2009); Lockuk v. State , 153 P.3d 1012, 1017-18 (Alaska App. 

2007); McDole v. State , 121 P.3d 166, 170 (Alaska App. 2005); Haag v. State, 117 P.3d 775, 

783 (Alaska App. 2005). 



    10  See, e.g., Adams v. State , 261 P.3d 758, 773 (Alaska 2011). 



                                                  - 7 -                                               2379 


----------------------- Page 8-----------------------

possibility that a jury would have found in the defendant's favor even if the issue had 

been submitted to a jury. 11 



                In the present case, even though the State argues that Charles has forfeited 



his ex post facto claim by failing to raise an ex post facto argument in the trial court, the 



State acknowledges that Charles may still pursue his ex post facto claim under the rubric 



of plain error - and that Charles would be entitled to relief if he can show that there was 



a "clear" violation "of [his] substantial rights" that prejudiced "the [fundamental] justice 



or integrity of the proceedings". 



                It is undisputed that Charles committed his underlying sex offense before 



the   legislature   enacted   Alaska's   sex   offender   registration   law.      Thus,   even   though 



Charles failed to raise an ex post facto objection in the trial court, he would nevertheless 



be entitled to relief from his failure-to-register conviction if (1) the supreme court's 



decision in Doe applies retroactively to Charles, and if (2) the prosecution of Charles for 



failure to register as a sex offender, in violation of the ex post facto clause, amounts to 



"plain error" - that is, if the ex post facto violation was "so prejudicial to the fairness 

of the proceedings that ... failure to correct it would perpetuate manifest injustice." 12 



        The   State's   arguments   that   there   is   no   plain   error   in   Charles's   case 

        because (1) Doe was wrongly decided, or (2) Doe is not binding precedent 



                Before proceeding further, we must address two arguments that the State 



raises.    Both   of   these   arguments   are   aimed   at   showing   that,   regardless   of   the   law 



pertaining to retroactivity, Charles is not entitled to relief. 



    11  See, e.g., Active v. State , 153 P.3d 355, 367 (Alaska App. 2007); Milligrock v. State , 



118 P.3d 11, 17 (Alaska App. 2005). 



    12  Adams v. State , 261 P.3d 758, 764 (Alaska 2011). 



                                                  - 8 -                                               2379 


----------------------- Page 9-----------------------

                First, the State argues that Doe was wrongly decided. 



                 Second, the State argues that, even if Doe was correctly decided, it is not 



"precedent" - that is, it does not establish a rule of decision for other cases - because 



only three members of the supreme court participated in Doe  (a bare quorum under 



Appellate Rule 105(a)), and because Doe was decided by a two-to-one vote. 



                The   State   relies   on   Appellate   Rule   106(b),   which   was   enacted   by   the 



supreme court in the summer of 2011, three years after the court issued its decision in 

Doe . 13  Under Rule 106(b), a two-to-one decision of the supreme court applies only to 



the resolution of that particular appeal, "and [does] not have precedential effect". 



                The State argues that Appellate Rule 106(b) has retroactive effect - that 



the enactment of this rule stripped Doe of its status as binding precedent.   Accordingly, 



the State argues that, regardless of the law governing the retroactivity of court decisions, 



neither Charles nor any other defendant is entitled to relief based on Doe . 



                For two reasons, we decline to address the State's arguments. 



                First, these issues fall outside the scope of the questions presented to us in 



the   supreme   court's   order   of   January   7,   2009.    Indeed,   with   regard   to   the   State's 



argument based on Appellate Rule 106(b), we note that the supreme court's directive to 



this Court was issued two and a half years before the supreme court enacted Appellate 



Rule 106(b). 



                 Second, because Charles's case is still pending before the supreme court, 



and because the supreme court is about to resume active consideration of Charles's case, 



it seems to us that there would be little value in having this Court offer an opinion on the 



underlying merits of the decision in Doe, or in having this Court try to assess how the 



supreme court would interpret Appellate Rule 106(b) as it relates to Doe . 



    13  See Supreme Court Order No. 1759 (both dated and effective July 21, 2011). 



                                                  - 9 -                                               2379 


----------------------- Page 10-----------------------

                 (CompareAS22.05.015(b), which authorizes this Courttoask thesupreme 



court   to   assume   jurisdiction   of   a   case   that   would   normally   be   within   this   Court's 



jurisdiction if "the case involves ... an issue of substantial public interest that should be 



determined by the supreme court.") 



                 We now return to the issues raised in the supreme court's order. 



         Should Alaska adopt the retroactivity rule set forth in Griffith v. Kentucky? 



                 The supreme court has asked for our opinion as to whether Alaska should 



modify   our   current   rule   governing   the   retroactivity   of   court   decisions   -   the   rule 



announced in Judd v. State, 482 P.2d 273 (Alaska 1971) - by adopting the federal 



principle of retroactivity announced by the United States Supreme Court in Griffith v. 



Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). 



                 Under   the   current  Judd  rule,   the   issue   of   retroactivity   is   assessed   by 



weighing three factors:  (1) the purpose to be served by the new rule; (2) the extent to 



which law enforcement authorities have relied on the old rule; and (3) the degree to 



which   retroactive   application   of   the   new   rule   would   disrupt   the   administration   of 

justice. 14  Under Griffith, on the other hand, any new constitutional rule must be applied 



to all defendants whose convictions are still on direct review at the time the rule was 

announced. 15 



                 Charles's supplemental brief to this Court contains a lengthy discussion of 



the problems and potential injustices created by the Judd rule, and the benefits of the 



     14 Judd v. State , 482 P.2d 273, 278 (Alaska 1971) (adopting the retroactivity standard 



formerly employed by the federal courts under Linkletter v. Walker , 381 U.S. 618, 85 S.Ct. 

 1731, 14 L.Ed.2d 601 (1965)). 



     15  Griffith, 479 U.S. at 328, 107 S.Ct. at 716. 



                                                  -  10 -                                               2379 


----------------------- Page 11-----------------------

Griffith rule.    The State agrees that "there may be reasons for rejecting the ... Judd 



standard." 



               However, as we explain in the next section of this response, we conclude 



that our supreme court's decision in Doe must be applied retroactively to Charles under 



either Alaska's current Judd rule of retroactivity or the Griffith rule of retroactivity. We 



therefore conclude that there is no immediate need for the supreme court to decide 



whether to adopt the Griffith principle of retroactivity. 



               Although all members of this Court agree that thereis no need to decide this 



question of retroactivity law, Judge Coats has written a concurring opinion in which he 



discusses the perceived advantages of the Judd rule over the  Griffith rule.            For this 



reason, we (the other two members of this Court) believe that it is worthwhile to mention 



the policies that led the United States Supreme Court to adopt the Griffith rule. 



               Initially, the federal test for retroactivity was the same as our Judd test - 



because the Judd rule of retroactivity was taken directly from the rule formulated by the 



United States Supreme Court in Linkletter v. Walker, 381 U.S. 618, 636; 85 S.Ct. 1731, 



 1741; 14 L.Ed.2d 601 (1965), and reiterated two years later inStovall v. Denno, 388 U.S. 



293, 297; 87 S.Ct. 1967, 1970; 18 L.Ed.2d 1199 (1967).   As we have explained, under 



this test, the retroactivity of a court decision is assessed by weighing the purpose of the 



new rule, the degree to which people reasonably relied on the old rule, and the degree 



to which retroactive application of the new rule would disrupt the administration of 



justice. 



               Originally, the Linkletter / Stovall rule of retroactivity applied equally to 



defendants whose convictions were still being challenged on direct review when the new 



                                             -  11 -                                       2379
 


----------------------- Page 12-----------------------

rule was announced, and to defendants whose convictions had already become final. 16 



But in United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), 



the Supreme Court reconsidered this unified approach to retroactivity and declared that 



different policies should govern the assessment of whether a new rule should apply 



retroactively to defendants whose convictions were not yet final when the decision was 



announced.  Id., 457 U.S. at 548, 102 S.Ct. at 2586. 



              In particular, the Supreme Court adopted the view that, after a new rule has 



been announced in one defendant's case, that same rule must be applied to any "similarly 



situated defendant" whose conviction is not yet final unless there is "a principled reason 

for acting differently."  Id., 457 U.S. at 561-62, 102 S.Ct. at 2593. 17 



              In its Johnson decision, the Supreme Court allowed one major exception 



to this principle that new rules should be applied retroactively to all defendants whose 



cases were currently pending on direct review at the time the rule was announced:   the 



Supreme Court declared that a new rule would not be applied retroactively if the new 



rule constituted a "clear break" from the Court's past precedents.        Id., 457 U.S.   at 



549-550, 102 S.Ct. at 2586-2587. 



              But five years later, in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 



93 L.Ed.2d 649 (1987), the Supreme Court abandoned this "clear break" exception and 



declared that all new rules would apply retroactively to defendants whose convictions 



were not yet final when the new rule was announced. 



              In Griffith, the Supreme Court concluded that it was fundamentally unfair 



to "fish[] one case from the stream of appellate review" and employ that case "as a 



    16 See Johnson v. New Jersey, 384 U.S. 719, 732; 86 S.Ct. 1772, 1780; 16 L.Ed.2d 882 



(1966); Stovall v. Denno, 388 U.S. at 300, 87 S.Ct. at 1971. 



    17 Quoting Justice Harlan's dissenting opinion in Desist v. United States, 394 U.S. 244, 



258; 89 S.Ct. 1030, 1038; 22 L.Ed.2d 248 (1969). 



                                           -  12 -                                      2379 


----------------------- Page 13-----------------------

vehicle for announcing new constitutional standards", but then refuse to apply the new 



standards to all the other defendants who were waiting for their appeals to be heard. Id., 



479 U.S. at 323, 107 S.Ct. at 713.   The Court concluded that a refusal to apply the new 



rule to all defendants whose convictions were not yet final would create an unacceptable 



inequity   -   because   one   defendant   (the   defendant   whose   case   was   chosen   by   the 



appellate   court   as   a   vehicle   for   announcing   the   new   rule)   would   be   the   "chance 



beneficiary" of the new rule, while all other similarly situated defendants would see their 



same claims denied.   479 U.S. at 323 & 327; 107 S.Ct. at 713 & 715. 



                The Supreme Court acknowledged that, when a new rule constitutes a 



"clear    break"    from   earlier  precedent,     the   second   and   third  Linkletter  factors   - 



reasonable reliance on the old rule, and the probable adverse effect on the administration 



of justice - were likely to weigh heavily against retroactive application.  Griffith, 479 



U.S. at 326-27, 107 S.Ct. at 715.   Nevertheless, the Court concluded that, even in such 



instances, it was unacceptably unfair to fail to apply a new rule retroactively to all 



defendants whose cases were still on direct appeal. Id., 479 U.S. at 327-28, 107 S.Ct. at 



715-16. 



                We acknowledge that almost any rule of limited retroactivity carries the 



seeds of arbitrariness and unfairness. For instance, Griffith declares that there is one rule 



of retroactivity for defendants who are still seeking appellate review of their convictions 



when a new rule is announced, and another rule of retroactivity for defendants whose 



convictions are already final when the new rule is announced.                    This means that an 



appellate court is required to apply the new rule retroactively to all defendants who are 



still waiting for the decision of their petition for hearing (in our state court system) or 



their petition for certiorari (in the federal system), but to deny retroactive application to 



defendants whose petitions for discretionary review were denied just a few days earlier. 



                                                 -  13 -                                           2379
 


----------------------- Page 14-----------------------

                Moreover, in the case of new rules that are a "clear break" from earlier 



precedent, the Griffith rule means that some defendants will be denied relief because 



(1) they raised the same claim on direct appeal but lost, and then (2) they failed to pursue 



a petition for discretionary review after their attorney advised them - competently - 



that they had little or no chance of prevailing on such a claim. 



                As we explained earlier, we conclude that Charles's case does not require 



our supreme court to decide whether to adopt the Griffith rule of retroactivity - because 



Charles is entitled to retroactive application of the Doe decision regardless of whether 



our supreme court applies the Griffith rule or the current Judd rule.   We have presented 



this extensive examination of Griffith, not in an effort to convince our supreme court to 



adopt the Griffith rule of retroactivity, but rather to elucidate the scope of the Griffithrule 



and the policies behind it, so as to round out the thoughtful views expressed by Judge 



Coats in his concurrence. 



                We additionally note - for purposes of clarification - that even if Alaska 



adopted the Griffith rule, this would not necessarily entail a complete abrogation of 



Alaska's current Judd rule of retroactivity. 



                Under Griffith, anewruleapplies retroactivelytodefendantswhoseconvic- 



tions are not yet final at the time the new rule is announced. But Griffith does not answer 



the question of whether a new rule should be applied retroactively to defendants whose 



convictions are already final when the new rule is announced. 



                Under     federal   law,   this  latter  situation   is  governed    by   the  rule   of 



retroactivity announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 



334 (1989).   Under Teague, a new rule will be applied completely retroactively (that is, 



even to defendants whose convictions are already final) only if the new rule is a rule of 



substantive law (i.e., a rule that limits the authority of the government to prosecute or 



punish   certain   conduct),   or   if   the   new   rule   is   a   "watershed" procedural  rule   that 



                                                -  14 -                                           2379
 


----------------------- Page 15-----------------------

implicates   the   fundamental   fairness   of   the   criminal   proceeding   or   the   fundamental 



accuracy of the fact-finding process. 



                 The scope of the Teague retroactivity rule is explained in Smart v. State 



(Smart I), 146 P.3d 15 (Alaska App. 2006): 



                         Under ... Teague, a [judicial] decision creates a new 

                 rule "when it breaks new ground or imposes a new obligation 

                 on the States or the Federal Government." [Teague, 489 U.S. 

                 at   301,   109   S.Ct.   at   1070.]  When   the   [judicial]   opinion 

                 creates   a   new   rule,   the   rule   applies   to   previously   final 

                judgments only in limited circumstances.   For example, new 

                 substantive rules which decriminalize a class of conduct or 

                 prohibit     capital   punishment       for   a  class   of   defendants 

                 generally     apply    [completely]      retroactively.      These    new 

                 substantive rules apply retroactively because there is a risk 

                 that   the   defendant   was   convicted   for   an   act   that   is   not 

                 criminal or [that the defendant] faces a punishment that is not 

                 allowed by law. However, new procedural rules generally do 

                 not apply retroactively.        New procedural rules merely raise 

                 the possibility that someone convicted with the use of the 

                 invalidated procedure might have been acquitted otherwise. 

                 Because of this more speculative connection to innocence, 

                 [the   courts]   give   retroactive   effect   to   only   a   small   set   of 

                 watershed      rules    of  criminal     procedure     implicating      the 

                 fundamental        fairness     and    accuracy      of    the   criminal 

                 proceeding. 



Smart I, 146 P.3d at 40 (concurring opinion ofJudgeStewart) (omitting several footnotes 



that   cite,   or   quote   from,   the   United   States   Supreme   Court's   decision   in  Schriro   v. 



Summerlin, 542 U.S. 348, 351-52; 124 S.Ct. 2519, 2522-23; 159 L.Ed.2d 442 (2004)). 



                 But the states are not required to follow the Teague rule of retroactivity, so 



long as their rules of retroactivity are at least as protective of defendants' federal rights 



                                                  -  15 -                                              2379
 


----------------------- Page 16-----------------------

as   the  Teague  rule. 18     And   Alaska   law   is   currently   unsettled   as   to   what   rule   of 



retroactivity governs situations where a defendant's conviction is already final when a 



new rule is announced. 



                The Judd rule is the Alaska Supreme Court's last pronouncement on this 



question, and this is the rule that the supreme court applied in State v. Smart (Smart II), 



202 P.3d 1130, 1138-39 (Alaska 2009), its most recent decision addressing the question 



of retroactivity. 



                However, AS 12.72.010(7) - a portion of the statute governing the scope 



of post-conviction relief in Alaska - contains a different set of rules that govern the 



retroactivity of judicial decisions when these decisions are invoked for the purpose of 



collaterally   attacking a criminal conviction that is already   final.              In prior   appellate 



litigation, the State has taken the position that AS 12.72.010(7) was intended to codify 



the  Teague rule   of   retroactivity,   and   thus   the  Teague test   is   the   governing   rule   of 

retroactivity for post-conviction relief litigation in Alaska. 19 



                As this Court noted in Smart I, 146 P.3d at 29, the conflict between the 



Judd rule and the provisions of AS 12.72.010(7) potentially raises a question under the 



doctrine of separation of powers:           specifically, whether the legislature's enactment of 



rules governing the retroactivity of judicial decisions improperly encroaches on a matter 



entrusted to the judicial branch.          However, there is no need to resolve this question, 



because it is moot under the facts of Charles's case - since Charles's conviction is not 



yet final. 



    18  See Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008). 



    19  See Smart v. State (Smart I), 146 P.3d at 29; State v. Smart (Smart II), 202 P.3d at 



1148. 



                                                 -  16 -                                              2379 


----------------------- Page 17-----------------------

                 We do note, however, that the Alaska Supreme Court has declared that the 



Judd rule of retroactivity is at least as protective of defendant's rights as the Teague rule. 



This issue came up in Smart II. 



                 The primary question presented in Smart II was whether the right to jury 



trial announced in Blakely v. Washington should be applied retroactively to defendants 



whose convictions were already final when Blakely was decided.                       Our supreme court 



recognized that, because Blakely announced a new rule of federal law (an expansion of 



the scope of the Sixth Amendment right to jury trial), state courts were obliged to make 

Blakely retroactive at least to the extent guaranteed by the Teague test. 20 



                 But rather than adopting the Teague test as the standard for retroactivity 



under Alaska law, the supreme court adhered to the Judd test.   The supreme court was 



able to do this because the court declared that the Judd rule of retroactivity was at least 



as protective of defendants' rights as the Teague test.  Smart II, 202 P.3d at 1138-39. 



         Why we conclude that Charles is entitled to retroactive application of the 

        Doe decision under the Judd rule of retroactivity as well as the Griffith rule 

        of retroactivity 



                 Under the Griffith rule of retroactivity, constitutional decisions must be 



applied retroactively to all defendants whose convictions are not yet final at the time the 



decision is announced.   Although this Court had already affirmed Charles's conviction 



on direct appeal when the Alaska Supreme Court announced its decision in Doe, Charles 



was still in the process of petitioning the supreme court to review this Court's affirmance 



of his conviction.   Thus, Charles's conviction was not yet final when the supreme court 



    20  Smart   II,   202   P.3d   at   1136:  "[The   United   States   Supreme   Court's   decision   in] 



Danforth [v. Minnesota] allows us to apply either the Teague test ... or a state constitutional 

test[,] so long as the state test is at least as comprehensive as the [Teague] test." 



                                                  -  17 -                                               2379 


----------------------- Page 18-----------------------

issued its decision in Doe. 21  Under the Griffith rule, it is clear that Charles would be 



entitled to retroactive application of the Doe decision. 



              Although the question of retroactivity is more complicated under the Judd 



test, the result is the same.   As we are about to explain, the Doe decision would be given 



full retroactivity under the Teague test (if the Doe decision rested on federal law).   And 



because, in Smart II,   our supreme court declared that the Judd  test was at least as 



protective of defendants' rights as the Teague test, it follows that Doe should receive full 



retroactivity under Judd . 



              To back up a bit:   The Judd test for deciding whether a new rule should be 



applied retroactively involves the weighing of three factors: (1) the purpose to be served 



by the new rule; (2) the extent to which law enforcement authorities have relied on the 



old rule; and (3) the disruptive effect that retroactive application of the new rule would 

have on the administration of justice. 22 



              However, our supreme court has declared that the first Judd factor - the 



purpose to be served by the new rule - will take precedence over the other two factors, 



and will require retroactive application of a new constitutional   rule,   if the primary 



purpose of the new rule is to enhance the truth-finding function of criminal trials, thus 



helping to ensure fair and accurate verdicts.  Rutherford v. State, 486 P.2d 946, 952-53 



(Alaska 1971). 



              The new rule at issue in the present case -the Doe court's pronouncement 



that sex offender registration is a "punishment" for purposes of Alaska's ex post facto 



    21 See Alaska Appellate Rules 507(b) and 512(a)(2).  And see footnote 6 of Griffith v. 



Kentucky, 479 U.S. at 321, 107 S.Ct. at 712. 



    22 Judd v. State , 482 P.2d 273, 278 (Alaska 1971) (adopting the retroactivity standard 



formerly employed by the federal courts under Linkletter v. Walker , 381 U.S. 618, 85 S.Ct. 

1731, 14 L.Ed.2d 601 (1965)). 



                                           -  18 -                                       2379 


----------------------- Page 19-----------------------

clause   -   is   not   a   rule   that   enhances   the   truth-finding   function   of   criminal   trials. 



However, the Doe rule is likewise aimed at protecting defendants fromunjust conviction 



and punishment. 



                Under our tripartite system of government, it is the legislative branch that 

defines crimes and establishes the punishments for those crimes. 23             The Alaska Supreme 



Court has explicitly recognized this principle: 



                         Save only as limited by constitutional safeguards, the 

                legislature may choose any reasonable means to protect the 

                people from the violation of criminal laws.             In general, the 

                comparative gravity of offenses and their classification and 

                resultant punishment is for legislative determination. 



Alex v. State , 484 P.2d 677, 685 (Alaska 1971) (citation omitted). 



                But the ex post facto clause is one of the constitutional safeguards that 



limits the legislature's authority in this area.   With respect to criminal punishments, the 



ex post facto clause strictly forbids the legislature from "impos[ing a] punishment more 



severe   than   the   punishment   [that   was]   assigned   by   law   [to   the   offense]   when   the 



[defendant committed the] act to be punished". Weaver v. Graham, 450 U.S. 24, 30; 101 



S.Ct. 960, 965; 67 L.Ed.2d 17 (1981), quoted with approval in State v. Creekpaum, 753 



P.2d 1139, 1141 (Alaska 1988). 



                As explained in Weaver and in Creekpaum, the constitutional prohibition 



on ex post facto punishments is not premised on an individual defendant's right to a 



lesser punishment.   Rather, the ex post facto clause is a restraint on the authority of the 



legislatureitself: thelegislatureisforbiddenfrom"increas[ing]punishmentbeyond what 



    23  See Malloy v. State, 1 P.3d 1266, 1282 (Alaska App. 2000). 



                                                 -  19 -                                             2379 


----------------------- Page 20-----------------------

was prescribed when the crime was consummated."                 Weaver, 450 U.S. at 30, 101 S.Ct. 



at 965; Creekpaum, 753 P.2d at 1141. 



                Because the Alaska Supreme Court, in Doe, declared that sex offender 



registration is a "punishment" for ex post facto purposes, it necessarily follows that it is 



unjust - in a fundamental, constitutional sense - to impose that punishment on any 



defendant whose offense predates the enactment of the sex offender registration law. 



Accordingly,   this   appears   to   be   the   type   of   situation   where   the   first  Judd factor 



takes precedence over other considerations and demands retroactive application of Doe . 



                Moreover, even if we applied the presumedly more restrictive federal test 

for retroactivity announced in Teague v. Lane, 24           our supreme court's decision in Doe 



would be given complete retroactive effect. 



                The  Teague rule of retroactivity is premised on the principle that if a 



criminal conviction has become final, and if the litigation of that criminal case took place 



in compliance with the law that was in existence at the time, then there should be very 



few circumstances which compel a re-examination of the criminal judgement based on 

new developments in constitutional law. 25          Under Teague, a retroactive attack on a final 



criminal judgement is allowed only if (1) the new constitutional rule is a substantive rule 



that "[puts] certain kinds of primary, private individual conduct beyond the power of [the 



states to regulate through criminal legislation]", or if (2) the new constitutional rule is a 



"watershed" procedural rule that "requires the observance of ... procedures that are 

implicit in the concept of ordered liberty". 26 



    24  489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). 



    25  Smart v. State, 146 P.3d at 20-21. 



    26  Teague, 489 U.S. at 307, 109 S.Ct. at 1073 (quoting Justice Harlan's concurring and 



dissenting opinion in Mackey v. United States , 401 U.S. 667, 692-93; 91 S.Ct. 1171, 1180; 

28 L.Ed.2d 404 (1971)). 



                                                 - 20 -                                            2379
 


----------------------- Page 21-----------------------

                But even under the restrictions of the Teague test, our supreme court's 



decision in Doe qualifies for retroactive application. 



                By holding that sex offender registration is "punishment" for ex post facto 



purposes, our supreme court held that the legislature had no authority to order sex 



offenders to comply  with the registration   requirements   if   their   underlying offenses 



predated the enactment of the law.   This constitutional ruling falls within Teague's first 



prong:   a new constitutional rule that puts certain kinds of conduct beyond the power of 



the legislature to regulate through criminal legislation. 



                The   United   States   Supreme   Court   addressed   this   issue   in  Schriro   v. 



Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004): 



                        New substantive rules generally apply retroactively 

                [under the Teague test].   This includes decisions that narrow 

                the scope of a criminal statute by interpreting its terms, as 

                well   as   constitutional   determinations   that   place   particular 

                conduct or persons covered by the statute beyond the State's 

                power to punish ... .  Such rules apply retroactively because 

                they   necessarily   carry   a   significant   risk   that   a   defendant 

                stands convicted of an act that the law does not make criminal 

                or faces a punishment that the law cannot impose upon him. 



Summerlin, 542 U.S. at 351-52, 124 S.Ct. at 2522-23 (citations, internal quotations, and 



a footnote omitted). 



                See United States v. Dashney, 52 F.3d 298, 299 (10th Cir. 1995) (holding 



that, under  Teague, a defendant could seek retroactive application of a new judicial 



interpretation of a criminal statute that altered the generally accepted elements of the 



crime); United States v. Shelton, 848 F.2d 1485, 1488-1490 (10th Cir. 1988) (en banc) 



(holding that, under Teague, a defendant was entitled to retroactive application of a 



substantive (but non-constitutional) decision concerning the reach of a federal statute); 



                                                 - 21 -                                             2379
 


----------------------- Page 22-----------------------

Ingber v. Enzor, 841 F.2d 450, 453-54 (2nd Cir. 1988) (same); Magnuson v. United 



States, 861 F.2d 166, 167 (7th Cir. 1988) (same); Webster v. Woodford, 369 F.3d 1062, 



1068-69 (9th Cir. 2004) (holding that, under Teague, a defendant could pursue a due 



process / ex post facto challenge to a new and expanded judicial interpretation of a 



sentencing statute). 



               The fact that our supreme court's decision in Doe qualifies for retroactive 



application under the Teague test means that Doe qualifies for retroactive application 



under the Judd test - because, in Smart II, 202 P.3d at 1138-39, our supreme court 



declared that the Judd  rule of retroactivity was to be construed as being at least as 



protective of defendants' rights as the Teague test. 



               Thus, even under Alaska's current rule of retroactivity (the Judd  test), 



Charles is entitled to retroactive application of Doe.         Accordingly, even though the 



Griffith rule of retroactivity has much to recommend it, we conclude that the resolution 



of Charles's case does not require the supreme court to decide whether to adopt the 



Griffith rule. 



       If the  ex post facto clause bars retrospective application of a criminal 

       statuteto a defendant, does convicting a defendant for violating thatstatute 

        constitute "plain error"? 



               Even though we conclude that Charles is entitled to retroactive application 



of the Doe decision, the fact remains that Charles did not raise an ex post facto argument 



during his trial court proceedings, so he is not entitled to relief unless he demonstrates 



plain error.    That is, Charles must show that the ex post facto error in his case was 



                                             - 22 -                                        2379
 


----------------------- Page 23-----------------------

"so prejudicial to the fairness of the proceedings that ... failure to correct it would 

perpetuate manifest injustice." 27 



                ItisundisputedthatCharles'sunderlying sex offensewas committed before 



the sex offender registration act took effect. Thus, Charles stands convicted of violating 



a criminal statute which, under our state constitution, can not apply to him.                  This is a 



manifest injustice. 



                The   record   does   not   suggest   that   Charles   had   any   tactical   reason   for 



deliberately withholding an ex post facto challenge to his prosecution and conviction. 



Accordingly, we conclude that Charles has shown plain error. 



                See Mayers v. State, 42 So.3d 33, 44-45 (Miss. App. 2010) (holding that 



a conviction in violation of the ex post facto clause is plain error); State v. Clemons, 



unpublished,   2011   WL   861847,   *4   (Ohio   App.   2011)   (same);  People   v.   Barnes, 



unpublished, 2010 WL 4970759, *4 (Mich. App. 2010) (holding that imposition of 



increased punishment in violation of the ex post facto clause is plain error); State v. 



Simnick, 779 N.W.2d 335, 342 (Neb. 2010) (same); State v. Houston, unpublished, 2009 



WL 130189, *8 (Tenn. Crim. App. 2009) (same). 



        Conclusion 



                For thereasonsexplained here, werecommend that the supreme court grant 



relief to Charles on the basis of the court's decision in Doe .   The Clerk of the Appellate 



Courts is directed to transmit this response to the supreme court. 



    27  Adams v. State , 261 P.3d 758, 764 (Alaska 2011). 



                                                - 23 -                                              2379 


----------------------- Page 24-----------------------

COATS, Chief Judge concurring. 



               I agree with my colleagues that it is not necessary for the Alaska Supreme 



Court to decide in this case whether to adopt the rule of retroactivity announced by the 

United States Supreme Court in Griffith v. Kentucky. 1       For the reasons explained in the 



majority opinion, our Supreme Court's decision in Doe v. State 2         applies retroactively 



under any of the three potential rules of retroactivity:   the Griffith rule, the Judd rule, or 



the Teague rule. 



               The very fact that there is no present need to decide whether to adopt the 



Griffith rule is a strong reason not to decide this issue.   In my view, the parties to a case 



do a better job of briefing, and an appellate court does a better job of deciding, when the 



issue to be decided is important to the proper resolution of the case.   Easy cases, as well 



as hard cases, create the risk of making bad law. 



               Moreover, there are reasons to favor our current rule of retroactivity - the 



Judd rule - over the rule announced in Griffith.   One strong argument in favor of Judd 



is that Judd allows a court to weigh various factors in deciding the extent to apply a new 



rule retroactively.   And there may be cases in which the retroactive application of a new 



rule could have a negative impact on law enforcement and the administration of justice. 

For instance, in State v. Glass, 3  the Alaska Supreme Court, applying the Judd test, held 



that the new rule requiring the police to obtain a warrant before monitoring or recording 



a conversation would apply prospectively - only to those cases where the monitoring 



or recording took placeafter theSupremeCourtannounced thenewwarrant requirement. 



    1   479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). 



    2   189 P.3d 999 (Alaska 2008). 



    3   596 P.2d 10 (Alaska 1979). 



                                             - 24 -                                         2379 


----------------------- Page 25-----------------------

                Thereis something to be said for retaining the flexibility of the retroactivity 



rule in Judd, which allows the court to determine retroactivity on a case-by-case basis, 



weighing the impact of a new rule of law.   In Glass, the Supreme Court concluded that 



law enforcement officials had reasonably relied on pre-Glass law, that they could not 



have been expected to foresee the Glass decision, and that their actions "were entirely 

reasonable and in good faith." 4       The court concluded that "[i]f the rule in Glass were 



given complete retroactivity so that it would apply to cases already completed, the 

negative effect on the administration of justice would be substantial." 5          The court noted 



that, if the Glass rule were applied retroactively, it would impact a number of cases. 6 



Many of the cases could have involved serious crimes and would have been harder to 



prove without the tape recorded conversations. 



                The court reasoned that where the police and prosecuting agencies have 



reasonably relied upon previously established law, retroactive application of a new rule 



of law ran the risk of creating disrespect for the legal system: 



                Practical problems arise from the undisputed fact that the 

                police, prosecuting agencies and the public have relied upon 

                the previous statements of the law, and that the great impact 

                of and respect for the law in our society is based on such 

                acceptance by the public generally.   A change for the future 

                can be digested but the application of a new interpretation to 

                past   conduct    which    was    accepted    by  previous    judicial 

                decisions leads us to confusion and a hesitancy to accept any 



    4   Glass, 596 P.2d at 14. 



    5   Id. (citations omitted). 



    6   Id. at 15. 



                                                - 25 -                                            2379 


----------------------- Page 26-----------------------

                theory   except   one   of   gamesmanship   with   corresponding 

                disrespect for our whole system of laws. 7 



                There is a strong argument that the Supreme Court was correct when it 



decided to limit the retroactivity of the new rule in State v. Glass. Judd enabled the court 



to have the flexibility to consider the impact of its decision on the administration of 



justice to reach a just result.     The principle of retroactivity announced by the United 



States   Supreme   Court   in  Griffith   v.   Kentucky would   not   have   allowed   the   Alaska 



Supreme Court to weigh the impact of its decision as it was able to do by applying the 



rule in Judd .     There is a considerable risk in abandoning the flexibility of the Judd 



retroactivity rule, and the court should not lightly abandon that decision, particularly in 



a case which does not require reaching that issue. 



    7   Id. at 14 (quoting Judd v. State , 482 P.2d 273 at 278-79 (Alaska 1971)). 



                                               - 26 -                                           2379 

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