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McGowen v. State (9/25/2015) ap-2477

McGowen v. State (9/25/2015) ap-2477

                                                          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
  

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                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



GERALD L. MCGOWEN,  

                                                                          Court of Appeals No. A-10769         

                                        Appellant,                       Trial Court No. 3PA-06-538 CR               



                              v.  

                                                                                                          

                                                                                       O P I N I O N  

STATE OF ALASKA,  



                                        Appellee.  

                                                                                                                   

                                                                        No. 2477 - September 25, 2015  



                      ppeal  from  the  Superior  Court,  Third  Judicial  District,  

                    A                                                                            

                    Palmer, Kari Kristiansen, Judge.  

                                                            



                    Appearances:Tracey Wollenberg, AssistantPublicDefender,  

                                                                                                

                    and Quinlan Steiner, Public Defender, Anchorage, for the  

                                                                                                         

                    Appellant. Diane L. Wendlandt, Assistant Attorney General,  

                                                                                                 

                    Office of Special Prosecutions and Appeals, Anchorage, and  

                                                                                                         

                    Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  the  

                                                                                                         

                    Appellee.  

                                    



                    Before:  Mannheimer,  Chief  Judge,  Allard,  Judge,  and  

                                                                                                       

                    Hanley, District Court Judge. *  

                                                       



                    Judge ALLARD.  

                              



     *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                                 In March 2006, the Alaska State Troopers executed a search warrant on                                                                                      



Gerald L. McGowen's home, seizing 26 marijuana plants, three baggies of marijuana                                                                                                             



weighing a total of 11.2 grams, and equipment used to grow and process marijuana.                                                                                                                                         



Based   on  this   evidence,   McGowen   was   charged   with   four   counts   of   misconduct  



involving a controlled substance in the fourth degree under four alternative theories in                                                                                                                           



AS 11.71.040(a).   



                                 Count I charged McGowen with knowingly manufacturing one ounce or                                                                                                                



                                               1  

more of marijuana.                                                                                                                                                                                      

                                                   Count II charged McGowen with knowingly possessing one pound  



                                                     2  

                                                                                                                                                                                                     

or more of marijuana.                                    Count III charged McGowen with knowingly possessing twenty- 



                                                                            3  

                                                                                                                                                                                                                     

five or more marijuana plants.                                                   And Count IV charged McGowen with maintaining a  



                                                                                                                                                                                                                  

structure for the purpose of keeping or distributing controlled substances in violation of  



                                                                                         4  

                                                                                                                                                                                         

                                                                                              The jury convicted McGowen of all charges.  

a felony provision of the drug laws. 



                                                                                                                                                                                                                 

                                 At McGowen's sentencing, the superior court properly merged Count IV  



                                                                                                                                                                                                           

(maintaining a structure for keeping or distributing controlled substances) with the other  



                               5  

                                                                                                                                                                                                              

three counts.                      This left McGowen with separate convictions on Counts I, II, and III. The  



                                                                                                                                                                                                      

superior court imposed 3 years with 1 year suspended on each count, to be served  



concurrently.  



         1       AS 11.71.040(a)(2).
  



        2        Former AS 11.71.040(a)(3)(F) (pre-June 2006 version).
  



        3        AS 11.71.040(a)(3)(G).
  



        4        AS 11.71.040(a)(5).
  



        5        See Rofkar v. State, 305 P.3d 356, 358-59 (Alaska App. 2013).
  



                                                                                                      - 2 -                                                                                              2477
  


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

                      McGowen appealed his convictions to this Court on various grounds, but                                           



he   did   not   argue   that   his   three   convictions   should   merge.     This   Court   affirmed  

McGowen's convictions in an unpublished opinion.                                    6  



                      McGowen then filed a petition for hearing to the Alaska Supreme Court,  



                                                                                                                         

arguing for the first time that under the double jeopardy clause of the Alaska Constitution  



                                                                                                                           

his three convictions should merge because they were all based on the same underlying  



conduct.  



                                                                                                                                         

                      The supreme court remanded McGowen's case to this Court, directing us  



                                                                                                                                 

to determine whether McGowen's double jeopardy claimhad merit. We, in turn, ordered  



                                                                                

the parties to submit supplemental briefs on this issue.  



                                                                                   

           Why we conclude that all three counts must merge  



                                                                                                                           

                      In its supplemental brief, the State concedes that McGowen's conviction  



                                                                                                                                       

on  Count  II  (possessing  one  pound  or  more  of  marijuana)  must  merge  with  his  



                                                                                                                                  

conviction on Count III (possessing 25 or more marijuana plants) because both counts  



                                                                                                   7  

                                                                                  

were based on McGowen's possession of the same marijuana.                                                                            

                                                                                                      This concession is well- 

founded.8  



                                                                                                                                      

                      The State contends, however, that McGowen's conviction on Count I (for  



                                                                                                                          

manufacturing one ounce or more of marijuana) should not merge with his convictions  



                                                                                                                               

for possessing marijuana.  The State argues that Count I is distinct because it required  



                                                                                                                                       

proof both that McGowen grew the marijuana, and that he did so with the intent to sell  



     6     McGowen v. State , 2012 WL 5275022 (Alaska App. Oct. 24, 2012) (unpublished).  



     7     See Atkinson v. State, 869 P.2d 486, 495 (Alaska App. 1994).  



      8    See Marks v. State,  496 P.2d 66, 67-68 (Alaska 1972) (holding that when the State  



concedes error in a criminal case, the appellate court must independently  assess whether the  

State's concession is well-founded).  



                                                                  - 3 -                                                            2477
  


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

the   marijuana,   rather   than   to   consume   it   himself.     (Alaska   Statute   11.71.040(a)(2)  



prohibits "manufactur[ing] or deliver[ing], or possess[ing] with intent to manufacture or                                                                        



deliver," one ounce or more of marijuana.                                          The statutory definition of "manufacture"            

excludes growing marijuana for personal use.                                           9)  



                                                                                                                               10  

                                                                                                                                                                 

                                                                                                                                    The defendant in  

                         We addressed a similar argument in Atkinson v. State . 



                                                             

Atkinson was convicted of two counts of misconduct involving a controlled substance  



                                                                                                                                                       

in the fourth degree.  Count I was for manufacturing or possessing with intent to deliver  



                                                                                                                          11  

                                                                                                                                                              

one  ounce  or  more  of  marijuana  under  AS  11.71.040(a)(2).                                                                 Count  II  was  for  



                                                                                                                                                      12  

                                                                                                                                                            

possessing one pound or more of marijuana under former AS 11.71.040(a)(3)(F).                                                                             Both  



                                                                                                                                                           

counts were based on the same marijuana.   We concluded that the two counts must  



                                                                                                                                                           

merge because they alleged alternative statutory theories of the same crime and were  



                                                                                                                                 13  

                                                                                                                                                             

                                                                                                                                      In reaching this  

"based on a single act of possession involving the same marijuana." 



                                                                                                                                                            

conclusion, we relied on case law from another jurisdiction, which held that it was  



                                                                                                                                                              

impermissible to impose separate convictions for (1) possessing a drug with intent to sell  



                                                                              14  

                                                                     

and (2) simply possessing the same drug. 



                                                                                                                                                              

                         In a footnote in Atkinson , we left open the possibility that merger might not  



                                                                                                                                                            

have been required if the jury's verdict on Count I had specified that Atkinson was  



                                                                                                                                                          

convicted of manufacturing marijuana (i.e., growing marijuana with intent to sell) rather  



       9     See AS 11.71.900(13)(A).  



       10    Atkinson , 869 P.2d at 495.  



       11    Id. at 490.  



       12    See ch. 53,  7, SLA 2006 (amending AS 11.71.040(a)(3)(F) to prohibit possession   



of four ounces of marijuana, rather than one pound).   



       13    Atkinson , 869 P.2d at 495.  



       14    Id.  



                                                                             - 4 -                                                                       2477
  


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

                                                                                                                                                             15  

than possession with intent to sell.                                                                                                                                 The State now relies on this footnote to argue that                                                                                                                                                                 



merger is not required in McGowen's case.                                                                                                                                                               But, although there may be circumstances                                                                                          



in which manufacturing and possessing marijuana are distinct criminal acts under the                                                                                                                                                                                                                                                                                                        



double jeopardy clause, those circumstances are not present here.                                                                                                                                                                                                                   



                                                             Here, McGowen was convicted of growing marijuana with the intent to sell                                                                                                                                                                                                                                                       



and also separately convicted of possessing                                                                                                                                                             that same marijuana                                                                               once it was grown.                                     



                                                             (We note that the prosecutor used other evidence seized from McGowen's                                                                                                                                                                                                               



home   - in                                              particular,   three   baggies   of   marijuana   separated   into   one-eighth   ounce  



portions, and $600 in cash - to argue that the marijuana McGowen grew was for sale                                                                                                                                                                                                                                                                                                       



rather than for personal use.  But, as McGowen points out, these baggies of marijuana                                                                                                                                       



could not support his conviction on Count I, because they did not satisfy the one-ounce                                                                                                                                                                                                                                                                    



threshold   required   to   charge   a   defendant   with   manufacturing   marijuana   under  



AS 11.71.040(a)(2).)   



                                                             Because we see no reason to distinguish, for purposes of double jeopardy,                                                                                                                                                                                                                         



between McGowen's act of growing marijuana and his act of possessing that same                                                                                                                                                                                                                                                                                                   



marijuana    once    it    was    grown,    we    conclude    that    McGowen's    conviction    for  



manufacturing marijuana                                                                                                must merge with his convictions for possessing the same                                                                                                                                                                                                   



marijuana.  



                               Conclusion  



                                                             We direct the superior court to merge Counts I, II, and III - i.e., to enter  

                                                                                                                                                                                                                                                                                                                                                                                    



one merged conviction for misconduct involving a controlled substance in the fourth  

                                                                                                                                                                                                                                                                                                                                                                              



degree based on the jury's four guilty verdicts.  

                                                                                                                                                                              



                15            Id. at 495 n.6.  



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