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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rofkar v. State (4/20/2012) sp-6665

Rofkar v. State (4/20/2012) sp-6665

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



SVEN ROFKAR,                                    ) 
                                                )       Supreme Court No. S-14214 
                          Petitioner,           )      Court of Appeals No. A-10383 
                                                ) 
        v.                                      )       Superior Court No. 3PA-06-00754 CR 
                                                ) 
STATE OF ALASKA,                                )      O P I N I O N 
                                                ) 
                          Respondent.           )      No. 6665 - April 20, 2012 
                                                ) 



                Petition for Hearing from the Court of Appeals of the State of 

                Alaska, on appeal from the Superior Court of the State of 

                Alaska,   Third   Judicial   District,   Palmer,   Kari   Kristiansen, 

                Judge. 



                Appearances:       Dan S. Bair, Assistant Public Advocate, and 

                Richard Allen, Public Advocate, Anchorage, for Petitioner. 

                Ann B. Black, Assistant Attorney General, Anchorage, and 

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



                Before:    Carpeneti, Chief Justice, Fabe, Winfree, Stowers, 

                Justices and Matthews, Senior Justice.* 



                PER CURIAM. 



I.       INTRODUCTION 



                Sven Rofkar grew a substantial quantity of marijuana in a house that he 



rented.   After the State Troopers searched the house, Rofkar was charged with four 



        *       Sitting    by   assignment     under    article  IV,   section   11   of  the   Alaska 



Constitution and Alaska Administrative Rule 23(a). 


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                                                                                                            1 

felonies.    The charges were brought under separate subsections of AS 11.71.040;  all 



were designated as "misconduct involving a controlled substance in the fourth degree." 



Specifically, Rofkar was charged with manufacturing one ounce or more of marijuana 



in violation of subsection (a)(2); possessing  one pound or more of marijuana in violation 



of subsection (a)(3)(F);possessing  25 or more marijuana plants in violation of subsection 



(a)(3)(G); and maintaining a dwelling for keeping a controlled substance in violation of 



a felony offense, in violation of subsection (a)(5). 



         1       AS 11.71.040 provided in relevant part when Rofkar was charged: 



                  (a)  [A] person commits the crime of misconduct involving a 

                 controlled substance in the fourth degree if the person 

                          . . . . 

                          (2)  manufactures   or   delivers,   or   possesses   with the 

                          intent     to   manufacture        or   deliver,    one    or   more 

                          preparations, compounds, mixtures, or substances of 

                          an aggregate weight of one ounce or more containing 

                          a schedule VIA controlled substance; 

                          (3) possesses
 

                                   . . . . 
 

                                   (F)    one   or   more     preparations,      compounds, 

                                   mixtures, or substances of an aggregate weight 

                                   of   one   pound   or   more   containing   a   schedule 

                                   VIA controlled substance; or 

                                   (G) 25 or more plants of the genus cannabis; 

                          . . . . 

                          (5)  knowingly   keeps   or   maintains   any   store,   shop, 

                          warehouse, dwelling, building, vehicle, boat, aircraft, 

                          or other structure or place that is used for keeping or 

                          distributing   controlled   substances   in   violation   of   a 

                          felony offense under this chapter or AS 17.30 . . . . 



                 AS   11.71.190(b)   provides:           "Marijuana   is   a   schedule   VIA controlled 

substance." 



                                                       -2-                                                 6665
 


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                A jury found Rofkar guilty on all charges.         The superior court merged the 



two    possession    charges    into  the  manufacturing      charge,   but  refused   to  merge    the 



"maintaining" charge.       Rofkar therefore stands convicted of two felonies. 



                The double jeopardy clause of the Alaska Constitution provides that "[n]o 

person shall be put in jeopardy twice for the same offense."2             The underlying question 



in this case is whether two convictions have been imposed on Rofkar for the "same 



offense" within the meaning of this clause or whether he committed two crimes. 



                Rofkar raised this issue on appeal to the court of appeals.  But the court of 

appeals declined to consider it.  Instead, the court held that its opinion in Davis v. State3 



was controlling authority.      Because Rofkar did not argue that Davis should be overruled 



in his opening brief, although he did   so in his reply brief, the court gave the double 



jeopardy issue no further consideration. 



                We conclude that this case should be reviewed by the court of appeals on 



the merits for two reasons.  First, the double jeopardy issue was raised and not waived. 



Second, it is not clear that Davis v. State was decided in accordance with the applicable 



test for deciding double jeopardy claims set out in this court's opinion in  Whitton v. 

State .4 We explain these reasons below. 



II.     DISCUSSION 



        A.      Double Jeopardy Was Raised. 



                Rofkar, in his opening brief to the court of appeals, clearly raised the issue 



of   whether   his   double   jeopardy    rights   were   violated.  He   argued   that   the   test   for 



determining multiplicity that was first expressed by this court in Whitton v. State required 



        2       Alaska Const. art. I,  9. 



        3       766 P.2d 41 (Alaska App. 1988). 



        4       479 P.2d 302 (Alaska 1970). 



                                                  -3-                                              6665 


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

merger of the maintaining count with the other previously merged counts.5                    Rofkar also 



        5        The following quotation from the Whitton opinion summarizes the Whitton 



test as well as the problem it was designed to solve and the procedures that should be 

followed by trial courts when it is used: 



                         The problem we are faced with has arisen by reason of 

                 legislative division or refinement of what may be a unitary 

                 criminal episode into a number of statutory offenses, with 

                 differences     based    upon    intent   or   means    or   method     of 

                perpetration.       In   determining      whether     several    statutory 

                violations constitute the same offense for double jeopardy 

                purposes, we will no longer follow the same-evidence test as 

                 enunciated in Blockburger v. United States [284 U.S. 299 

                 (1932)]. . . . 



                         We     now    meet   the   problem     in  another    way,   with 

                 confidence that it can be solved, by focusing upon the quality 

                 of the differences, if any exist, between the separate statutory 

                 offenses,   as   such   differences   relate   to   the   basic   interests 

                 sought to be vindicated or protected by the statutes. 



                         The    trial  judge   first  would    compare      the  different 

                 statutes in question, as they apply to the facts of the case, to 

                 determine whether there were involved differences in intent 

                 or conduct.     He would then judge any such differences he 

                 found in light of the basic interests of society to be vindicated 

                 or   protected,   and   decide    whether    those   differences     were 

                 substantial     or   significant    enough      to   warrant    multiple 

                punishments.       The social interests to be considered would 

                 include the nature of personal, property or other rights sought 

                to be protected, and the broad objectives of criminal law such 

                 as punishment of the criminal for his crime, rehabilitation of 

                the criminal, and the prevention of future crimes. 



                         If such differences in intent or conduct are significant 

                 or   substantial   in   relation   to   the   social   interests   involved, 

                multiple sentences may be imposed, and the constitutional 

                prohibition against double jeopardy will not be violated.  But 

                                                                                           (continued...) 



                                                    -4-                                              6665
 


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

discussed at some length federal authority on double jeopardy. 



                Despite this argument the court of appeals declined to consider the merits 



of Rofkar's double jeopardy claim.            After setting out a portion of the  Whitton test the 



court stated: 



                We previously applied this test in Davis v. State to determine 

                whether      the   double     jeopardy     clause   prohibits    separate 

                convictions for possession of cocaine with intent to deliver 

                 and    maintaining     a  dwelling     for  keeping     or  distributing 

                cocaine.  We concluded that these offenses "differ markedly 

                in the conduct that they prohibit and in the specific social 

                interests that they seek to preserve."         We therefore held that 

                the    entry    of  separate     convictions     did   not   violate    the 

                defendant's protection against double jeopardy. 



                         In his reply brief, Rofkar asserts that the Davis case is 

                in error.    But we are bound to follow a prior decision unless 

                we are "clearly convinced that the precedent is erroneous or 

                no   longer   sound   because   of   changed   conditions,   and   that 



        5(...continued) 



                if there are no such differences, or if they are insignificant or 

                insubstantial, then only one sentence may be imposed under 

                double jeopardy.  Ordinarily the one sentence to be imposed 

                will    be  based    upon    or  geared    to  the  most   grave    of  the 

                offenses involved, with degrees of gravity being indicated by 

                the different punishments prescribed by the legislature. 



                         In the event the trial judge decides, under the test we 

                have   established,   that   multiple   sentences   may   be   imposed 

                without   contravening        the  double    jeopardy     provision,   the 

                reasons for his determination must affirmatively appear in the 

                record.     There   should   be   a   statement   by   the   judge   of   the 

                relevant factual or other considerations which led him to such 

                 a decision, in order that the constitutional legitimacy of the 

                multiple sentences may be fully reviewed on appeal. 



Whitton, 479 P.2d at 312 (citations omitted). 



                                                    -5-                                              6665
 


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

                more   good   than   harm   would   result   from   overturning   the 

                case."  Because of the way that this issue has been raised, the 

                parties   have not had the opportunity to argue whether the 

                Davis case should be overruled.           We conclude that Rofkar 

                has failed to make the argument necessary for us to overrule 

                this precedent.[6] 



                In our view, when an appellant adequately raises an issue in an opening 



brief,   the  fact   that   the  appellant   does   not   argue  that   important   authority   must   be 



overruled, or distinguished, until a reply brief does not justify refusing to consider the 



issue on its merits. Instead, the court may sua sponte, or on motion of the appellee, grant 



an opportunity for supplemental briefing. Here Rofkar's failure to discuss the Davis case 

in his initial brief was poor advocacy, but it did not waive his double jeopardy claim.7 



        B.      It Is Unclear Whether Davis Accords With The  Whitton Test. 



                The dispositive language in the Davis opinion is as follows: 



                While Davis' violation of both statutes resulted from a single 

                course of action, the offenses differ markedly in the conduct 

                that they prohibit and in the specific social interests that they 

                seek to preserve.       Davis' double jeopardy   rights were not 

                infringed by the entry of separate convictions and sentences 

                on these charges.  See State v. Dunlop, 721 P.2d 604, 607-08 

                (Alaska 1986).[8] 



        6       Rofkar v. State , Mem. Op. & J. No. 5683, 2011 WL 746439 at *12-13 



(Alaska App., Mar. 2, 2011) (citations omitted). 



        7       The    State   raised  Davis    in   the   superior   court   in   response   to   Rofkar's 



argument   based   on    Whitton.     Thus,   Rofkar's   counsel   knew   that   the   State   would   be 

relying on the case on appeal.        This case does not therefore fall within the ethical rule 

requiring the disclosure of directly applicable authority that has not been disclosed by 

opposing counsel. See Alaska R. Prof. Conduct 3.3. Counsel's failure was not unethical, 

but it was an unwise tactic from the standpoint of persuasion. 



        8       Davis , 766 P.2d at 46. 



                                                   -6-                                             6665
 


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

                 Davis thus cited State v. Dunlop rather than Whitton.   But Dunlop decided 



a separate question.       The question in Dunlop was whether one or multiple crimes were 



committed when a defendant by a single act injured or killed two or more people.  In 



                                                                            9 

Dunlop we concluded that in an earlier case, Thesson v. State,  we had erred "in applying 

Whitton to multiple violations of a single statute."10            Although Dunlop clarified that the 



Whitton test does not apply where one statute has been violated by a single course of 



conduct that results in multiple deaths or            injuries, the Dunlop court made it clear that 

Whitton would otherwise continue to apply.11 



                 Further,   the  Davis   opinion   takes   the   form   of   a   categorical   ruling   that 



possession of illegal drugs and maintaining a dwelling used for keeping illegal drugs are 



always separate crimes.  But Whitton requires a comparison of the different statutes "as 



they apply to the facts of the case, to determine whether there were involved differences 

in intent or conduct."12        If case-specific differences in intent or conduct are found to 



exist, then such differences must be evaluated in light of the "basic interests of society 

to be vindicated or protected . . . ."13      If the court finds that "such differences in intent or 



conduct are significant or substantial in relation to the social interests involved, multiple 



sentences      may    be  imposed,"      but  if  there  are   no   such   differences    "or   if  they  are 



         9       408 P.2d 1192 (Alaska 1973). 



         10      Dunlop ,    721    P.2d    at  608-09.    Thesson   held      that  only   one   homicide 



conviction could be entered against a defendant who had set a fire that killed 14 people. 



         11      Id. at 608 n.17 ("We do not disturb our holding in Whitton here."). 



         12      479 P.2d 310, 312 (Alaska 1970) (emphasis added).                  
 



         13      Id .
 



                                                     -7-                                               6665
 


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

insignificant or insubstantial," only one conviction can be imposed.14             It does not appear 



from the text of the Davis decision that a comparison was made between the intent or 



conduct involved in the different statutes as applied to the facts of the case.  It is also not 



evident     that   the   legislative   history    underlying     the   maintaining      subsection    of 



AS 11.71.040 was consulted to determine the social interests sought to be protected. 



                Finally, the court of appeals recognized in its Rofkar opinion the possibility 



that "under some circumstances, Alaska's double jeopardy clause might be violated if 



a defendant receives separate convictions for possessing drugs and for maintaining a 

dwelling or building to keep those same drugs."15              The recognition of this possibility 



seems inconsistent with the use of the Davis case as categorical contrary precedent. 



III.    CONCLUSION 



                For these reasons, we VACATE the decision of the court of appeals and 



REMAND   this   case   to   the   court   of   appeals   for   consideration   of   the   issue   whether 



Rofkar's double jeopardy rights were violated by the entry of multiple convictions under 



the facts and circumstances of this case. 



        14      Id. 



        15      Rofkar v. State , Mem. Op. & J. No. 5683, 2011 WL 746439 at *11 n.20 



(Alaska App., Mar. 2, 2011) (citing Maness v. State , 49 P.3d 1128, 1139 (Alaska App. 

2002) (Mannheimer, J., concurring)). 



                                                  -8-                                               6665 

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