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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Charles v. State (4/25/2014) sp-6897

Charles v. State (4/25/2014) sp-6897

         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  

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                   THE SUPREME COURT OF THE STATE OF ALASKA  



BYRON E. CHARLES,                                          )  

                                                           )    Supreme Court No. S-12944  

                           Petitioner,                     )    Court of Appeals No. A-09623  

                                                           )  

         v.                                                )    Superior Court No. 1KE-05-00765 CR  

                                                           )  

STATE OF ALASKA,                                           )    O P I N I O N  

                                                           )  

                           Respondent.                     )    No. 6897 - April 25, 2014  

                                                           )  



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

                                                                       

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

                  Alaska,  First  Judicial  District,  Ketchikan,  Kevin  Miller,  

                  Judge.  



                  Appearances:             Tracey       Wollenberg,         Assistant      Public  

                                                      

                  Defender, and Quinlan Steiner, Public Defender, Anchorage,  

                                                              

                  for  Petitioner.        Timothy  W.  Terrell,  Assistant  Attorney  

                                                                         

                  General,       Office     of    Special     Prosecutions         &    Appeals,  

                  Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                                                            

                  Juneau, for Respondent.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, and Maassen,  

                                                          

                  Justices, and Eastaugh, Senior Justice.*  

                                                                         [Bolger, Justice, not  

                  participating.]  



                  EASTAUGH, Senior Justice.  



         *        Sitting by assignment made under article IV, section 16 of the Alaska  



Constitution.  


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

I.        INTRODUCTION
  



                                                                                      1 

                    Does the 2008 holding in Doe v. State (Doe I)  apply to Byron E. Charles, 



whose 2006 conviction for violating the Alaska Sex Offender Registration Act (ASORA)  



was still on direct review when he argued for the first time, in reliance on our then-recent  

                                                                                                     



Doe I opinion, that applying ASORA to him violated Alaska's ex post facto clause?  We  

                             



conclude  that  it  does.    In  doing  so,  we  adopt  for  cases  on  direct  review  the  federal  



                                                                                       2  

retroactivity  standard  announced  in  Griffith  v.  Kentucky.     We  also  conclude  that  



Charles's prior failure to raise the ex post facto issue does not bar him from doing so  

                



now:  Manifest injustice would result if he could  not challenge on direct review his  

                                                                            



conviction for violating a criminal statute that, under our constitution, may not be applied  

                                                                    



to him.   



                                                     

                    We therefore reverse the court of appeals's 2007 decision that affirmed  



Charles's judgment and reverse his 2006 judgment of conviction.  



II.       FACTS AND PROCEEDINGS  



                                   

                    Byron E. Charles was convicted of a sex offense in the 1980s.  In 1994 the  



                                                      3  

Alaska Legislature enacted ASORA.   The statute was expressly retroactive:  It stated  



that  persons  convicted  of  sex  offenses  were  required  to  register  as  sex  offenders  



"regardless of whether the conviction occurred before, after, or on the effective date of  

                                        



          1         189  P.3d  999,  1019  (Alaska  2008)  (holding  that  Alaska  Sex  Offender  



Registration Act (ASORA) violates ex post facto clause when applied to a person who  

                                                                                   

committed the underlying sex offense before ASORA's enactment).  



          2         479 U.S. 314, 328 (1987) (holding that new constitutional rules apply to  

                                  

cases pending on direct review or that are not yet final).  



          3         Ch. 41, SLA 1994; see also Doe I , 189 P.3d at 1000 & n.3 (describing  

                                                               

enactment and scope of ASORA).  



                                                             -2-                                                       6897
  


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

                  4  

[ASORA]."       ASORA   accordingly   required   Charles   to   maintain   sex   offender  

registration.5  



                                                    

                    In 2006 Charles was charged with misdemeanor failure to register as a sex  



offender.  At Charles's failure-to-register trial, a Ketchikan police officer testified that  



                                          

he checked Charles's 2005 registration and found that the listed address did not exist.  



Charles testified that he had written the nonexistent address, but asserted that he likely  



confused a past address with a family member's address.  The trial judge, sitting as the  



                                                       

trier of fact, found that Charles was aware of a substantial probability that the address  



                                                          

was inaccurate and was thus guilty of failure to register.  A judgment of conviction for  



                                                       

misdemeanor failure to register as a sex offender was entered against Charles in 2006.  



                                                                                                           

                    Charles filed a timely appeal in which he argued only that the trial court's  



                                                 

finding of guilt was inconsistent with its finding Charles was credible, that the trial court  



                                                                           

erred in ruling on an evidentiary issue, and that the evidence was not sufficient to sustain  



                      6  

                         He did not argue that applying ASORA to him would be an ex post  

the conviction.                                                                         

facto violation.  The court of appeals affirmed Charles's conviction in 2007.7  



          4         Ch.  41,    4,  SLA  1994  (codified  as   former  AS  12.63.100(2)  (1994),  



currently codified as AS 12.63.100(5)).  



          5         See  AS  11.56.840  (criminalizing  failure  to  register);  AS  12.63.010  



(describing registration requirements).  



          6         Charles  v.  State,  Mem.  Op.  &  J.  No.  5277,  2007  WL  4227335,  at  *1  

                                               

(Alaska App., Nov. 28, 2007).  



          7         Id.  Charles's sentence had been stayed by the superior court pending the  

                                         

outcome of his appeal.  The record contains no indication that the court of appeals or  

superior court has vacated the stay.  Charles does not contend that he is now in custody.  

                                                                  



                                                              -3-                                                        6897
  


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

                    In 2008 we issued our opinion in Doe I , holding that applying ASORA to  

                                                                                        8  Charles then filed a timely  

Doe violated the Alaska Constitution's ex post facto clause. 



pro se petition for hearing to this court; relying on Doe I , he argued that his failure-to- 

           



register conviction violated the ex post facto clause.  Charles had never raised an ex post  

                                                                                                                         



facto argument in the superior court or in his direct appeal to the court of appeals.  The  

                                                                                                   



State  opposed  Charles's  petition,  arguing  that  Doe  I  did  not  retroactively  excuse  



Charles's  failure  to  comply  with  ASORA.    In  light  of  Doe  I 's  possible  impact  on  



                                                       

Charles's conviction, we remanded to the court of appeals to consider these questions:  



                                                                         

                    1.        Assuming  Charles  is  now  raising  an  ex  post  facto  

                                                                                     

                    challenge to application of ASORA to him, did Charles waive  

                                                                              

                    that  argument,  and  if  so,  is  an  ex  post  facto  challenge  

                    waivable?  



                    2.        Should the principle of direct review retroactivity as  

                    described in the federal courts, see Griffith v. Kentucky, 479  

                                                                          

                    U.S. 314 (1987), be adopted as a principle of Alaska law, and  

                                                                                                   

                    if so, under the principle of direct review retroactivity, should  

                    Charles's  2006  conviction  for  failure  to  register  be  set  

                              [9] 

                    aside?  



                                                                                     

                    On remand, Charles (by then represented by counsel) and the State filed  



                                                                            10  

supplemental briefs and presented oral arguments.                               Noting that we had not entered a  



                                                                     

final order with respect to Charles's petition, and had thus not explicitly either granted  



                                                     

or denied the petition, the court of appeals treated the remand as a request for its "input  



          8         189 P.3d at 1019; see also Alaska Const. art. I,  15 ("No bill of attainder       



or ex post facto law shall be passed.").  



          9         Alaska Supreme Court Order, File No. S-12944 (Jan. 7, 2009) (footnote  



integrated into text).  



          10        Charles v. State, 287 P.3d 779, 781 (Alaska App. 2012).  



                                                               -4-                                                         6897
  


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

                                                                                                                                    11  

                                                                                                                                         

and recommendations on these issues," not as a request to decide these issues.                                                            Its per  



                                                                                                               

curiam opinion suggested the following:  (1) Ex post facto rights should be intentionally  

waivable and unintentionally forfeitable;12 (2) Charles unintentionally forfeited his ex  



                                                                                13  

                                                                                                                                        

post facto claim, limiting review to plain error;                                  (3) Doe I should retroactively apply to  



                                                                                                                                                 14  

                          

Charles's case under either Alaska's existing retroactivity standard (the Judd standard   ) 



                                                                                                                               15 

or the federal standard for direct review retroactivity (the Griffith standard   ), making it 



                                                                                                                16  

unnecessary  to  decide  whether  to  adopt  the  federal  standard;                                                 and  (4)  Charles's  



                                                                                                                17  

conviction violated the ex post facto clause and was plain error.                                                   Chief Judge Coats  



                                                                                                        

concurred but wrote separately to emphasize the benefits of retaining Alaska's existing  

retroactivity standard.18  



                       After  the  court  of  appeals  issued  its  per  curiam  opinion,  we  asked  the  



parties to file supplemental briefs.  



            11         Id.  



            12         Id. at 781-82.  



            13         Id. at 789.  



            14         See Judd v. State, 482 P.2d 273, 278 (Alaska 1971) (assessing retroactivity   



by weighing the following: "(a) the purpose to be served by the new standards; (b) the                                                    

extent of the reliance by law enforcement authorities on the old standards; and (c) the   

effect on the administration of justice of a retroactive application of the new standards").   



            15         Griffith  v.  Kentucky,  479  U.S.  314,  328  (1987)  (holding  that  new  



                                            

constitutional rules must be applied retroactively to cases pending on direct review or  

that are not yet final).  



            16         Charles, 287 P.3d at 784-89.  



            17         Id. at 789-90.  



            18         Id. at 790-91 (Coats, C.J., concurring).  



                                                                        -5-                                                                 6897
  


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

III.       STANDARD OF REVIEW  



                      This  petition  presents  only  questions  of  law,  to  which  we  apply  our  

independent judgment. 19  



IV.        DISCUSSION  



                                                                              

                     We now resume our consideration of the petition for hearing Charles filed  



                                     

in 2008.  Charles was convicted of failing to register as a sex offender under ASORA.  



                 

In  Doe  I  we  ruled  that  ASORA  cannot  constitutionally  be  applied  to  persons  who  



                                                                                                                          20  

committed  their  underlying  sex  offenses  prior  to  the  statute's  enactment.                                               As  we  



recognized by entering our order that remanded Charles's case to the court of appeals,         



                                                                                                                      

there are two potential barriers to applying Doe I to Charles's conviction.  First, because  



Doe I was issued after Charles's 2006 conviction, there is an issue whether Doe I applies  



to him retroactively.  Second, because Charles raised no ex post facto challenge in the  



                                                                  

trial court or the court of appeals, there is an issue whether Charles should be barred from  



raising that challenge for the first time in his petition for hearing.  



                                                             

                      Charles's supplemental briefing asks us to adopt the recommendations of  



                                                                                            

the court of appeals and vacate his conviction without requiring full briefing on the  



merits.    Charles  also  argues  that  we  should  adopt  the  federal  Griffith  standard  and  



accordingly hold that Doe I retroactively bars his conviction.  He argues alternatively  



                                                                                          

that even if we do not adopt the Griffith standard, Doe I retroactively applies to Charles  



                                                                                   

under the existing Judd standard.  He contends that no plain error analysis is necessary,  



but that, in any event, his conviction was plain error.  



           19        State v. Doe A, 297 P.3d 885, 887 (Alaska 2013).  



           20        Doe  v.  State  (Doe  I),   189  P.3d   999,   1019   (Alaska  2008)  ("ASORA's  



registration, disclosure, and dissemination provisions violate the protection against ex  

post facto laws afforded by the Alaska Constitution as it applies to defendants who  

committed their crimes before the legislature enacted ASORA . . . .").  



                                                                   -6-                                                             6897
  


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

                    In its supplemental brief the State agrees that we should adopt the Griffith  



standard.  But it argues that Charles forfeited his ex post facto claim and that review  



                                                                                          

should be limited to plain error.  As to the merits, it refers us to its arguments in State v.  



         21                                 22 

                            

Doe A       and State v. Stickman .              The State's supplemental brief asks us to wait for those  



cases  to  be  resolved  and  to  require  full  briefing  before  deciding  whether  Charles's  



                                                                                        

conviction  should  be  reversed.                   As  we  discuss  below  in  Part  IV.C,  Doe  A  and  

Stickman have since been resolved.23  



          A.        We Adopt The Griffith Standard For Direct Review Retroactivity.  



                    To determine whether Doe I retroactively applies to Charles's case, we  



                              

begin by analyzing the applicable standard for retroactively applying new constitutional  



                                                                                                           

rules.  Broadly speaking, the choice is between two standards: either full retroactivity or  



                                                        24  

                                                                  

limited ("direct review") retroactivity.                    As we said in State v. Smart, "[a]pplying a new  



constitutional principle to criminal cases on collateral review gives the principle 'full  



                                                                                                                         

retroactivity,' " and "[a]pplying a new principle to cases on direct review, to cases at the  



                                                 

trial  level,  to  any  case  not  yet  charged,  and  to  crimes  not  yet  committed  gives  the  

                                                 25  A case is "final" when "a judgment of conviction has  

principle 'limited retroactivity.' "                                                                        



been  rendered,  the  availability  of  appeal  exhausted,  and  the  time  for  a  petition  for  



          21        No. S-14486 (Alaska, filed Oct. 6, 2011).  



          22        No. A-10441 (Alaska App., filed Mar. 19, 2009).  



          23        See Doe A, 297 P.3d at 886 (holding Doe I to be binding precedent); Alaska  



Court of Appeals Order, File No. A-10441 (May 23, 2013) (granting State's motion to  

                            

dismiss State v. Stickman).  



          24        See State v. Smart, 202 P.3d 1130, 1134 n.18 (Alaska 2009).  

                           



          25  

                                                                                             

                    Id.  (citing  Yerrington  v.  Anchorage,  675  P.2d  649,  651  (Alaska  App.  

 1983)).  



                                                              -7-                                                        6897
  


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

                                                                                         26  

certiorari elapsed or a petition for certiorari finally denied."                              Because we issued Doe I  

                                   



before Charles's time to file a petition for hearing had expired, Charles's case was not  



                                             

yet  final,  and  we  are  thus  presented  with  an  issue  of  limited,  or  direct  review,  



retroactivity.  



                                                              

                    In Judd we identified three criteria to determine whether new constitutional  



                                                                          

rules must apply retroactively:  "(a) the purpose to be served by the new standards; (b)  



                                                                                                                     

the extent of the reliance by law enforcement authorities on the old standards; and (c) the  



                                                                                                                                 27  

                                                                                                 

effect on the administration of justice of a retroactive application of the new standards." 



We adopted those criteria from the federal standard announced in 1965 by the United  



                                                                      28  

States Supreme Court in Linkletter v. Walker .                            In doing so we noted that the criteria  



                                                                                  29  

                                                                                      But in Griffith, issued in 1987,  

"apparently [had] been agreed upon by all authorities." 



                                                                            

the United States Supreme Court abandoned the standard announced in Linkletter for  



direct  review  retroactivity  and  instead  instructed  that  new  constitutional  rules  will  



                                                                                                               

automatically apply to cases that are not yet final or are on direct review when the new  



                           30  

                                                                             

rule is announced.             In State v. Smart, issued after Griffith, we explained that "it may be  



          26        Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987).  



          27        Judd v. State , 482 P.2d 273, 278 (Alaska 1971).  



          28        381 U.S. 618, 636-38 (1965).  



          29        Judd , 482 P.2d at 277.  



          30        See  Griffith,  479  U.S.  at  328;  see  also  Smart,  202  P.3d  at  1136-38  



(discussing decline of Linkletter  standard for cases on direct review); Charles v. State,  

                                                                 

287 P.3d 779, 784-87 (Alaska App. 2012) (discussing same).  



                                                               -8-                                                         6897
  


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

difficult to defend   the use of the Linkletter/Judd standards in cases involving direct  



                                       31  

review on the state level."                 



                    Both Charles and the State ask us to abandon the Judd standard for direct  



                                                                                                                

review retroactivity and adopt Griffith.  They reason that adopting Griffith will promote  



                                

fairness and support Alaska's equal protection and due process guarantees by ensuring  



                                                         

that similarly situated defendants - those with cases on direct review - are treated  



                                                                                                    

similarly.  The court of appeals's per curiam opinion suggests that under either the Judd  



                                                                                 

standard or the Griffith standard our holding in Doe I should retroactively bar Charles's  



                 32  

                     The per curiam opinion therefore concludes that we do not need to decide  

conviction.                                                                                                   

whether to adopt the Griffith standard.33  

                                                              



                    Our review of the United States Supreme Court's reasons for abandoning  

                                                                                                            



the  Linkletter  criteria  persuades  us  that  we  should  follow  suit  for  direct  review  



                                                                                                                                34  

retroactivity.    The  abandonment  of  Linkletter  began  in  Williams  v.  United  States.  



There, the Court followed Linkletter and denied retroactive application of a new rule to  

                                                                                                                          



                                       35                                                   36 

a  case  on  direct  review.                  But  Justice  Harlan  dissented.                    He  argued  that  new  



constitutional rulings should always be applied to cases on direct review; he explained  

                                                                                     



that it was indefensible to "[s]imply fish[] one case from the stream of appellate review,  

                                                                                                          



us[e] it as a vehicle for pronouncing new constitutional standards, and then permit[] a  



          31        Smart, 202 P.3d at 1138.  



          32        Charles, 287 P.3d at 784.  



          33        Id.  



          34        401 U.S. 646 (1971).  



          35        Id. at 651-56.  



          36        Williams v. United States, 401 U.S. 667 (1971).  



                                                               -9-                                                         6897
  


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

                                                                                                                    37  

stream of similar cases subsequently   to   flow by unaffected by that new rule."                                        His  



dissent steadily gained acceptance.  In 1982 in  United States v. Johnson, the Supreme  



Court adopted it in place of Linkletter for cases on direct review, although the Court  



                                                

retained an exception if the new constitutional ruling was a "clear break" from the past  



       38  

           Five years later, in Griffith, the Supreme Court dispensed with the "clear break"  

rule.                      



exception and thus fully adopted the standard Justice Harlan had proposed for cases on  

                                                       

direct review.39  

                        



                   In   Griffith  the  Supreme  Court  explained  that  failing  to  apply  new  

                                                                                      



constitutional  rules  to  cases  on  direct  review  violated  two  norms  of  constitutional  

adjudication:  "the principle that this Court does not disregard current law"40 and the  



                                                                                         41  With regard to the first  

principle of "treating similarly situated defendants the same."                                                     



principle, the Court explained that the "integrity of judicial review" requires the Court  

                                                                            



to resolve cases before it on direct review "in light of [the Court's] best understanding  

                                                                                                    

of governing constitutional principles."42  With regard to the second principle, the Court  

                                                                                                                  



explained in subsequent decisions that Linkletter 's case-by-case weighing of interests  



"proved difficult to apply in a consistent, coherent way," leading to "strikingly divergent  

                                            



          37       Id. at 679.
  



          38        United States v. Johnson, 457 U.S. 537, 549, 562 (1982).
  



          39        Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
  



          40       Id. at 326.  



          41       Id. at 327.  



          42       Id. at 323 (quoting Mackey v. United States , 401 U.S. 667, 679 (1971)  



(Harlan, J., concurring in judgment)).  



                                                            -10-                                                       6897
  


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

           43  

                                                                                               

results"        and  "the  disparate  treatment  of  similarly  situated  defendants  on  direct  



             44  

                                               

review."        In Griffith the Court therefore "refused to continue to tolerate the inequity that  



resulted from not applying new rules retroactively to defendants whose cases had not yet  

become final."45  



                                                                                                           46  

                    Because  Judd  adopted  Linkletter 's  case-by-case  analysis,                             the  current  



                                                                                                

Alaska standard is susceptible to the same disparate application of new constitutional  



                                                                    

rulings:  The defendant in the case in which the ruling is announced will receive the  



                                                                                                      

benefit of the ruling, but other defendants with cases still pending before us may be  



                                                                                                          

denied application of our best understanding of governing constitutional principles.  We  



                                                                                

now have the opportunity to decide whether to follow the same path taken by the United  



States  Supreme  Court  and  abandon  the  Linkletter/Judd  criteria  for  direct  review  



retroactivity.   



                    We overrule a prior decision only when we are "clearly convinced that (1)  



                                                                                                   

a decision was originally erroneous or is no longer sound because of changed conditions;  



                                                                                            47  

and (2) more good than harm would result from overruling it."                                    



          43        Davis v. United States          , 131 S. Ct. 2419, 2430 (2011) (quoting Danforth v.  



Minnesota , 552 U.S. 264, 273 (2008)).  



          44        Teague v. Lane, 489 U.S. 288, 303 (1989).  



          45        Id. at 304 (citing Griffith, 479 U.S. at 323-24).  



          46        See Judd v. State, 482 P.2d 273, 278 (Alaska 1971).  



          47        Native Vill. of Tununak v. State, Dep't of Health & Soc. Servs., Office of  



Children's Servs., 303 P.3d 431, 447 (Alaska 2013) (citing Kinegak v. State, Dep't of  

Corr., 129 P.3d 887, 889 (Alaska 2006)).  



                                                             -11-                                                       6897
  


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

                     In  Judd  we  explained  that  retroactivity  standards  involve  "a  value  



                                                                                                                                      48  

                                               

judgment" and that we gave substantial weight to public confidence in the judiciary. 



We reasoned that because police, prosecuting authorities, and the public rely on previous  

                                                                                          



statements of the law, "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 theory except one of gamesmanship with corresponding disrespect for our whole  

                                                                  

system of laws."49  We relied on what we there termed "the practical problems" of public  

                                                                                            



and law enforcement reliance on previous statements of law as justification for adopting  

              



two of the Linkletter criteria - the extent of reliance by law enforcement on past rules  



                                                                                           50  

and retroactivity's effect on the administration of justice.                                   But we also recognized a  

                                                                                                                    



countervailing interest: Denying retroactive application of a new ruling to cases pending  

                                                                      



on direct review leads to disparate application of legal rules and "in a particular case the  

                                                                                      



                                                                                                                  51  

court may appear to countenance illegal acts on the behalf of the police."                                            Indeed, this  

                                                                                                      



interest  in  preventing  unfair  or  unconstitutional  prosecutions  is  enshrined  in  the  

                                                                                  

remaining  Linkletter  criterion  -  the  purpose  to  be  served  by  the  new  rule.52                                           By  



weighing   the   purpose   of   the   new   rule   against   law   enforcement   reliance   and  



administrative burdens, the Judd balancing test enables, but does not guarantee, the  



application of new constitutional rules to cases pending on direct review.  In this way,  



the Judd balancing test can ameliorate some concern with courts having a hand in the  

                                             



           48        Judd , 482 P.2d at 278.  



           49        Id. at 278-79.  



           50        See  id. at 278.  



           51        Id.  



           52        See id.  

                             



                                                                 -12-                                                           6897
  


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

                         53 

           

"dirty business"            of facilitating prosecutions stemming from unconstitutional laws or  



                                                                                                       

procedures.  And we have held that if the purpose of a new rule is to ensure the fairness  



                 

of a trial, that purpose always outweighs the countervailing interests and allows for  



                                                                         54  

                                                                                                   

retroactive application to cases on direct review.                           Nonetheless, if a rule is not clearly  



                                                                                          

related to the fairness of a trial - i.e., "where the purpose . . . is not to minimize arbitrary  

                                         55 -  Judd still potentially allows the inequity of selectively  

                                                                                  

or unreliable fact findings" 



applying a new rule to the party before us while denying its application to other parties  

                                                                                                             

with cases currently pending on direct review.56  

                                                                           



                    For the reasons the United States Supreme Court  discussed in Griffith, we  

                                                  



now conclude that disregarding our best understanding of constitutional principles and  

                                                                                         



disparately applying legal rules to cases on direct review undermines the integrity of  



                                                                                                             

judicial review and violates the principle of treating similarly situated defendants the  



          53        Id. at 278 (quoting People v. Edwards ,  458 P.2d 713, 722 (California 1969)  



(Peters, J., dissenting)).  



          54        Farleigh  v.  Municipality  of  Anchorage ,  728  P.2d  637,   639-41  (Alaska  



 1986).  



          55        Id. at 640 (quoting State v. Glass, 596 P.2d 10, 14 (Alaska 1979)).  



          56        See  Rutherford  v. State, 486 P.2d 946, 952-53 (Alaska 1971) (explaining  



that a new  rule has been given retroactive effect "[w]here the major purpose of [the rule]  

is to overcome an aspect of the criminal trial  which substantially impairs  its truth-finding  

function," but noting that analyzing the other Judd factors i   s  necessary because the  

impact  on  the  truth-finding  process  at  trial  is  a  "question  of  probabilities"  (quoting  

 Williams v. United States, 401 U.S. 646, 653 (1971); Stovall v. Denno, 388 U.S. 293, 290  

                                                                                          

(1967))).  



                                                              -13-                                                         6897
  


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

         57  

                                                                                                 

same.        We therefore hold that Judd was erroneous to the extent it potentially limited the  



                                                                                                                             58  

application of new constitutional rules to criminal cases pending on direct review.                                               



                                                          

                    We  also  conclude  that  more  good  than  harm  will  come  from  adopting  



                                                                                                      

Griffith's  bright-line  standard  for  direct  review  retroactivity.                                Applying  our  best  



understanding of constitutional law to all defendants on direct review does more good  



                        

than  allowing  disparate  treatment  merely  because  of  law  enforcement  reliance  or  



administrative burdens.  By requiring the application of our best understanding of the  



                                                    

constitution to all cases pending before us, Griffith leads to more rational results than  



                                           

Judd .  And in guaranteeing similar treatment of similarly situated defendants, Griffith is  



more fair than Judd.  Furthermore, adopting  Griffith will not result in overwhelming  



                                    59  

                                        Indeed, abandoning Judd and adopting  Griffith for cases on  

administrative burdens.  



direct review does not shift the law far from how we have applied Judd in practice:  to  



                                                                                  

require direct review retroactivity "where a new rule serves to ensure defendants a fair  



         60  

                                            

trial."        Although  Griffith  potentially  may  result  in  more  reversals,  it  removes  the  



                                                                  

uncertainty  of  litigating  whether  a  new  rule  relates  to  the  fairness  of  a  trial  and  



          57        See  Griffith v. Kentucky, 479 U.S. 314, 322-23 (1987).  



          58         Our conclusion today that Judd was erroneous is bolstered by changed  



conditions.  While we  are  not bound to federal retroactivity standards for new state  

                                           

constitutional  rules,  see  Garhart  v.  State,  147  P.3d  746,  748  (Alaska  App.  2006)  

                                        

(declining to apply federal retroactivity analysis to new state constitutional rule), in Judd  

                                                                                                                 

we were persuaded in part to  adopt the Linkletter criteria because of their universal  

                                                

acceptance.    See  Judd ,  482  P.2d  at  277-78  (explaining  that  the  Linkletter  criteria  

"apparently have been agreed upon by all authorities").  But after Griffith it is no longer  

                                                                                                                   

true that the weight of authority supports Linkletter for direct review retroactivity.  



          59  

                                                                                                       

                     Cf. Lauderdale v. State, 548 P.2d 376, 383-84 (Alaska 1976) (rejecting full  

retroactivity because "many hundreds, if not thousands" of convictions would be upset,  

but applying ruling to cases pending on direct review).  



          60        Farleigh , 728 P.2d at 640.  



                                                               -14-                                                         6897
  


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

                                                    

guarantees  uniform  application  of  new  constitutional  rules  to  similarly  situated  



                                                                             

defendants.  Furthermore, in adopting Griffith we will be able to draw from an available  



                                                                                            

body of federal law. And our state-law retroactivity analysis will align more closely with  

the federal-law analysis that guarantees that we satisfy minimum federal standards.61  



                                                              

                    Because we conclude that in retrospect it was error to adopt the Linkletter  



criteria for cases on direct review and that adopting Griffith for Alaska will do more good  



than  harm,  we  overrule  Judd  and  adopt  Griffith  as  the  standard  for  direct  review  



retroactivity in Alaska.  



                    We decline to follow the suggestion of the court of appeals that we defer  



                             62  

                                                                        

this determination.               The per curiam opinion reasoned that Doe I would retroactively  



                                                                                        

apply to Charles's case under the Judd  standard and that "even though the Griffith rule  



                                                                                           

of retroactivity has much to recommend it," this court does not need to rule on whether  



                 63  

                                                                                    

to adopt it.         It is correct that Judd would appear to allow retroactive application of  



                            

Doe I :  Holding  the application of ASORA unconstitutional to persons in Charles's  



                                                                                          

circumstances relates to the fairness of the prosecution.   Retroactively applying that  



                                                

factor to cases on direct review would therefore fairly extend our current notion that rules  



                                                                                                           

that ensure a fair trial or relate to the integrity of the verdict should be given retroactive  



          61        See, e.g., State v. Smart, 202 P.3d 1130, 1136 (Alaska 2009) (explaining  



Alaska may follow state retroactivity principles for applying new federal rule to a case  

                                                                                                                 

on collateral review "so long as the state test is at least as comprehensive as the federal  

                                                                                     

test");  Deemer  v.  State ,  244  P.3d  69,  71  (Alaska  App.  2010)  (applying  Griffith  to  

determine retroactivity of new federal rule to a case on direct review).  



          62         Charles v. State, 287 P.3d 779, 789 (Alaska App. 2012).  



          63        Id .  



                                                               -15-                                                         6897
  


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

          64  

                                                                           

effect.       Nonetheless, it is our task to make the necessary policy decisions and value  



                                                                        65  

                                                                                                 

judgments in discerning retroactivity standards.                            We perceive no plausible reason for  



                                                         

delaying to another day the question of whether to adopt Griffith.  Both Charles and the  



 State have persuasively recited the reasons for adopting Griffith .  And the Supreme  



                               

Court's reasons for limiting and ultimately abandoning Linkletter are convincing.  We  



                                                                                      

therefore conclude that litigants on direct review should receive the benefit of Griffith's  

clear and fair retroactivity standard.66  



                    We now turn to applying to Charles's case the retroactivity standard we  



adopt today - that all new constitutional rules apply to similar cases that are pending  



                                                 67                                                        68 

on direct review or not yet final.                   We announced our holding in Doe I    while Charles  



                                                            

could file a timely petition for hearing, and he ultimately filed his petition raising the ex  



          64        See Farleigh ,   728 P.2d at 640; Rutherford v. State , 486 P.2d 946, 952  



(Alaska 1971).  



          65        See Judd, 482 P.2d at 278 (explaining that retroactivity standards involve  



a "value judgment" and that this court must make the "necessary policy decisions").  



          66        We express no opinion about whether Judd  should still apply to cases on  

                                                                                        

collateral review, that is, to cases that are final or not on direct review.  Although the  

                                                            

United States Supreme Court has abandoned the Linkletter criteria for cases on collateral  

                                                                                         

review, it did so in favor of a general rule of non-retroactivity and in light of different  

considerations than those at issue in Griffith.  See Teague v. Lane, 489 U.S. 288, 305-06  

                                                                                                                  

(1989)  (emphasizing  the  nature  and  function  of  collateral  review).    Charles's  case  

presents no collateral review question, and in light of the different considerations at  

                                                                                                          

issue, today's holding has no impact on Judd 's application to cases on collateral review.  

                                                                                         



          67  

                            

                    See Griffith v. Kentucky, 479 U.S. 314, 328 (1987).  



          68        Doe v. State , 189 P.3d 999, 1019 (Alaska 2008) (holding that ASORA  



                                                                                     

violates the ex post facto clause as applied to those who committed their underlying sex  

offense before ASORA's enactment).  



                                                               -16-                                                        6897
  


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

                                                                                                    69  

                                                                                  

post facto issue within the time required for filing his petition.                                       Because his case was  



                                                                         

therefore on direct review, he retroactively  receives the benefit of Doe I .  The issue  



                               

remains, however, whether Charles waived or forfeited his Doe I argument by failing to  



raise the issue at trial or on direct appeal to the court of appeals.  



           B.         Charles Did Not Waive His Ex Post Facto Challenge.  



                                                          

                      On remand, we asked the court of appeals to consider whether an ex post  



                                                                                                                       70  

facto challenge is waivable and whether Charles had waived his challenge.                                                   The court  



                                                                                                                     

of appeals noted that nothing in the record suggests Charles knowingly decided not to  



                                                                71 

                                                                     The court of appeals therefore explained that  

pursue an ex post facto challenge at trial. 



                                                                                                                                        72  

                                 

the specific issue is whether ex post facto challenges may be unintentionally forfeited. 



It noted that "[s]everal federal and state courts have ruled that [ex post facto] protections  

                                                                                                   

can be forfeited by failing to assert them,"73 meaning the party must then demonstrate  

                                

plain error.74  In comparison, the Texas Court of Criminal Appeals has ruled that because  

                           



ex  post  facto  challenges  attack  the  legislature's  authority  to  criminalize  conduct,  



           69         Charles filed timely motions to extend the time in which to file his petition     



for hearing.         This court granted those motions.                      State v. Charles, No. S-12944 (Alaska,     

filed Dec. 13, 2007).   



           70        Alaska Supreme Court Order, File No. S-12944 (Jan. 7, 2009).  



           71         Charles v. State, 287 P.3d 779, 781 (Alaska App. 2012).  



           72        Id.  



           73  

                                                                                                                       

                     Id. at 782 (citing  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)).  



           74  

                            

                     Id.  



                                                                  -17-                                                             6897
  


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

"defendants should not be permitted to waive the protections of the ex post facto clause  



                                                                                                                                 75  

                                                                                                                  

'any more than they may consent to be imprisoned for conduct which is not a crime.' " 



                                                                                                                     

                    Charles argues that we should follow Texas and hold that his ex post facto  



challenge  -  an  attack  on  the  constitutionality  of  ASORA  -  is  jurisdictional  in  



character, and can thus be raised at any time.  



                    Because there is no indication that Charles intentionally waived an ex post  



facto challenge, we do not need to consider whether the court of appeals was correct in  



                                                                                                                                76  

stating that a criminal defendant may intentionally waive an ex post facto challenge.                                               



                    And because Charles did not raise his ex post facto challenge before the  



                                                        

district court or the court of appeals, we would ordinarily review the challenge only for  



                 77  

                                                                           

plain error.         As the court of appeals noted, "[a] claim of plain error typically includes  



an assertion that the lower court overlooked, or failed to remedy, an error that would  



                                                                   78  

                                                                                                            

have been obvious to any competent judge."                              But that explanation of plain error does  



                                                                

not adequately explain how to deal with a party's post-trial attempt to invoke a new  



                                    

constitutional rule that had not yet been announced when the case was tried and that was  



                                                                               

therefore not available to the trial court.  Any error in failing to conclude that ASORA  



violated the ex post facto clause could not fairly be called obvious to any judge of a court  



in which the issue might have been raised: We had not yet issued our ruling in Doe I  



when Charles's failure-to-register case was tried and appealed to the court of appeals.  



          75        Id . (quoting Ieppert v. State , 908 S.W.2d 217, 220 (Tex. Crim. App. 1995)).     



          76  

                              

                    Id. at 781 (explaining that it may, in some circumstances, be advisable for  

                                                               

a defendant to waive ex post facto rights; for example, a defendant may wish to forgo an  

                      

ex post facto  defense to a misdemeanor failure to register charge in exchange for a  

promise not to pursue a felony perjury charge).  



          77        Id. at 782-83.  



          78        Id. at 782 (citing Adams v. State , 261 P.3d 758, 773 (Alaska 2011)).  



                                                              -18-                                                         6897
  


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

                    The court of appeals proposed this special, "retrospective" plain error rule  



                                                  

when a new constitutional rule is announced:  "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  



                                                                                                                           79  

                           

proceedings, and that failure to correct this flaw would perpetuate manifest injustice." 



But  we  think  this  formulation,  although  helpful,  adds  avoidable  complexity  to  the  



ultimate inquiry.   



                                        

                    We therefore turn to the core of our plain error analysis.  In Adams v. State ,  



                                                                                                           

we stated:  "We have described plain error as involv[ing] such egregious conduct as to  



undermine  the  fundamental  fairness  of  the  trial  and  contribute  to  a  miscarriage  of  



            80  

justice."       We agree with that description.  Therefore, in deciding whether it was plain  



error not to apply a not-yet-announced constitutional rule, instead of focusing on whether  



the error was hypothetically obvious, we ask whether the error was "so prejudicial to the  

                                                            



fairness  of  the  proceedings  that  .  .  .  failure  to  correct  it  would  perpetuate  manifest  



               81  

injustice."         



                    The  court  of  appeals  concluded  that  because Doe  I  ruled  that  ASORA  

"violates Alaska's ex post facto clause,"82 and because it is undisputed that Charles  



committed his sex offense prior to ASORA's enactment, "Charles stands convicted of  



          79        Charles, 287 P.3d at 783 (emphasis in original).   



          80       Adams , 261 P.3d at 764 (alteration in original) (quoting Raphael v. State ,  



994 P.2d 1004, 1015 (Alaska 2000)) (internal quotation marks omitted).  



          81        Charles, 287 P.3d at 783 (omission in original) (quoting Adams , 261 P.3d  



at 764).  



          82       Doe v. State , 189 P.3d 999, 1019 (Alaska 2008).  



                                                            -19-                                                      6897
  


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

violating a criminal statute which, under our state constitution, can not apply to him."                                          83  



We agree with that conclusion. We also conclude that permitting Charles to be convicted  

                                                 



of violating a criminal statute that cannot constitutionally be applied to him would result  



                                                                                         

in manifest injustice.  Charles may therefore rely on Doe I even though he failed to raise  



                                                   84  

an ex post facto challenge at trial.                    His conviction must be set aside.  



          C.        We Decline To Allow Additional Briefing Before Granting Relief.  



                    The State's initial opposition to Charles's petition for hearing argued that  

                                                                  



we should deny the petition, because, even though Doe I  applied to the class of sex  

                                                                                            



offenders that included Charles, it was not unconstitutional to charge him with failing to  

                                                            



comply with ASORA before we issued our Doe I decision in 2008.  



                                                                                    

                    When we ordered supplemental briefing after the court of appeals issued  



                                                                                                          

its  per  curiam  opinion  on  remand,  Charles's  supplemental  brief  argued  that  any  



                                                                       

conviction based on a registration duty that  could not be constitutionally applied to  



Charles was invalid.  It asked us to vacate Charles's conviction of failing to register.  



                    In  response,  the  State's  supplemental  brief  argued  that  we  should  not  



                                                                                                        

reverse  Charles's  conviction  without  full  briefing  on  the  merits.    It  also  argued  -  



                                                                                                                             85  

summarizing two arguments it had made in its then-pending appeal in State v. Doe                                                -  



                                                                            

that  Doe  I  had  been  wrongly  decided  and  was  not  binding  precedent.    The  State's  



supplemental  brief    acknowledged  that  under Doe  I ,  "prospective  enforcement  of  a  



sentence stemming from such a failure-to-register conviction must cease."  But it argued  



          83         Charles, 287 P.3d at 790.  



          84        Id.  



          85        State v. Doe (Doe A), 297 P.3d 885 (Alaska 2013).  



                                                               -20-                                                             6897  


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

                                                                                       86 

-  summarizing arguments it had made in State v. Stickman,   an appeal then pending  



in the court of appeals - that offenders should not have their convictions declared void  



                                                                             

ab initio or expunged. The State's supplemental brief concluded that we "should decline  



to summarily reverse and vacate Charles'[s] conviction until this court decides [Doe  



A ],  .  .  .  and,  if  necessary,  Alaska's  appellate  courts  resolve  the  state's  additional  



arguments in State v. Stickman ."   



                   Thus, the State's supplemental brief in this case gave two reasons for asking  



                                                                                             

us to delay ruling:  First, that Doe I was wrongly decided and was not binding precedent.  



                                                                 

Second, that the State's arguments in State v. Stickman should be resolved.  Neither  



reason persuades us that we should call for additional briefing before ruling on Charles's  



request that we order that his conviction be vacated.  



                                                                       

                   We issued our decision in Doe A on March 13, 2013, and modified it when  



                                                                                        

we denied rehearing on April 10, 2013.  Our Doe A decision expressly held that Doe I  

                                                                  87  We have thus considered, and rejected,  

                                                                                                           

was correctly decided and is binding precedent. 



the two Doe A -related arguments the State's supplemental brief asked us to consider  



before granting relief to Charles.  



                   The State's appeal in Stickman elaborated on the same arguments the State  



raised  when  it  first  opposed  Charles's  petition  for  hearing.    In  Stickman,  the  State  



                                                                  

appealed  an  order  granting  post-conviction  relief  to  Donald  Stickman  after  he  was  



convicted of failure to register for a sex offense that pre-dated ASORA.  The State's  



                                        

briefs contended there that Stickman had an enforceable duty to comply with ASORA  



                                                               

until that statute was declared ex post facto.  In support of that contention, the State cited  



          86       No. A-10441 (Alaska App., filed Mar. 19, 2009).  



          87       Doe A , 297 P.3d at 886.  



                                                           -21-                                                        6897  


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

                      88                              89 

Jacko v. State           and  Clark v. State.             In Jacko the court of appeals rejected George  



Jacko's argument that a charge for violating a restraining order should be dismissed  



                                                               90  

                                                                   The court of appeals reasoned in              Jacko that  

because the order was factually unjustified.  

a person must obey a restraining order until it is vacated through proper procedures.                                         91  



It explained that it would encourage disobedience and violence to rule that "a person may  

                             

flout a court order with impunity if it later turns out that the order was illegal."92                                       In  

                                                           



Clark, the court of appeals affirmed a felon-in-possession-of-a-firearm conviction even  

                             

though the underlying felony conviction was later reversed.93  



                    Responding to the State's appeal, Stickman asserted that Doe I abrogated  

                                                 



the legislature's authority to require Stickman to register, making any conviction based  

                                                                                                  



on failure to register void.  Stickman distinguished Jacko and Clark, arguing that court  

                                                                                                                   



rulings had invalidated the predicate factual circumstances for the restraining order in  



Jacko and the prohibition on firearm possession in  Clark.  In comparison, Stickman  



                                         

argued that Doe I 's ex post facto holding instead pertained to the constitutionality of the  



very duty to register.  Stickman argued that applying Jacko and Clark to an ex post facto  



challenge  and  ruling  that  a  person  could  be  convicted  of  failing  to  comply  with  an  



unconstitutional statute would undermine a defendant's ability to raise constitutional  



challenges to the statute under which he or she was convicted.  



          88        981 P.2d 1075 (Alaska App. 1999).  



          89        739 P.2d 777 (Alaska App. 1987).  



          90        Jacko , 981 P.2d at 1077-78.  



          91        Id. at 1077.  



          92        Id. at 1078.  



          93        Clark, 739 P.2d at 781.  



                                                             -22-                                                        6897
  


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

                                                                                                     

                    The State did not file a reply to Stickman's appellee's brief; instead, after  



                                                          

obtaining two extensions in which to file a reply, it moved to dismiss its appeal.  The  

court of appeals granted the State's motion to dismiss on May 23, 2013.94  



                                                                                                                

                    Having reviewed the briefs filed by the State and Stickman in File No. A- 



10441, we are unpersuaded that it would be beneficial to give the State any additional  



opportunity to argue now that Charles could be charged with violating a statute which  



                                                                  

we later held could not be constitutionally applied to persons like Charles.  First, the  



State already had an opportunity, which it exercised, to argue that issue when it first  



                                                                                                          

opposed Charles's petition for hearing.  Second, the State's briefing  on that issue in  



                                                          

Stickman is not so compelling that we think further briefing might change the outcome  



of Charles's petition.  Third, the  State  voluntarily dismissed its appeal in  Stickman,  



waiving its opportunity to present the merits of that argument to the court of appeals.  It  



thus waived an opportunity to have, in the words of the State's supplemental brief, an  



                                                                                                                        

Alaska appellate court "resolve the state's additional arguments in [Stickman]."  We do  



                                                                                                  

not decide here whether Jacko and Clark or the analysis underlying those decisions could  



be the basis for upholding a person's conviction for failing to comply with a criminal  



                                                                                            

statute later declared to be unenforceable against that person for ex post facto reasons.  



          94        Alaska Court of Appeals Order, File No. A-10441 (May 23, 2013).    



                    In a notice the State filed on May 13, 2013 in the case now before us, the  

State candidly addressed the status of Doe A and Stickman .  The notice stated that the  

State's supplemental brief had asked us to decline to resolve Charles's petition "until two  

                                                                                                       

related cases had resolved," and informed us that "[t]hey have both since resolved."  It  

                                                                           

noted that Doe A , File No. S-14486, was fully resolved April 10, 2013, and that the State  

                                                                                  

had moved to dismiss its appeal in State v. Stickman, File No. A-10441, "late last week."  

                                                            



                                                             -23-                                                        6897
  


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

                                                                                       

We merely decide that, given the procedural circumstances in this case and in Stickman,  



                                                                                                                        95  

there is no reason to allow additional briefing before we decide Charles's petition.                                        



V.        CONCLUSION  



                                                                                                  

                   For these reasons we GRANT Charles's petition for hearing, REVERSE  



                                                                                         

the  2007  decision  of  the  court  of  appeals  that  affirmed  Charles's  judgment,  and  



REVERSE Charles's 2006 judgment of conviction.   



          95       Our appellate rules allow us to grant a petition for hearing and rule on the  



                                                               

merits without first ordering full briefing.  Alaska Appellate Rule 305(a) provides that  

                                                                                                               

a  case  shall  be  fully  briefed  when  hearing  is  granted  "[u]nless  the  order  granting  a  

hearing specifies otherwise."   



                                                            -24-                                                          6897  

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