Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Garhart v. State (11/17/2006) ap-2072

Garhart v. State (11/17/2006) ap-2072

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-9081
Appellant, ) Trial Court No. 3PA-02-882 Cr
v. )
) O P I N I O N
Appellee. ) No. 2072 November 17, 2006
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances:  Verne E. Rupright, Wasilla, for
          the  Appellant.  John A. Scukanec,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for the Appellee.

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

          MANNHEIMER, Judge.

          A  jury  convicted James A. Garhart of five  counts  of
fourth-degree controlled substance misconduct based mainly on the
results  of  search  warrants issued for his house  and  vehicle.
During the execution of these warrants, the police found physical
evidence  tending to prove that he was engaged in the  commercial
cultivation of marijuana.
          (In particular, the police found 62 marijuana plants in
various  stages of growth; these plants yielded over 4 pounds  of
marijuana.   In  addition,  Garhart  had  four  motorized  track-
lighting systems, timers, fans, scales, and packaging materials.)
          Following  the  jurys verdicts, and while  Garhart  was
awaiting  sentencing, this Court issued its decision in State  v.
Crocker, 97 P.3d 93 (Alaska App. 2004).  In Crocker, we held that
a  magistrate should not issue a warrant to search someones  home
for  evidence  of marijuana possession unless the search  warrant
application  establishes  probable  cause  to  believe  that  the
marijuana   possession  falls  outside  the  scope  of  protected
personal  use recognized by the Alaska Supreme Court in Ravin  v.
State,  537 P.2d 494 (Alaska 1975)  e.g., the marijuana is  being
cultivated  for  sale,  or the amount of  marijuana  exceeds  the
amount allowed for personal use.  Crocker, 97 P.3d at 97-98.
          Based on this Courts decision in Crocker, Garhart filed
a  motion  for New Trial and Arrest of Judgment.  Garhart  argued
that,  because of Crocker, the superior court needed to re-assess
the  validity  of  the three search warrants  in  his  case.   In
particular,  Garhart argued that the first search warrant  issued
for his home did not establish probable cause to believe that his
marijuana  possession exceeded the scope of protected  possession
established by Ravin.
          The  superior court denied Garharts motion because  the
court  concluded that the search warrant did, in fact,  establish
probable  cause for the search, even under the rule announced  in
          Garhart  now  appeals the superior courts  ruling.   We
conclude  that it makes no difference whether the search  warrant
applications  in  Garharts  case were sufficient  under  Crocker.
Based  on  the  Alaska Supreme Courts decision and  reasoning  in
State  v. Glass, 596 P.2d 10 (Alaska 1979), we conclude that  our
decision in Crocker should not be applied retroactively  that is,
it  should  not be applied when assessing the validity of  search
warrants issued before we decided Crocker.
Why  we  conclude that Crocker should  not  be  applied

          Our  decision  in Crocker established  a  new
rule of constitutional law.
          We  acknowledge that the Crocker decision  is
based on our supreme courts decision in Ravin, 537 P.2d
494,  and on this Courts own decision in Noy v.  State,
83  P.3d  538 (Alaska App. 2003), and on rehearing,  83
P.3d  545  (Alaska  App. 2003).  But  for  purposes  of
evaluating  the  potential  retroactivity  of  a  court
decision,  a court decision can be new even  though  it
may  follow  logically from prior  decisions   or  even
though  it  can reasonably be described as governed  by
prior decisions.
          As  Justice  OConnor wrote in her  concurring
opinion in Wright v. West,  To determine what counts as
a  new rule, ... courts [must] ask whether the rule ...
can  be  meaningfully distinguished  from  [the  rules]
established  by  binding precedent  at  the  time  [the
defendants]   state  court  conviction  became   final.
(Emphasis added)1
          Even  though  a newly-announced rule  may  be
          described as controlled or governed by prior judicial
decisions, this does not necessarily decide  the  issue
of  whether the rule is new for purposes of  the  rules
governing retroactivity.  As the United States  Supreme
Court explained in Butler v. McKellar,
     [T]he  fact that a court says  that  its
decision is within the logical compass of  an
earlier  decision,  or  indeed  that  it   is
controlled  by  a  prior  decision,  is   not
conclusive  for purposes of deciding  whether
the  current decision is a new rule [for  the
test    governing   retroactivity].    Courts
frequently  view  their  decisions  as  being
controlled or governed by prior opinions even
when  [they are] aware of reasonable contrary
conclusions  reached by other  courts.   [If]
the  outcome  [was] susceptible  [of]  debate
among reasonable minds ... , [the rule should
be viewed as] a new rule.

494  U.S.  407, 415; 110 S.Ct. 1212, 1217-18;
108 L.Ed.2d 347 (1990).
          This Courts decision in Crocker was
clearly  susceptible  of  reasonable  debate.
Chief   Judge  Coats  dissented  in  Crocker,
arguing that this Court was overturning years
of  established  precedent  regarding  search
warrant applications.2  This fact essentially
decides   the  question  of  whether  Crocker
announced a new rule.  To paraphrase what the
Supreme  Court said on this subject in  Beard
v.   Banks,  reasonable  jurists  could  have
concluded  that  the [Alaska  Supreme  Courts
decision in Ravin and this Courts decision in
Noy]   did   not  compel  [the  decision   in
Crocker].3  Accordingly, Crocker announced  a
new   rule   for  purposes  of  retroactivity
          Because  Crocker  announced  a  new
rule, we must decide whether that new rule is
entitled to retroactive application.
          In   Griffith  v.  Kentucky,4   the
United  States  Supreme Court held  that  new
rules  of federal constitutional law must  be
applied  to  all defendants whose convictions
are  not  yet  final when  the  new  rule  is
announced.  But Crocker announced a  rule  of
state constitutional law, and the state rules
for retroactivity are different  particularly
when the new rule deals with the legality  of
searches  and  seizures,  and  the  potential
exclusion of evidence.
          The Alaska Supreme Court confronted
an analogous case in State v. Glass, 583 P.2d
          872 (Alaska 1978), on rehearing, 596 P.2d 10
(Alaska 1979).
          In  its  first Glass decision,  the
Alaska  Supreme  Court held that  the  Alaska
Constitution  restricts police monitoring  of
private  conversations to  a  greater  extent
than  the  federal  Constitution  does.    In
particular, the supreme court held that  even
when  one  participant  in  the  conversation
knows   of   and  consents  to   the   police
monitoring, the police still need to obtain a
warrant  to  engage in the monitoring5   even
though,  under federal law, the  acquiescence
of one participant is sufficient to authorize
the   police   to   engage   in   warrantless
          In  its second Glass decision,  the
supreme court confronted the issue of whether
the    Glass    rule   should   be    applied
retroactively    i.e.,   whether   defendants
should be entitled to suppression of evidence
which was obtained by police monitoring  that
was legal when it occurred, but that violated
the  rule  announced in Glass.   The  supreme
court  held that, with the exception of Glass
himself  and  the defendants in  three  other
accompanying cases, the Glass rule  would  be
applied  prospectively only.   That  is,  the
supreme   court   held   that   only   police
monitoring that occurred after September  15,
1978  (the  date of the first Glass decision)
would  be governed by the warrant requirement
announced in Glass.  Glass (II), 596 P.2d  at
11-12, 15.
          In  reaching  this conclusion,  the
supreme court applied the three-prong  Alaska
test  for  retroactivity adopted in  Judd  v.
State,  482  P.2d 273, 277-78 (Alaska  1971),
and  most  recently summarized  in  State  v.

We   consider  three  factors  when  deciding
whether to apply a new rule retroactively  or
prospectively:  (1) the purpose to be  served
by  the  new rule; (2) the extent of reliance
on  the  old rule; and (3) the effect on  the
administration  of justice of  a  retroactive
application of the new rule.

Semancik, 99 P.3d 538, 543 (Alaska 2004).
          Regarding  the  first  prong    the
purpose  of  the new rule  the supreme  court
noted  that  evidence  suppressed  under  the
Glass  rule is not suppressed because  it  is
unreliable,   but  rather  to   advance   the
          policies of the exclusionary rule:  to deter
police  misconduct, and to maintain  judicial
integrity.  But [the] deterrence function [of
the  exclusionary rule] cannot be  served  by
applying  Glass  to police conduct  occurring
before  the  date  of the  decision,  nor  is
judicial  integrity ... undermined  when  the
police  conformed their actions to  what  was
the law when they acted.7
          This   circumstance,  the   supreme
court declared, points quite decisively  away
from retroactive application of Glass.8

     A review of the decisions of the Supreme
Court  of  the  United  States  dealing  with
retroactivity  questions indicates  that  the
starting point in analysis is the purpose [of
the  new rule].  Where the purpose of the new
rule is primarily related to the integrity of
the  verdict,  the  application  thereof  has
generally  been extended to all  cases.   ...
On the other hand, where the purpose of a new
constitutional  standard is not  to  minimize
arbitrary or unreliable fact findings, but to
serve other ends, retroactive application has
generally been denied.

Glass (II), 596 P.2d at 14.9
          Turning to the second criterion for
assessing  retroactivity, the  supreme  court
noted  that  the reliance by law  enforcement
officials  on  pre-Glass law was  reasonable.
Law   enforcement  officials  could  not   be
expected to foresee our ruling in Glass,  and
thus  [their] decisions not to seek  warrants
for   participant  monitoring  were  entirely
reasonable and in good faith.10
          And  turning to the third criterion
for   assessing  retroactivity,  the  supreme
court noted that if the Glass rule were given
complete  retroactivity[,] so that  it  would
apply   to   cases  already  completed,   the
negative  effect  on  the  administration  of
justice  would  be substantial.   ...   Every
case   in  which  [a]  conviction  may   have
resulted  from  tape recorded evidence  would
have  to  be reopened and examined.  In  many
cases, evidence will have been lost, memories
faded and witnesses unavailable.11
          Based on these considerations,  the
supreme  court  ruled that the Glass  warrant
requirement would only apply prospectively to
activity occurring on or after September  15,
          The  supreme  courts  analysis   in
          Glass (II) applies equally to the question of
whether  our  decision in Crocker  should  be
applied retroactively.
          Regarding  the first prong  of  the
retroactivity analysis, the Crocker  decision
does  not  exclude  evidence  because  it  is
unreliable  or  because the  introduction  of
that evidence at a criminal trial may lead to
verdicts  of questionable validity.   Rather,
Crocker is aimed at protecting the privacy of
the home in a particular circumstance.
          Regarding the second prong  of  the
retroactivity analysis, both police  officers
(when  applying  for  search  warrants)   and
judicial   officers  (when   issuing   search
warrants)  reasonably relied  on  pre-Crocker
law  when  they  assessed whether  there  was
probable  cause to justify the  search  of  a
persons  home based on evidence of  marijuana
possession.   The decisions made by  judicial
officers   to   issue  such   warrants   were
reasonable  at  the time, and  their  actions
were taken in good faith.
          And  regarding the third  prong  of
the  retroactivity analysis,  according  full
retroactivity  to  Crocker   would   have   a
substantial    negative   effect    on    the
administration of justice.  Many cases  would
have  to  be  re-opened and, because  of  the
fruit  of  the  poisonous  tree  doctrine  of
exclusion,  it  appears to us  that  most  of
these cases could not be reprosecuted.
          Just as the supreme court concluded
that the Glass warrant requirement should not
be  applied  retroactively, we conclude  that
the  restriction on search warrants announced
in    Crocker    should   not   be    applied
          Our  decision in Crocker was issued
on  August 27, 2004.  The search warrants  in
Garharts case were issued in early March 2002
that  is, approximately two and a half  years
before  Crocker.  Accordingly, even if  those
search  warrant applications did not  satisfy
the test announced in Crocker, Garhart is not
entitled to relief.

Garharts challenges to the marijuana laws

     Garhart    raises   a   number    of    other
constitutional claims on appeal.  He asserts  that
Alaskas   laws   governing  the   possession   and
distribution of marijuana (as interpreted  by  the
decisions  of  the Alaska Supreme Court  and  this
Court)  violate  his rights to due process,  equal
protection, and privacy.
          Garharts arguments are rambling and difficult
to  follow,  and  he  does not  fully  explain  why  he
believes   that  the  challenged  laws  violate   these
constitutional   guarantees.    Garharts    fundamental
position appears to be that, because the Ravin decision
recognizes  a privacy right to possess limited  amounts
of marijuana in ones home for personal use, and because
the  Ravin decision did not establish an express  limit
on  the  amount  of marijuana that one  might  lawfully
possess  in  ones home, the legislature  is  prohibited
from  penalizing  the  possession  of  any  amount   of
marijuana in ones home, and the legislature is  further
prohibited   from   penalizing  the   distribution   of
marijuana  when  the  purchaser  intends  to  take  the
marijuana  home,  absent  affirmative  proof  that  the
marijuana will be used for commercial purposes.
          For   example,   Garhart  asserts   that   AS
11.71.040(a)(3)(F) (which prohibits the  possession  of
one     pound    or    more    of    marijuana)     and
AS  11.71.040(a)(3)(G) (which prohibits the  possession
of    25   or   more   marijuana   plants)   are   both
unconstitutional  when applied to marijuana  possession
in  ones  home  because neither statute requires  proof
that   the  possessor  of  the  marijuana  intends   to
manufacture   or   deliver  marijuana  for   commercial
          Garharts argument is contrary to this  Courts
decision in Walker v. State, 991 P.2d 799 (Alaska  App.
1999),  where  we  held  that  the  legislature   could
properly  prohibit  the personal  possession  of  eight
ounces  or more of marijuana in ones home, even if  the
marijuana was intended only for personal use.   Id.  at
            In Walker, we noted that the Ravin decision
did  not  rest  on  the  notion  that  people  have   a
fundamental  right  to  ingest  marijuana  or   possess
marijuana for personal use.  Rather, the Ravin decision
rested  on  a persons heightened right of privacy  with
respect to their conduct within their own home.  Id. at
801-02, quoting Ravin, 537 P.2d at 504.  We accordingly
concluded  that, even when marijuana is  possessed  for
purely  personal use, the legislature nevertheless  has
the  power  to set reasonable limits on the  amount  of
marijuana that people can possess for personal  use  in
their homes.  Walker, 991 P.2d at 802.
          Garharts argument essentially calls  upon  us
to  overrule  our decision in Walker.  Because  Garhart
asks  us to overturn the law established in Walker,  it
is Garharts burden to convincingly demonstrate that the
Walker decision either (1) was originally erroneous  or
(2) is no longer sound because of changed conditions.13
          But  Garharts  opening brief  does  not  even
mention  the Walker decision.  Nor does Garhart mention
Walker in his reply brief  even though the States brief
          explicitly relies on Walker when answering Garharts
          One  can  not defeat the principle  of  stare
decisis   by   studiously  avoiding  any   mention   of
inconvenient precedent.  We accordingly reject Garharts
constitutional attack on AS 11.71.040(a)(3)(F)  (G).
          Garhart  also  argues that if, under  Alaskas
constitutional right of privacy, people are entitled to
possess  a  limited amount of marijuana in their  homes
for  personal  use,  then  the constitution  must  also
protect  the  cooperative growing and  distribution  of
marijuana if the marijuana is intended solely  for  the
personal use of the people involved in the growing  and
distribution activities.  But, as we pointed out above,
the Ravin decision is not based on a purported right to
ingest  or possess marijuana.  Rather, it is  based  on
peoples  heightened  expectation of  privacy  in  their
homes.  The Ravin decision clearly states that there is
no  constitutional  right to  buy  or  sell  marijuana:
[N]either  the  federal or Alaska constitution  affords
protection for the buying or selling of marijuana ... .
Ravin, 537 P.2d at 511.
          Garhart  also argues that the courts and  the
legislature   can  not  lawfully  authorize   disparate
treatment of different aspects of the right of privacy.
Thus,  Garhart contends, the government  can  place  no
greater  limits on the right to possess marijuana  than
it  can place on other privacy rights such as the right
to  use  contraceptives  or  the  right  to  obtain  an
          This   argument  is  frivolous.   The   Ravin
opinion  explains that when a statute  or  other  state
action is challenged as violating an individuals  right
to  privacy, a court must first determine the nature of
the  privacy rights, if any, that are infringed by  the
states  action.   Then, if identifiable privacy  rights
are  infringed, the court must resolve the question  of
whether  the infringement is justified.  This  question
is answered by determining (1) whether there is a valid
governmental   interest  in  imposing  the   challenged
restriction,  and (2) whether the means chosen  by  the
government  to advance its interest bear a sufficiently
close  and  substantial relationship to that  interest,
given  the  nature  of  the  privacy  right  infringed.
Ravin, 537 P.2d at 498, 504.
          In  other  words, our supreme court has  held
that  when a court assesses a claimed right of privacy,
the  result will depend on what particular activity  is
at  stake.   The  court must weigh the persons  privacy
interest  in pursuing that particular activity  against
the  governments  competing interest in  regulating  or
forbidding that activity.
          To  the extent that Garhart may be attempting
to  raise  other claims in his brief, we conclude  that
any  such  claims  are  waived  because  of  inadequate

The  superior  courts denial of Garharts  requests  for
special interrogatories and special production, and for
pre-trial depositions

          Garhart  filed several discovery requests  in
the  superior court, including a motion to  compel  the
State  to  answer special interrogatories  and  produce
documents under Alaska Criminal Rule 16, as well  as  a
motion  under  Alaska Criminal Rule 15 to conduct  pre-
trial depositions.
          In  these motions, Garhart sought information
regarding   the   investigative  techniques   and   the
personnel used by the Matanuska-Susitna Narcotics Unit.
Garharts  expressed intention was  to  prove  that  the
officers  of  this  unit,  when  applying  for   search
warrants,   presented   false  assertions   that   they
personally could detect the odor of marijuana emanating
from  a  particular structure  when, in fact, the  true
source  of the information about the marijuana  was  an
undisclosed informant or a prior unlawful search of the
          Garhart sought to depose two individuals  who
lived  near Garharts residence.  According to  Garharts
motion,  these two individuals allegedly told  a  third
party  that  they  had been secretly  involved  in  the
investigation  of Garharts case.  Based on  this  third
partys  report, Garhart claimed that the  officers  who
procured the search warrant in his case relied on these
two   undisclosed  informants  for  information   about
Garharts   illegal  activities,  but  then  failed   to
disclose the existence of these informants to the court
or to Garharts defense attorney.
          Superior   Court  Judge  Eric  Smith   denied
Garharts  motion to compel the State to answer  special
interrogatories and to specially produce other evidence
because  the  judge concluded that the Alaska  Criminal
Rules  did not authorize these procedures.  On  appeal,
Garhart argues that Judge Smith should have granted his
requests, but he does not address the substance of  the
judges ruling (i.e., the judges conclusion that Garhart
was asking for something that the Criminal Rules do not
authorize).   Because Garhart does  not  address  Judge
Smiths  legal basis for denying this special discovery,
Garhart   has  waived  his  challenge  to  the   judges
          With  regard to Garharts motion for pre-trial
depositions, Judge Smith allowed Garhart to  submit  ex
parte   the  affidavit  of  the  person  who  allegedly
interviewed the two undisclosed police informants,  and
the  judge  deferred  his  ruling  on  the  matter   of
depositions until he reviewed this affidavit.
          Alaska  Criminal Rule 15 authorizes pre-trial
depositions  in criminal cases for only  two  purposes:
          (1) to preserve a witnesss testimony if the witness
will not be available to testify at trial, and (2) [in]
exceptional circumstances, ... to prevent a failure  of
justice.    Judge   Smith  apparently  believed   that,
depending  on  the  content of the affidavit,  Garharts
request  for depositions might potentially  fall  under
subsection (2).
          But  after  reviewing  the  affidavit,  Judge
Smith  found no basis for allowing the affidavit to  be
presented  ex  parte, and he notified Garhart  that  he
intended  to release the affidavit to the State  unless
Garhart   filed  an  opposition.   Garhart   filed   no
opposition,  so Judge Smith made the affidavit  public.
The  judge  also denied Garharts motion  for  pre-trial
depositions, concluding that the affidavit submitted by
Garhart failed to establish reason to believe that  the
police were using undisclosed or unlawful investigative
          We  have examined the affidavit, and we agree
with  Judge Smiths conclusion.  The information in this
affidavit  does not establish a reasonable  possibility
that  the  police were using undisclosed informants  or
that they had engaged in illegal investigative tactics.
Accordingly, we conclude that Judge Smith did not abuse
his discretion when he denied Garharts request for pre-
trial depositions.

Garharts  argument  that  the State  should  have  been
required to elect a single count among the five  counts
of  the indictment before the case was submitted to the

          In  five separate counts, Garhart was accused
of   violating   four  provisions  of  AS  11.71.040(a)
relating     to    marijuana:     subsection     (a)(2)
(manufacturing  or possessing one ounce  or  more  with
intent  to  deliver); subsection (a)(3)(F)  (possessing
one pound or more); subsection (a)(3)(G) (possessing 25
or more plants); and two counts under subsection (a)(5)
(knowingly   maintaining  a  building   and   knowingly
maintaining  a  vehicle that were used for  the  felony
keeping or distribution of marijuana).
          Garhart  went  to trial on all  five  counts.
However,  just prior to the parties closing  arguments,
Garhart  asked Judge Smith to order the State to  elect
one count among the five, and to preclude the jury from
considering  the  four others.  In his motion,  Garhart
argued that allowing presentation of all five counts to
the  jury  would violate the constitutional prohibition
on double jeopardy.
          Judge  Smith  correctly denied  this  motion.
Even  when  the  counts  of the  defendants  indictment
charge separate theories of the same crime, or when the
counts  of  the indictment charge separate crimes  that
will ultimately be treated as the same crime under  the
rule     announced    in    Whitton     v.     State,16
   Alaska   law  allows  the  government  to   seek   a
jury verdict on each count.  The double jeopardy clause
comes  into operation later, when the sentencing  court
is asked to enter judgement on those verdicts.  At that
time,  the court must merge one or more of the verdicts
so  that  the  defendant receives only  the  number  of
convictions  and  sentences  allowed  by   the   double
jeopardy clause.
          See Gilbert v. State, 598 P.2d 87, 91 (Alaska
1979);  Robinson  v. State, 487 P.2d 681,  682  (Alaska
1971);  Atkinson  v. State, 869 P.2d 486,  495  (Alaska
App. 1994).
          This is what happened in Garharts case.   The
jury found Garhart guilty of all five counts, but Judge
Smith  later  ruled that, under Alaska double  jeopardy
law, he was obliged to merge the verdicts on Counts  I,
II,  III,  and IV.  Thus, Judge Smith entered only  two
convictions against Garhart:  one conviction  on  these
four  merged counts, and another conviction on Count  V
(maintaining  a  vehicle  for  the  felony  keeping  or
distribution of marijuana).

Garharts challenges to his sentence

          Garharts  offenses  are class  C  felonies.17
Garhart was a second felony offender, owing to his 1992
federal  felony conviction for manufacturing marijuana.
Garhart  therefore faced a 2-year presumptive  term  on
each of his two convictions.18
          In  support  of  his  request  for  a  lesser
sentence,  Garhart  proposed three  mitigating  factors
under   AS  12.55.155(d):   (d)(13)   that  the   facts
surrounding  this  offense  and  his  previous  offense
established that the harm he has caused is consistently
minor  and  inconsistent with a substantial  period  of
imprisonment; (d)(14)  that his offense involved  small
quantities of marijuana; and (d)(16)  that his  offense
involved a small amount of a marijuana for personal use
in his home.
          Judge Smith found that Garhart had failed  to
prove  any of these three mitigators.  Later, the judge
sentenced  Garhart  to the 2-year presumptive  term  on
each  count, and he ordered these two sentences to  run
concurrently.  Thus, Garharts composite sentence  is  2
years to serve.
          Garhart  argues that Judge Smiths  ruling  on
the  proposed mitigating factors was influenced by  the
fact  that  all  five  counts were  submitted  to,  and
decided  by, the jury.  But as we explained  above,  it
was  proper  for  Judge  Smith to  allow  the  jury  to
deliberate on all five counts.  Moreover, even  if  all
five  counts had not been submitted to the jury,  Judge
Smith was nevertheless entitled to consider all of  the
evidence  in  the  case when he  made  his  rulings  on
          Garharts proposed mitigators, regardless of whether
that  evidence was a necessary component of  the  jurys
          See  Brakes v. State, 796 P.2d 1368,  1370-73
(Alaska  App.  1990)  (holding that,  because  a  lower
burden  of  proof applies at sentencing,  a  sentencing
judge can consider facts adverse to the defendant  even
if  the jurys verdict shows that the jurors found those
same facts not to be proved).
          Garhart also argues that Judge Smith rejected
his  proposed  mitigators because the judge  improperly
employed a presumption that Garharts marijuana  growing
and   distribution  activities  were   for   commercial
purposes.   But Garhart cites no portion of the  record
or the transcript to support this assertion.
          In  fact,  the record shows that  when  Judge
Smith  rejected  Garharts  assertions  of  consistently
minimal harm and purely personal use, the judge  relied
heavily  on  the  evidence  in  Garharts  present  case
especially,  the amount of marijuana found in  Garharts
possession.   We note, as well, the facts  of  Garharts
previous  federal conviction; in that prior case,  more
than  4 kilograms of marijuana (approximately 9 pounds)
was seized from Garharts house.
          Garhart  also  argues  that  he  should  have
received either a suspended imposition of sentence  or,
at  least,  a wholly suspended sentence of imprisonment
in  light of the political nature of his case.  Garhart
argues  that  [his] only crime was a  political  belief
held  by  almost forty percent of Alaskans:   that  the
government  has no business criminalizing  the  use  or
cultivation of marijuana.
          First,  Judge  Smith  had  no  authority   to
sentence  Garhart  to less than the 2-year  presumptive
term.   Garhart failed to prove any mitigating factors,
and he did not ask Judge Smith to refer his case to the
statewide    three-judge   sentencing    panel    under
AS  12.55.165.  Thus, the prescribed 2-year presumptive
term  was,  in effect, the applicable minimum sentence.
See  the  pre-March 2005 versions of  AS  12.55.125(e),
AS 12.55.125(g), and AS 12.55.155(a).
          Second, Garhart was not convicted because  of
his  political beliefs.  He was convicted  because  the
State  proved that he broke the law.  Garhart  has  the
right  to  seek to have the marijuana laws  changed  or
repealed, but he does not have the right to flout them.


          The  judgement  of  the  superior  court   is

1Wright  v.  West, 505 U.S. 277, 304; 112 S.Ct. 2482,  2497;
120 L.Ed.2d 225 (1992) (OConnor, J., concurring).

2Crocker, 97 P.3d at 99 (Coats, C.J., dissenting), citing
Lustig  v.  State,  36  P.3d 731, 732-33  (Alaska  App.
2001);  Wallace v. State, 933 P.2d 1157,  1163  (Alaska
App. 1997); McClelland v. State, 928 P.2d 1224, 1226-27
(Alaska App. 1996); Landers v. State, 809 P.2d 424, 424-
25, 426-27 (Alaska App. 1991).

3Beard v. Banks, 542 U.S. 406, 416; 124 S.Ct. 2504, 2513;
159 L.Ed.2d 494 (2004).

4479 U.S. 314, 328; 107 S.Ct. 708, 716; 93 L.Ed.2d  649

5Glass, 583 P.2d at 879, 881.

6See United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28
L.Ed.2d 453 (1971).

7Glass (II), 596 P.2d at 14.

8Glass (II), 596 P.2d at 13.

9Quoting Rutherford v. State, 486 P.2d 946, 952-53 (Alaska

10Glass (II), 596 P.2d at 14.

11Id. at 14-15.

12Id. at 15.

13State v. Semancik, 99 P.3d 538, 540 (Alaska 2004).

14See  Katmailand, Inc. v. Lake and Peninsula  Borough,  904
P.2d  397,  402 n. 7 (Alaska 1995); Petersen v. Mutual  Life
Ins.  Co. of New York, 803 P.2d 406, 410 (Alaska 1990); Wren
v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978).

15See Zok v. State, 903 P.2d 574, 576 n. 2 (Alaska 1995).

16479 P.2d 302 (Alaska 1970).

17See AS 11.71.040(d).

18See AS 12.55.125(e)(1) (pre-March 2005 version).

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights