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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) | |
| ) Court of Appeals No. A-9621 | ||
| Petitioner, | ) Trial Court No. 4BE-05-1142 CR | |
| ) | ||
| v. | ) O P I N I O N | |
| ) | ||
| JOSEPH W. KAMEROFF, | ) | |
| ) [No. 2124 - November 16, 2007] | ||
| Respondent. | ) | |
| ) (as corrected November 26, 2007 | ) | |
Appeal from the
Superior Court, Fourth Judicial District,
Bethel, Leonard R. Devaney, III, Judge.
Appearances: W. H. Hawley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Petitioner. Dan S. Bair, Assistant
Public Advocate, Chad W. Holt, Section
Supervising Attorney, Anchorage Adult and
Juvenile Section, and Joshua P. Fink, Public
Advocate, Anchorage, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
The State filed complaints charging Joseph W. Kameroff
with two counts of misdemeanor assault, one count of sexual
assault in the second degree, and one count of sexual assault in
the first degree. All of the charges allegedly arose on July 1,
2005, at the Yukon Kuskokwim Correctional Center. A.S. was the
alleged victim of all of the assaults. On the date set for
Kameroffs preliminary hearing on the sexual assault charges, the
State did not present any evidence, indicating that it intended
to indict Kameroff on those charges. The court dismissed the
felony charges under Criminal Rule 5 because the State had not
presented sufficient evidence to hold Kameroff on those charges
at a preliminary hearing.1 The misdemeanor charges remained
pending.
Approximately forty-five days later, Kameroff sought to
change his plea on the two misdemeanor assault offenses. The
prosecution objected on the ground that, if Kameroff entered his
plea to the misdemeanor assault charges, he might be able to
claim that double jeopardy barred the State from prosecuting him
on sexual assault charges. Kameroff argued that he had an
absolute right to enter a plea to the pending misdemeanor
charges. Senior District Court Judge Ethan L. Windahl, relying
on Ridlington v. State,2 concluded that even if Kameroff pleaded
guilty or no contest to the misdemeanors, those pleas would not
bar the State from prosecuting Kameroff on the felony charges.
Nevertheless, Judge Windall granted the States motion to delay
the misdemeanor change of plea hearing, so as to allow the State
to proceed with an indictment.
A grand jury indicted Kameroff on the felony sexual
assault charges in which A.S. was the victim, along with several
other charges that are not relevant to this discussion.
Kameroff then appeared in the superior court before Superior
Court Judge Leonard R. Devaney, III. Kameroff moved to dismiss
the felony sexual assault charges where A.S. was the alleged
victim. Kameroff argued that Judge Windahl had illegally
prevented him from changing his plea to the misdemeanor assault
charges, and that those assault charges were lesser-included
offenses of the felony sexual assault offenses. Kameroff
asserted that, had he been allowed to enter a plea to the
misdemeanor assault charges, the State would have been barred
from proceeding on the sexual assault charges under the Double
Jeopardy Clause.
Judge Devaney ruled that Judge Windall should have
allowed Kameroff to change his plea to the two misdemeanor
assault charges. Judge Devaney further concluded that, had
Kameroff been allowed to enter his no contest pleas to the
misdemeanor charges, double jeopardy would have barred the State
from prosecuting him on all of the felony charges in which A.S.
was the alleged victim. He ruled that Kameroff was entitled to
enter a plea of no contest to the two misdemeanor assault charges
and that, once Kameroff entered the pleas, the felony charges in
which A.S. was the alleged victim would be dismissed because they
were barred by double jeopardy.
The State petitioned for review of Judge Devaneys
decision. We granted the petition. We now reverse Judge
Devaneys order.
Why we conclude that double jeopardy does not
bar the State from proceeding on the felony
charges
Kameroffs argument and Judge Devaneys ruling rest on
the assumption that if Judge Windall had allowed Kameroff to
enter no contest pleas to lesser-included misdemeanor offenses,
the State would be precluded from pursuing the greater felony
charges. This assumption is incorrect. We start our discussion
with Ridlington v. State.3 Ridlington was arrested for driving
while intoxicated. The State originally filed a misdemeanor DWI
complaint, but the State discovered that Ridlington had prior DWI
convictions and filed another complaint charging Ridlington with
felony DWI.4 Ridlington attempted to plead guilty to the
misdemeanor charge, hoping that the Double Jeopardy Clause would
then bar the State from pursuing the felony charge.5 But the
magistrate refused to allow Ridlington to enter a guilty plea to
the misdemeanor. After the State indicted Ridlington, he raised
the same argument that Kameroff now raises. Ridlington argued
that the magistrate had had no authority to refuse to accept his
guilty plea to the misdemeanor. He argued that if he had been
allowed to plead guilty to the misdemeanor, his plea would have
barred the State from pursuing the felony charge.6 The superior
court rejected Ridlingtons argument, and Ridlington pleaded no
contest to felony DWI, reserving his right to raise the double
jeopardy argument on appeal.7
We held that, even if the magistrate had no right to
refuse to allow Ridlington to enter a guilty plea to the
misdemeanor charge, Ridlington was mistaken in his contention
that the State could not have prosecuted him for felony DWI.8 We
relied on the leading United States Supreme Court case of Ohio v.
Johnson.9 In Johnson, the Supreme Court held that the defendant
could not plead guilty to some of the charges in his indictment,
which were lesser-included offenses of greater charges, and then
assert that the Double Jeopardy Clause barred the government from
pursuing the greater offenses.10 The Supreme Court stated that
it saw no reason to allow the defendant to use the Double
Jeopardy Clause as a sword to prevent the State from completing
its prosecution on the remaining charges.11 The Supreme Court
concluded that allowing the government to prosecute Johnson did
not violate the basic protections of the Double Jeopardy Clause
and did not involve any overreaching by the government that the
Double Jeopardy Clause was supposed to prevent.12 In Ridlington,
we adopted the reasoning of the United States Supreme Court in
Johnson:
Ridlingtons motivation for trying to plead
guilty to the misdemeanor complaint was to
stop the State from pursuing the felony
complaint that had already been filed. Under
these circumstances, the reasoning and
policies described by the Supreme Court in
Ohio v. Johnson apply with equal vigor to
Ridlingtons case.[13]
Kameroffs case is distinguishable from Johnson and
Ridlington in one respect. In both Johnson and Ridlington, the
felony charges were pending at the time that the defendants
either entered or attempted to enter their pleas to the lesser-
included offenses. In Kameroffs case, the charges were not
pending; they had been filed but they were later dismissed under
Criminal Rule 5. But we conclude that this distinction is not
important for the resolution of this case. For instance, in
United States v. Quinones,14 the defendant entered a guilty plea
to several drug counts in the original indictment over the
governments objection.15 The defendant entered his pleas in the
hope of barring a charge that he had possessed a firearm in
connection with the drug offenses, a charge that increased the
mandatory minimum sentence he faced.16 The government had told
the defendant that it intended to bring the gun charge, but the
government had not yet filed the charge.17 The Quinones court
rejected Quinoness double jeopardy claim based on the reasoning
of Ohio v. Johnson.18 The court concluded that there was no
indication that the government was engaging in the overreaching
that the Double Jeopardy Clause was designed to prevent and that
Quinones, like the defendant in Johnson, was attempting to use
the Double Jeopardy Clause as a sword to prevent the government
from pursuing the gun charge.19 Professors LaFave, Israel, and
King, in their treatise on criminal procedures, conclude that:
The reasoning of [Ohio v.] Johnson probably
also allows the government, by objecting to a
defendants guilty plea to a lesser offense,
to defeat a defendants effort to head off
more serious charges that were not joined
with the lesser offense at the time of the
plea, but were known by the defendant to be
pending in another indictment or about to be
filed.[20]
We agree that the reasoning of Johnson precludes the
remedy that Kameroff requests in this case. Kameroff was well
aware of the felony charges that the government was pursuing.
The State also objected to having Kameroff enter a plea to the
misdemeanor charges in an attempt to preclude the State from
proceeding on the felony charges. We see no reason to allow
Kameroff to use the Double Jeopardy Clause as a sword to preclude
the State from pursuing the felony charges where he was fully
aware that the State was actively proceeding on those charges.
The superior courts order is REVERSED.
MANNHEIMER, Judge, concurring.
I write separately to describe more fully the legal
authorities that we found on the question of double jeopardy law
presented in this case. These authorities are summarized in the
2007 pocket part to Wayne R. LaFave, Jerold H. Israel, and Nancy
J. King, Criminal Procedure (2nd ed. 1999), 25.1, footnote 50 at
pp. 325-26.
Judge Coatss lead opinion describes the Second Circuits
decision in United States v. Quinones, 906 F.2d 924 (2nd Cir.
1990). The two significant aspects of Quinones are (1) that the
defendant knew, when he entered his guilty plea, that the
government intended to pursue other related charges, and (2) that
the government objected to the defendants change of plea. Id. at
926.
In Quinones, the defendant argued that the governments
delay in bringing the superseding indictment until after he pled
guilty to the original indictment offend[ed] the policy against
successive prosecutions for the same transaction. Id. at 928.
The Second Circuit rejected this argument, concluding that a
criminal defendant was barred from employing the double jeopardy
clause as a sword:
[T]he Supreme Court has made clear that
a criminal defendant is not entitled to use
the Double Jeopardy Clause as a sword. Ohio
v. Johnson, 467 U.S. 493, 502, 104 S.Ct.
2536, 2542, 81 L.Ed.2d 425 (1984); see also
Jeffers v. United States, 432 U.S. 137, 152-
54, 97 S.Ct. 2207, 2217-18, 53 L.Ed.2d 168
(1977).
In Jeffers, the [Supreme] Court rejected
a defendants claim of double jeopardy based
upon a guilty verdict on a lesser included
offense in the first of two successive trials
because the second trial resulted from the
defendants insistence that there be separate
rather than consolidated trials. 432 U.S. at
152-54, 97 S.Ct. at 2217-18. Similarly, in
Johnson, the Court held that where a trial
court accepts a defendants plea to lesser
included offenses over the prosecutions
objection, double jeopardy does not prevent
the government from prosecuting the defendant
on the remaining, greater offenses. 467 U.S.
at 501-02, 104 S.Ct. at 2542-43.
It is true that in both Johnson and
Jeffers unlike the present case the
prosecution initially combined its charges,
in one indictment in Johnson or in two
indictments handed down on the same day in
Jeffers. But, Quinones was nonetheless
trying to use the Double Jeopardy Clause as a
sword by insisting on a right to plead guilty
to the conspiracy and possession counts in
the face of government objection and
government notice of its intent to indict
appellant on the gun count. By pleading
guilty to the original indictment, appellant
thereby hoped to head off prosecution on the
gun count. The government was not insisting
on two chances to go after appellant; rather,
appellant himself precipitated the two
proceedings by the strategy of suddenly
tendering his plea to the conspiracy and
possession counts. ... Under these
circumstances, we do not believe that double
jeopardy principles bar the superseding
indictment.
Quinones, 906 F.2d at 928.
These same two factors characterize
the other cases cited in LaFave. Although
the courts in these other cases do not rely
on precisely the same reasoning as Quinones,
they all conclude that a defendant is not
entitled to use the double jeopardy clause as
a procedural weapon against the government
when (1) the defendant knows that the
government intends to pursue other related
charges, and (2) the defendant pleads guilty
to the lesser charges over the governments
objection or without the governments
knowledge. All of these courts conclude
that, in these circumstances, the defendants
guilty plea can not be used as a tactical
maneuver to deny the [government] ... one
full and fair opportunity to present [its]
evidence to an impartial jury. People v.
Jurado, 6 Cal.Rptr.2d 242, 252 (Cal. App.
1992), quoting Arizona v. Washington, 434
U.S. 497, 505; 98 S.Ct. 824, 830; 54 L.Ed.2d
717 (1978).
Kameroffs case shares the same two
factors that were present in Quinones and
these other cases: Kameroff knew that the
government intended to pursue a more serious
charge, and the government objected to
Kameroffs attempt to plead guilty to the less
serious charges that were currently pending.
I therefore conclude that the result in
Kameroffs case should be the same as the
result reached in Quinones and the other
cases cited in LaFave. Even if the district
court should have allowed Kameroff to plead
guilty to the pending misdemeanor assault
charges, Kameroff would not have the right to
use his guilty pleas as a double jeopardy
sword to cut off the States ability to pursue
the felony sexual assault charge.
_______________________________
1 See Criminal Rule 5(e).
2 93 P.3d 471 (Alaska App. 2004).
3 93 P.3d 471 (Alaska App. 2004).
4 Id. at 471.
5 Id. at 471-72.
6 Id. at 472.
7 Id.
8 Id.
9 467 U.S. 493, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984).
10 Johnson, 467 U.S. at 502, 104 S. Ct. at 2542-43.
11 Johnson, 467 U.S. at 502, 104 S. Ct. at 2542, quoted in
Ridlington v. State, 93 P.3d at 473.
12 Johnson, 467 U.S. at 501-02, 104 S. Ct. at 2542.
13 Ridlington, 93 P.3d at 473.
14 906 F.2d 924 (2nd Cir. 1990).
15 Id. at 928.
16 Id. at 926, 928.
17 Id. at 926.
18 Id. at 928.
19 Id.
20 5 Wayne R. LaFave, Jerold H. Israel, & Nancy J. King,
Criminal Procedure 25.1 at 326 (2d ed. Supp. 2007) (emphasis in
original).
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