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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BYRON CHARLES, Court of Appeals No. A-9623
Trial Court No. 1KE-05-765 Cr
Appellant, Supreme Court No. S-12944
v.
Response to the Supreme Court's
STATE OF ALASKA, Order of January 7, 2009
Appellee. [Opinion No. 2379 - October 19, 2012]
Appearances: Tracey Wollenberg, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for the
Petitioner. Timothy W. Terrell, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and
John J. Burns, Attorney General, Juneau, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
PER CURIAM.
COATS, Chief Judge, concurring.
In a petition for hearing currently pending before the Alaska Supreme
Court, Byron Charles challenges his conviction for failing to register as a sex offender
as required by Alaska's sex offender registration act, AS 12.63.
----------------------- Page 2-----------------------
(This Court affirmed Charles's conviction on direct appeal. See Charles
v. State, Alaska App. Memorandum Opinion No. 5277 (Nov. 28, 2007); 2007 WL
4227335.)
After Charles filed his petition for hearing, the supreme court issued its
decision in Doe v. State, 189 P.3d 999 (Alaska 2008). In Doe, the supreme court held
that the requirements of the sex offender registration act constitute "punishment" for
purposes of the ex post facto clause of the Alaska Constitution (Article I, Section 15), and
therefore the sex offender registration act can not lawfully be applied to defendants
whose offenses predate the effective date of the act (August 10, 1994). Id. 1018-19.
Charles committed his underlying sex offense in the 1980s, before the
enactment of the sex offender registration act. 1 The supreme court now confronts the
question of whether Charles is entitled to claim the benefit of the decision in Doe .
In an order dated January 7, 2009, the supreme court directed us to consider
certain questions relating to whether Charles can claim the benefit of Doe .
First, the supreme court asks us to address the issue of whether Charles has
waived any ex post facto challenge to the sex offender registration act - and, if so,
whether (as a legal matter) ex post facto challenges to a statute are ever waivable.
Second, the supreme court asks us to give our opinion as to whether Alaska
should modify the current rule governing the retroactivity of court decisions - the rule
announced in Judd v. State, 482 P.2d 273 (Alaska 1971) - by adopting the federal
principle of retroactivity announced by the United States Supreme Court in Griffith v.
Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987): the principle that new
1 See Charles v. State, Alaska App. Memorandum Opinion No. 1600 (April 27, 1988),
1988 WL 1511427, where this Court affirmed (on direct appeal) Charles's conviction for
second-degree sexual abuse of a minor.
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constitutional rulings should always be applied to all defendants whose convictions are
not yet final when the ruling is announced. 2
Finally, the supreme court asks for our opinion as to whether Charles's
conviction for failure to register as a sex offender should be set aside under the Griffith
principle of retroactivity.
Because the supreme court has directed us to consider these questions but
has not entered a final order with respect to Charles's petition for hearing, we do not
interpret the supreme court's order as giving this Court jurisdiction to independently
decide these issues. Rather, we believe that the supreme court has merely interrupted its
own consideration of Charles's case to seek our input and recommendations on these
issues.
Given the importance of these legal issues, not only for Charles's case but
for future cases as well, we asked the parties to file supplemental briefs on the questions
posed by the supreme court, and we thank the parties for their thoughtful input.
Because the supreme court has not asked us to decide these issues, but
rather to offer our analysis and advice, we have not written this response the way we
would normally craft a judicial opinion. Rather, our response is more in the nature of a
memorandum: we discuss the existing law, we discuss how that law might apply to the
issues potentially raised in Charles's case, and we discuss why the supreme court might
not need to resolve all of these legal issues in Charles's case.
2 For purposes of this discussion, a criminal conviction is "final" if there is no further
possibility of direct appellate review (including discretionary review) of the conviction. See
Beard v. Banks, 542 U.S. 406, 411; 124 S.Ct. 2504, 2510; 159 L.Ed.2d 494 (2004); Caspari
v. Bohlen, 510 U.S. 383, 390; 114 S.Ct. 948, 953; 127 L.Ed.2d 236 (1994); Smart v. State,
146 P.3d 15, 17 (Alaska App. 2006), reversed on other grounds in State v. Smart, 202 P.3d
1130 (Alaska 2009).
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Has Charles waived or forfeited any ex post facto claim?
The question of whether a person has "waived" a constitutional right is
somewhat ambiguous, because courts speak of waiver in two different contexts. On the
one hand, a person can "waive" a right by knowingly choosing to relinquish that right,
or by knowingly choosing not to exercise that right. On the other hand, courts often use
the term "waiver" when they refer to a person'sforfeiture of a right by failing to exercise
or claim the benefit of that right - even when the person has made no conscious
decision to forego the right, and has simply neglected to assert it.
As the State concedes, there is nothing in the record of this case to suggest
that Charles has ever knowingly chosen to forego his rights under the ex post facto
clause. Thus, there is no need to address the question of whether ex post facto rights are
"waivable" in this sense - i.e., no need to decide whether the law might allow a
defendant to knowingly choose to forego the protections of the ex post facto clause.
We note, however, that there are potentially instances where it might be to
a defendant's advantage to waive ex post facto rights. For instance, in the present case,
Charles was charged with "failure to register" as a sex offender even though, as a factual
matter, he did register. The problem was that he supplied a false address when he
registered. See Charles v. State, 2007 WL 4227335 at *1.
The State charged Charles with a class A misdemeanor under AS 11.56.-
840(a)(2). But under these circumstances, the State might conceivably have charged
Charles with a more serious crime. Under AS 12.63.010(e), the registration forms
required by Alaska's sex offender registration act "must be sworn to by the offender ...
and [must] contain an admonition that a false statement shall subject the offender ... to
prosecution for perjury."
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Perjury is a class B felony. 3 We can imagine that a defendant in Charles's
position might wish to forego their ex post facto defense to the misdemeanor charge of
"failure to register" in exchange for the government's promise not to pursue a perjury
prosecution. For this reason, we believe it would be inadvisable to rule that a defendant
can never voluntarily relinquish the protections afforded by the ex post facto clause.
(We note that this Court has already ruled that a defendant may knowingly
relinquish the protections of the double jeopardy clause. 4)
This leaves the issue of whether Charles may have forfeited his potential
ex post facto defense by failing to assert it until now.
Several federal and state courts have ruled that ex post facto protections can
be forfeited by failing to assert them. 5 Texas, however, has ruled that ex post facto
protections can be neither waived nor forfeited, because the ex post facto clause is "a
categorical prohibition directed by the people against their government". 6 The Texas
Court of Criminal Appeals reasoned that defendants should not be permitted to waive the
protections of the ex post facto clause "any more than they may consent to be imprisoned
for conduct which is not a crime." 7
3 AS 11.56.200(c).
4 See Dutton v. State, 970 P.2d 925, 931-32 (Alaska App. 1999).
5 See 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). But see United States v. Groves, 369 F.3d 1178, 1182 (10th
Cir. 2004) (holding that the defendant was entitled to challenge his sentence on ex post facto
grounds, even though he pleaded guilty, because he did not agree to a specific sentence, and
because he reserved the right to appeal any "illegal sentence" that might be imposed).
6 Leppert v. State , 908 S.W.2d 217, 220 (Tex. Crim. App. 1995).
7 Ibid.
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----------------------- Page 6-----------------------
However,even in jurisdictions where ex post facto protections areforfeited
by inaction, the fact that a defendant has forfeited an ex post facto claim by failing to
raise the claim in the trial court does not mean that the defendant is completely barred
from seeking relief. Appellate courts that apply a rule of forfeiture to an unpreserved ex
post facto claim generally still allow a defendant to litigate the claim on appeal under the
rubric of "plain error" or "manifest injustice". 8
We ourselves have repeatedly applied the plain error rule to claims of
constitutional error that were not properly preserved in the trial court proceedings -
most recently, in a series of sentencing cases arising from the United States Supreme
Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d
403 (2004).
In Blakely, the Supreme Court held that defendants are entitled to a jury
trial, and entitled to demand proof beyond a reasonable doubt, on any issue of fact which,
if found in the government's favor, would increase the maximum sentence for their
crime. Because Blakely announced a new rule of federal constitutional law, Griffith v.
Kentucky governed the retroactive application of Blakely. In other words, any defendant
whose conviction was not yet final (i.e., was still on direct review) at the time Blakely
was decided could retroactively claim the benefit of Blakely.
But even though any defendant whose appeal was still pending could
retroactively claim the benefit of Blakely, this Court repeatedly held that defendants who
failed to preserve a Blakely claim in the trial court had to demonstrate not only that
8 See United States v. Diaz-Diaz, 327 F.3d at 412; State v. Simnick, 779 N.W.2d at 339-
340; Mayers v. State , 42 So.2d at 44-45; United States v. Jones, 899 F.2d 1097, 1103 (11th
Cir. 1990) (holding that failure to raise an ex post facto objection will preclude consideration
of the point on appeal absent manifest injustice).
- 6 - 2379
----------------------- Page 7-----------------------
Blakely was violated in their case, but also that the Blakely violation amounted to plain
9
error.
This use of the phrase "plain error" actually refers to a concept that is
somewhat different from what courts normally mean when they say "plain error". A
claim of plain error typically includes an assertion that the lower court overlooked, or
failed to remedy, an error that would have been obvious to any competent judge. 10 But
when a claim of error rests on the retroactive application of a new constitutional rule, no
one can say that the trial court judge failed to perceive an obvious error - because, at
the time of the lower court proceedings, the law was different.
In such cases, the notion of "plain error" is retrospective. 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 proceedings, and that failure to correct this flaw would perpetuate
manifest injustice.
Thus, for instance, this Court repeatedly held that even though a defendant
was wrongfully deprived of a jury trial on an aggravating factor that increased the
permissible maximum sentence for the defendant's crime, this Blakely violation did not
constitute plain error when the evidence concerning the existence of the aggravator was
not subject to reasonable dispute - in other words, when there was no reasonable
9 See Twogood v. State, 223 P.3d 641, 651 (Alaska App. 2010); Malutin v. State , 198
P.3d 1177, 1184 (Alaska App. 2009); Lockuk v. State , 153 P.3d 1012, 1017-18 (Alaska App.
2007); McDole v. State , 121 P.3d 166, 170 (Alaska App. 2005); Haag v. State, 117 P.3d 775,
783 (Alaska App. 2005).
10 See, e.g., Adams v. State , 261 P.3d 758, 773 (Alaska 2011).
- 7 - 2379
----------------------- Page 8-----------------------
possibility that a jury would have found in the defendant's favor even if the issue had
been submitted to a jury. 11
In the present case, even though the State argues that Charles has forfeited
his ex post facto claim by failing to raise an ex post facto argument in the trial court, the
State acknowledges that Charles may still pursue his ex post facto claim under the rubric
of plain error - and that Charles would be entitled to relief if he can show that there was
a "clear" violation "of [his] substantial rights" that prejudiced "the [fundamental] justice
or integrity of the proceedings".
It is undisputed that Charles committed his underlying sex offense before
the legislature enacted Alaska's sex offender registration law. Thus, even though
Charles failed to raise an ex post facto objection in the trial court, he would nevertheless
be entitled to relief from his failure-to-register conviction if (1) the supreme court's
decision in Doe applies retroactively to Charles, and if (2) the prosecution of Charles for
failure to register as a sex offender, in violation of the ex post facto clause, amounts to
"plain error" - that is, if the ex post facto violation was "so prejudicial to the fairness
of the proceedings that ... failure to correct it would perpetuate manifest injustice." 12
The State's arguments that there is no plain error in Charles's case
because (1) Doe was wrongly decided, or (2) Doe is not binding precedent
Before proceeding further, we must address two arguments that the State
raises. Both of these arguments are aimed at showing that, regardless of the law
pertaining to retroactivity, Charles is not entitled to relief.
11 See, e.g., Active v. State , 153 P.3d 355, 367 (Alaska App. 2007); Milligrock v. State ,
118 P.3d 11, 17 (Alaska App. 2005).
12 Adams v. State , 261 P.3d 758, 764 (Alaska 2011).
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----------------------- Page 9-----------------------
First, the State argues that Doe was wrongly decided.
Second, the State argues that, even if Doe was correctly decided, it is not
"precedent" - that is, it does not establish a rule of decision for other cases - because
only three members of the supreme court participated in Doe (a bare quorum under
Appellate Rule 105(a)), and because Doe was decided by a two-to-one vote.
The State relies on Appellate Rule 106(b), which was enacted by the
supreme court in the summer of 2011, three years after the court issued its decision in
Doe . 13 Under Rule 106(b), a two-to-one decision of the supreme court applies only to
the resolution of that particular appeal, "and [does] not have precedential effect".
The State argues that Appellate Rule 106(b) has retroactive effect - that
the enactment of this rule stripped Doe of its status as binding precedent. Accordingly,
the State argues that, regardless of the law governing the retroactivity of court decisions,
neither Charles nor any other defendant is entitled to relief based on Doe .
For two reasons, we decline to address the State's arguments.
First, these issues fall outside the scope of the questions presented to us in
the supreme court's order of January 7, 2009. Indeed, with regard to the State's
argument based on Appellate Rule 106(b), we note that the supreme court's directive to
this Court was issued two and a half years before the supreme court enacted Appellate
Rule 106(b).
Second, because Charles's case is still pending before the supreme court,
and because the supreme court is about to resume active consideration of Charles's case,
it seems to us that there would be little value in having this Court offer an opinion on the
underlying merits of the decision in Doe, or in having this Court try to assess how the
supreme court would interpret Appellate Rule 106(b) as it relates to Doe .
13 See Supreme Court Order No. 1759 (both dated and effective July 21, 2011).
- 9 - 2379
----------------------- Page 10-----------------------
(CompareAS22.05.015(b), which authorizes this Courttoask thesupreme
court to assume jurisdiction of a case that would normally be within this Court's
jurisdiction if "the case involves ... an issue of substantial public interest that should be
determined by the supreme court.")
We now return to the issues raised in the supreme court's order.
Should Alaska adopt the retroactivity rule set forth in Griffith v. Kentucky?
The supreme court has asked for our opinion as to whether Alaska should
modify our current rule governing the retroactivity of court decisions - the rule
announced in Judd v. State, 482 P.2d 273 (Alaska 1971) - by adopting the federal
principle of retroactivity announced by the United States Supreme Court in Griffith v.
Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).
Under the current Judd rule, the issue of retroactivity is assessed by
weighing three factors: (1) the purpose to be served by the new rule; (2) the extent to
which law enforcement authorities have relied on the old rule; and (3) the degree to
which retroactive application of the new rule would disrupt the administration of
justice. 14 Under Griffith, on the other hand, any new constitutional rule must be applied
to all defendants whose convictions are still on direct review at the time the rule was
announced. 15
Charles's supplemental brief to this Court contains a lengthy discussion of
the problems and potential injustices created by the Judd rule, and the benefits of the
14 Judd v. State , 482 P.2d 273, 278 (Alaska 1971) (adopting the retroactivity standard
formerly employed by the federal courts under Linkletter v. Walker , 381 U.S. 618, 85 S.Ct.
1731, 14 L.Ed.2d 601 (1965)).
15 Griffith, 479 U.S. at 328, 107 S.Ct. at 716.
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----------------------- Page 11-----------------------
Griffith rule. The State agrees that "there may be reasons for rejecting the ... Judd
standard."
However, as we explain in the next section of this response, we conclude
that our supreme court's decision in Doe must be applied retroactively to Charles under
either Alaska's current Judd rule of retroactivity or the Griffith rule of retroactivity. We
therefore conclude that there is no immediate need for the supreme court to decide
whether to adopt the Griffith principle of retroactivity.
Although all members of this Court agree that thereis no need to decide this
question of retroactivity law, Judge Coats has written a concurring opinion in which he
discusses the perceived advantages of the Judd rule over the Griffith rule. For this
reason, we (the other two members of this Court) believe that it is worthwhile to mention
the policies that led the United States Supreme Court to adopt the Griffith rule.
Initially, the federal test for retroactivity was the same as our Judd test -
because the Judd rule of retroactivity was taken directly from the rule formulated by the
United States Supreme Court in Linkletter v. Walker, 381 U.S. 618, 636; 85 S.Ct. 1731,
1741; 14 L.Ed.2d 601 (1965), and reiterated two years later inStovall v. Denno, 388 U.S.
293, 297; 87 S.Ct. 1967, 1970; 18 L.Ed.2d 1199 (1967). As we have explained, under
this test, the retroactivity of a court decision is assessed by weighing the purpose of the
new rule, the degree to which people reasonably relied on the old rule, and the degree
to which retroactive application of the new rule would disrupt the administration of
justice.
Originally, the Linkletter / Stovall rule of retroactivity applied equally to
defendants whose convictions were still being challenged on direct review when the new
- 11 - 2379
----------------------- Page 12-----------------------
rule was announced, and to defendants whose convictions had already become final. 16
But in United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982),
the Supreme Court reconsidered this unified approach to retroactivity and declared that
different policies should govern the assessment of whether a new rule should apply
retroactively to defendants whose convictions were not yet final when the decision was
announced. Id., 457 U.S. at 548, 102 S.Ct. at 2586.
In particular, the Supreme Court adopted the view that, after a new rule has
been announced in one defendant's case, that same rule must be applied to any "similarly
situated defendant" whose conviction is not yet final unless there is "a principled reason
for acting differently." Id., 457 U.S. at 561-62, 102 S.Ct. at 2593. 17
In its Johnson decision, the Supreme Court allowed one major exception
to this principle that new rules should be applied retroactively to all defendants whose
cases were currently pending on direct review at the time the rule was announced: the
Supreme Court declared that a new rule would not be applied retroactively if the new
rule constituted a "clear break" from the Court's past precedents. Id., 457 U.S. at
549-550, 102 S.Ct. at 2586-2587.
But five years later, in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708,
93 L.Ed.2d 649 (1987), the Supreme Court abandoned this "clear break" exception and
declared that all new rules would apply retroactively to defendants whose convictions
were not yet final when the new rule was announced.
In Griffith, the Supreme Court concluded that it was fundamentally unfair
to "fish[] one case from the stream of appellate review" and employ that case "as a
16 See Johnson v. New Jersey, 384 U.S. 719, 732; 86 S.Ct. 1772, 1780; 16 L.Ed.2d 882
(1966); Stovall v. Denno, 388 U.S. at 300, 87 S.Ct. at 1971.
17 Quoting Justice Harlan's dissenting opinion in Desist v. United States, 394 U.S. 244,
258; 89 S.Ct. 1030, 1038; 22 L.Ed.2d 248 (1969).
- 12 - 2379
----------------------- Page 13-----------------------
vehicle for announcing new constitutional standards", but then refuse to apply the new
standards to all the other defendants who were waiting for their appeals to be heard. Id.,
479 U.S. at 323, 107 S.Ct. at 713. The Court concluded that a refusal to apply the new
rule to all defendants whose convictions were not yet final would create an unacceptable
inequity - because one defendant (the defendant whose case was chosen by the
appellate court as a vehicle for announcing the new rule) would be the "chance
beneficiary" of the new rule, while all other similarly situated defendants would see their
same claims denied. 479 U.S. at 323 & 327; 107 S.Ct. at 713 & 715.
The Supreme Court acknowledged that, when a new rule constitutes a
"clear break" from earlier precedent, the second and third Linkletter factors -
reasonable reliance on the old rule, and the probable adverse effect on the administration
of justice - were likely to weigh heavily against retroactive application. Griffith, 479
U.S. at 326-27, 107 S.Ct. at 715. Nevertheless, the Court concluded that, even in such
instances, it was unacceptably unfair to fail to apply a new rule retroactively to all
defendants whose cases were still on direct appeal. Id., 479 U.S. at 327-28, 107 S.Ct. at
715-16.
We acknowledge that almost any rule of limited retroactivity carries the
seeds of arbitrariness and unfairness. For instance, Griffith declares that there is one rule
of retroactivity for defendants who are still seeking appellate review of their convictions
when a new rule is announced, and another rule of retroactivity for defendants whose
convictions are already final when the new rule is announced. This means that an
appellate court is required to apply the new rule retroactively to all defendants who are
still waiting for the decision of their petition for hearing (in our state court system) or
their petition for certiorari (in the federal system), but to deny retroactive application to
defendants whose petitions for discretionary review were denied just a few days earlier.
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----------------------- Page 14-----------------------
Moreover, in the case of new rules that are a "clear break" from earlier
precedent, the Griffith rule means that some defendants will be denied relief because
(1) they raised the same claim on direct appeal but lost, and then (2) they failed to pursue
a petition for discretionary review after their attorney advised them - competently -
that they had little or no chance of prevailing on such a claim.
As we explained earlier, we conclude that Charles's case does not require
our supreme court to decide whether to adopt the Griffith rule of retroactivity - because
Charles is entitled to retroactive application of the Doe decision regardless of whether
our supreme court applies the Griffith rule or the current Judd rule. We have presented
this extensive examination of Griffith, not in an effort to convince our supreme court to
adopt the Griffith rule of retroactivity, but rather to elucidate the scope of the Griffithrule
and the policies behind it, so as to round out the thoughtful views expressed by Judge
Coats in his concurrence.
We additionally note - for purposes of clarification - that even if Alaska
adopted the Griffith rule, this would not necessarily entail a complete abrogation of
Alaska's current Judd rule of retroactivity.
Under Griffith, anewruleapplies retroactivelytodefendantswhoseconvic-
tions are not yet final at the time the new rule is announced. But Griffith does not answer
the question of whether a new rule should be applied retroactively to defendants whose
convictions are already final when the new rule is announced.
Under federal law, this latter situation is governed by the rule of
retroactivity announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
334 (1989). Under Teague, a new rule will be applied completely retroactively (that is,
even to defendants whose convictions are already final) only if the new rule is a rule of
substantive law (i.e., a rule that limits the authority of the government to prosecute or
punish certain conduct), or if the new rule is a "watershed" procedural rule that
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----------------------- Page 15-----------------------
implicates the fundamental fairness of the criminal proceeding or the fundamental
accuracy of the fact-finding process.
The scope of the Teague retroactivity rule is explained in Smart v. State
(Smart I), 146 P.3d 15 (Alaska App. 2006):
Under ... Teague, a [judicial] decision creates a new
rule "when it breaks new ground or imposes a new obligation
on the States or the Federal Government." [Teague, 489 U.S.
at 301, 109 S.Ct. at 1070.] When the [judicial] opinion
creates a new rule, the rule applies to previously final
judgments only in limited circumstances. For example, new
substantive rules which decriminalize a class of conduct or
prohibit capital punishment for a class of defendants
generally apply [completely] retroactively. These new
substantive rules apply retroactively because there is a risk
that the defendant was convicted for an act that is not
criminal or [that the defendant] faces a punishment that is not
allowed by law. However, new procedural rules generally do
not apply retroactively. New procedural rules merely raise
the possibility that someone convicted with the use of the
invalidated procedure might have been acquitted otherwise.
Because of this more speculative connection to innocence,
[the courts] give retroactive effect to only a small set of
watershed rules of criminal procedure implicating the
fundamental fairness and accuracy of the criminal
proceeding.
Smart I, 146 P.3d at 40 (concurring opinion ofJudgeStewart) (omitting several footnotes
that cite, or quote from, the United States Supreme Court's decision in Schriro v.
Summerlin, 542 U.S. 348, 351-52; 124 S.Ct. 2519, 2522-23; 159 L.Ed.2d 442 (2004)).
But the states are not required to follow the Teague rule of retroactivity, so
long as their rules of retroactivity are at least as protective of defendants' federal rights
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----------------------- Page 16-----------------------
as the Teague rule. 18 And Alaska law is currently unsettled as to what rule of
retroactivity governs situations where a defendant's conviction is already final when a
new rule is announced.
The Judd rule is the Alaska Supreme Court's last pronouncement on this
question, and this is the rule that the supreme court applied in State v. Smart (Smart II),
202 P.3d 1130, 1138-39 (Alaska 2009), its most recent decision addressing the question
of retroactivity.
However, AS 12.72.010(7) - a portion of the statute governing the scope
of post-conviction relief in Alaska - contains a different set of rules that govern the
retroactivity of judicial decisions when these decisions are invoked for the purpose of
collaterally attacking a criminal conviction that is already final. In prior appellate
litigation, the State has taken the position that AS 12.72.010(7) was intended to codify
the Teague rule of retroactivity, and thus the Teague test is the governing rule of
retroactivity for post-conviction relief litigation in Alaska. 19
As this Court noted in Smart I, 146 P.3d at 29, the conflict between the
Judd rule and the provisions of AS 12.72.010(7) potentially raises a question under the
doctrine of separation of powers: specifically, whether the legislature's enactment of
rules governing the retroactivity of judicial decisions improperly encroaches on a matter
entrusted to the judicial branch. However, there is no need to resolve this question,
because it is moot under the facts of Charles's case - since Charles's conviction is not
yet final.
18 See Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008).
19 See Smart v. State (Smart I), 146 P.3d at 29; State v. Smart (Smart II), 202 P.3d at
1148.
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----------------------- Page 17-----------------------
We do note, however, that the Alaska Supreme Court has declared that the
Judd rule of retroactivity is at least as protective of defendant's rights as the Teague rule.
This issue came up in Smart II.
The primary question presented in Smart II was whether the right to jury
trial announced in Blakely v. Washington should be applied retroactively to defendants
whose convictions were already final when Blakely was decided. Our supreme court
recognized that, because Blakely announced a new rule of federal law (an expansion of
the scope of the Sixth Amendment right to jury trial), state courts were obliged to make
Blakely retroactive at least to the extent guaranteed by the Teague test. 20
But rather than adopting the Teague test as the standard for retroactivity
under Alaska law, the supreme court adhered to the Judd test. The supreme court was
able to do this because the court declared that the Judd rule of retroactivity was at least
as protective of defendants' rights as the Teague test. Smart II, 202 P.3d at 1138-39.
Why we conclude that Charles is entitled to retroactive application of the
Doe decision under the Judd rule of retroactivity as well as the Griffith rule
of retroactivity
Under the Griffith rule of retroactivity, constitutional decisions must be
applied retroactively to all defendants whose convictions are not yet final at the time the
decision is announced. Although this Court had already affirmed Charles's conviction
on direct appeal when the Alaska Supreme Court announced its decision in Doe, Charles
was still in the process of petitioning the supreme court to review this Court's affirmance
of his conviction. Thus, Charles's conviction was not yet final when the supreme court
20 Smart II, 202 P.3d at 1136: "[The United States Supreme Court's decision in]
Danforth [v. Minnesota] allows us to apply either the Teague test ... or a state constitutional
test[,] so long as the state test is at least as comprehensive as the [Teague] test."
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issued its decision in Doe. 21 Under the Griffith rule, it is clear that Charles would be
entitled to retroactive application of the Doe decision.
Although the question of retroactivity is more complicated under the Judd
test, the result is the same. As we are about to explain, the Doe decision would be given
full retroactivity under the Teague test (if the Doe decision rested on federal law). And
because, in Smart II, our supreme court declared that the Judd test was at least as
protective of defendants' rights as the Teague test, it follows that Doe should receive full
retroactivity under Judd .
To back up a bit: The Judd test for deciding whether a new rule should be
applied retroactively involves the weighing of three factors: (1) the purpose to be served
by the new rule; (2) the extent to which law enforcement authorities have relied on the
old rule; and (3) the disruptive effect that retroactive application of the new rule would
have on the administration of justice. 22
However, our supreme court has declared that the first Judd factor - the
purpose to be served by the new rule - will take precedence over the other two factors,
and will require retroactive application of a new constitutional rule, if the primary
purpose of the new rule is to enhance the truth-finding function of criminal trials, thus
helping to ensure fair and accurate verdicts. Rutherford v. State, 486 P.2d 946, 952-53
(Alaska 1971).
The new rule at issue in the present case -the Doe court's pronouncement
that sex offender registration is a "punishment" for purposes of Alaska's ex post facto
21 See Alaska Appellate Rules 507(b) and 512(a)(2). And see footnote 6 of Griffith v.
Kentucky, 479 U.S. at 321, 107 S.Ct. at 712.
22 Judd v. State , 482 P.2d 273, 278 (Alaska 1971) (adopting the retroactivity standard
formerly employed by the federal courts under Linkletter v. Walker , 381 U.S. 618, 85 S.Ct.
1731, 14 L.Ed.2d 601 (1965)).
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clause - is not a rule that enhances the truth-finding function of criminal trials.
However, the Doe rule is likewise aimed at protecting defendants fromunjust conviction
and punishment.
Under our tripartite system of government, it is the legislative branch that
defines crimes and establishes the punishments for those crimes. 23 The Alaska Supreme
Court has explicitly recognized this principle:
Save only as limited by constitutional safeguards, the
legislature may choose any reasonable means to protect the
people from the violation of criminal laws. In general, the
comparative gravity of offenses and their classification and
resultant punishment is for legislative determination.
Alex v. State , 484 P.2d 677, 685 (Alaska 1971) (citation omitted).
But the ex post facto clause is one of the constitutional safeguards that
limits the legislature's authority in this area. With respect to criminal punishments, the
ex post facto clause strictly forbids the legislature from "impos[ing a] punishment more
severe than the punishment [that was] assigned by law [to the offense] when the
[defendant committed the] act to be punished". Weaver v. Graham, 450 U.S. 24, 30; 101
S.Ct. 960, 965; 67 L.Ed.2d 17 (1981), quoted with approval in State v. Creekpaum, 753
P.2d 1139, 1141 (Alaska 1988).
As explained in Weaver and in Creekpaum, the constitutional prohibition
on ex post facto punishments is not premised on an individual defendant's right to a
lesser punishment. Rather, the ex post facto clause is a restraint on the authority of the
legislatureitself: thelegislatureisforbiddenfrom"increas[ing]punishmentbeyond what
23 See Malloy v. State, 1 P.3d 1266, 1282 (Alaska App. 2000).
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----------------------- Page 20-----------------------
was prescribed when the crime was consummated." Weaver, 450 U.S. at 30, 101 S.Ct.
at 965; Creekpaum, 753 P.2d at 1141.
Because the Alaska Supreme Court, in Doe, declared that sex offender
registration is a "punishment" for ex post facto purposes, it necessarily follows that it is
unjust - in a fundamental, constitutional sense - to impose that punishment on any
defendant whose offense predates the enactment of the sex offender registration law.
Accordingly, this appears to be the type of situation where the first Judd factor
takes precedence over other considerations and demands retroactive application of Doe .
Moreover, even if we applied the presumedly more restrictive federal test
for retroactivity announced in Teague v. Lane, 24 our supreme court's decision in Doe
would be given complete retroactive effect.
The Teague rule of retroactivity is premised on the principle that if a
criminal conviction has become final, and if the litigation of that criminal case took place
in compliance with the law that was in existence at the time, then there should be very
few circumstances which compel a re-examination of the criminal judgement based on
new developments in constitutional law. 25 Under Teague, a retroactive attack on a final
criminal judgement is allowed only if (1) the new constitutional rule is a substantive rule
that "[puts] certain kinds of primary, private individual conduct beyond the power of [the
states to regulate through criminal legislation]", or if (2) the new constitutional rule is a
"watershed" procedural rule that "requires the observance of ... procedures that are
implicit in the concept of ordered liberty". 26
24 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
25 Smart v. State, 146 P.3d at 20-21.
26 Teague, 489 U.S. at 307, 109 S.Ct. at 1073 (quoting Justice Harlan's concurring and
dissenting opinion in Mackey v. United States , 401 U.S. 667, 692-93; 91 S.Ct. 1171, 1180;
28 L.Ed.2d 404 (1971)).
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But even under the restrictions of the Teague test, our supreme court's
decision in Doe qualifies for retroactive application.
By holding that sex offender registration is "punishment" for ex post facto
purposes, our supreme court held that the legislature had no authority to order sex
offenders to comply with the registration requirements if their underlying offenses
predated the enactment of the law. This constitutional ruling falls within Teague's first
prong: a new constitutional rule that puts certain kinds of conduct beyond the power of
the legislature to regulate through criminal legislation.
The United States Supreme Court addressed this issue in Schriro v.
Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004):
New substantive rules generally apply retroactively
[under the Teague test]. This includes decisions that narrow
the scope of a criminal statute by interpreting its terms, as
well as constitutional determinations that place particular
conduct or persons covered by the statute beyond the State's
power to punish ... . Such rules apply retroactively because
they necessarily carry a significant risk that a defendant
stands convicted of an act that the law does not make criminal
or faces a punishment that the law cannot impose upon him.
Summerlin, 542 U.S. at 351-52, 124 S.Ct. at 2522-23 (citations, internal quotations, and
a footnote omitted).
See United States v. Dashney, 52 F.3d 298, 299 (10th Cir. 1995) (holding
that, under Teague, a defendant could seek retroactive application of a new judicial
interpretation of a criminal statute that altered the generally accepted elements of the
crime); United States v. Shelton, 848 F.2d 1485, 1488-1490 (10th Cir. 1988) (en banc)
(holding that, under Teague, a defendant was entitled to retroactive application of a
substantive (but non-constitutional) decision concerning the reach of a federal statute);
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----------------------- Page 22-----------------------
Ingber v. Enzor, 841 F.2d 450, 453-54 (2nd Cir. 1988) (same); Magnuson v. United
States, 861 F.2d 166, 167 (7th Cir. 1988) (same); Webster v. Woodford, 369 F.3d 1062,
1068-69 (9th Cir. 2004) (holding that, under Teague, a defendant could pursue a due
process / ex post facto challenge to a new and expanded judicial interpretation of a
sentencing statute).
The fact that our supreme court's decision in Doe qualifies for retroactive
application under the Teague test means that Doe qualifies for retroactive application
under the Judd test - because, in Smart II, 202 P.3d at 1138-39, our supreme court
declared that the Judd rule of retroactivity was to be construed as being at least as
protective of defendants' rights as the Teague test.
Thus, even under Alaska's current rule of retroactivity (the Judd test),
Charles is entitled to retroactive application of Doe. Accordingly, even though the
Griffith rule of retroactivity has much to recommend it, we conclude that the resolution
of Charles's case does not require the supreme court to decide whether to adopt the
Griffith rule.
If the ex post facto clause bars retrospective application of a criminal
statuteto a defendant, does convicting a defendant for violating thatstatute
constitute "plain error"?
Even though we conclude that Charles is entitled to retroactive application
of the Doe decision, the fact remains that Charles did not raise an ex post facto argument
during his trial court proceedings, so he is not entitled to relief unless he demonstrates
plain error. That is, Charles must show that the ex post facto error in his case was
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----------------------- Page 23-----------------------
"so prejudicial to the fairness of the proceedings that ... failure to correct it would
perpetuate manifest injustice." 27
ItisundisputedthatCharles'sunderlying sex offensewas committed before
the sex offender registration act took effect. Thus, Charles stands convicted of violating
a criminal statute which, under our state constitution, can not apply to him. This is a
manifest injustice.
The record does not suggest that Charles had any tactical reason for
deliberately withholding an ex post facto challenge to his prosecution and conviction.
Accordingly, we conclude that Charles has shown plain error.
See Mayers v. State, 42 So.3d 33, 44-45 (Miss. App. 2010) (holding that
a conviction in violation of the ex post facto clause is plain error); State v. Clemons,
unpublished, 2011 WL 861847, *4 (Ohio App. 2011) (same); People v. Barnes,
unpublished, 2010 WL 4970759, *4 (Mich. App. 2010) (holding that imposition of
increased punishment in violation of the ex post facto clause is plain error); State v.
Simnick, 779 N.W.2d 335, 342 (Neb. 2010) (same); State v. Houston, unpublished, 2009
WL 130189, *8 (Tenn. Crim. App. 2009) (same).
Conclusion
For thereasonsexplained here, werecommend that the supreme court grant
relief to Charles on the basis of the court's decision in Doe . The Clerk of the Appellate
Courts is directed to transmit this response to the supreme court.
27 Adams v. State , 261 P.3d 758, 764 (Alaska 2011).
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COATS, Chief Judge concurring.
I agree with my colleagues that it is not necessary for the Alaska Supreme
Court to decide in this case whether to adopt the rule of retroactivity announced by the
United States Supreme Court in Griffith v. Kentucky. 1 For the reasons explained in the
majority opinion, our Supreme Court's decision in Doe v. State 2 applies retroactively
under any of the three potential rules of retroactivity: the Griffith rule, the Judd rule, or
the Teague rule.
The very fact that there is no present need to decide whether to adopt the
Griffith rule is a strong reason not to decide this issue. In my view, the parties to a case
do a better job of briefing, and an appellate court does a better job of deciding, when the
issue to be decided is important to the proper resolution of the case. Easy cases, as well
as hard cases, create the risk of making bad law.
Moreover, there are reasons to favor our current rule of retroactivity - the
Judd rule - over the rule announced in Griffith. One strong argument in favor of Judd
is that Judd allows a court to weigh various factors in deciding the extent to apply a new
rule retroactively. And there may be cases in which the retroactive application of a new
rule could have a negative impact on law enforcement and the administration of justice.
For instance, in State v. Glass, 3 the Alaska Supreme Court, applying the Judd test, held
that the new rule requiring the police to obtain a warrant before monitoring or recording
a conversation would apply prospectively - only to those cases where the monitoring
or recording took placeafter theSupremeCourtannounced thenewwarrant requirement.
1 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).
2 189 P.3d 999 (Alaska 2008).
3 596 P.2d 10 (Alaska 1979).
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Thereis something to be said for retaining the flexibility of the retroactivity
rule in Judd, which allows the court to determine retroactivity on a case-by-case basis,
weighing the impact of a new rule of law. In Glass, the Supreme Court concluded that
law enforcement officials had reasonably relied on pre-Glass law, that they could not
have been expected to foresee the Glass decision, and that their actions "were entirely
reasonable and in good faith." 4 The court concluded that "[i]f the rule in Glass were
given complete retroactivity so that it would apply to cases already completed, the
negative effect on the administration of justice would be substantial." 5 The court noted
that, if the Glass rule were applied retroactively, it would impact a number of cases. 6
Many of the cases could have involved serious crimes and would have been harder to
prove without the tape recorded conversations.
The court reasoned that where the police and prosecuting agencies have
reasonably relied upon previously established law, retroactive application of a new rule
of law ran the risk of creating disrespect for the legal system:
Practical problems arise from the undisputed fact that the
police, prosecuting agencies and the public have relied upon
the previous statements of the law, and that the great impact
of and respect for the law in our society is based on such
acceptance by the public generally. A change for the future
can be digested but 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
4 Glass, 596 P.2d at 14.
5 Id. (citations omitted).
6 Id. at 15.
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theory except one of gamesmanship with corresponding
disrespect for our whole system of laws. 7
There is a strong argument that the Supreme Court was correct when it
decided to limit the retroactivity of the new rule in State v. Glass. Judd enabled the court
to have the flexibility to consider the impact of its decision on the administration of
justice to reach a just result. The principle of retroactivity announced by the United
States Supreme Court in Griffith v. Kentucky would not have allowed the Alaska
Supreme Court to weigh the impact of its decision as it was able to do by applying the
rule in Judd . There is a considerable risk in abandoning the flexibility of the Judd
retroactivity rule, and the court should not lightly abandon that decision, particularly in
a case which does not require reaching that issue.
7 Id. at 14 (quoting Judd v. State , 482 P.2d 273 at 278-79 (Alaska 1971)).
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