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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rofkar v. State (4/20/2012) sp-6665
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SVEN ROFKAR, )
) Supreme Court No. S-14214
Petitioner, ) Court of Appeals No. A-10383
)
v. ) Superior Court No. 3PA-06-00754 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6665 - April 20, 2012
)
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer, Kari Kristiansen,
Judge.
Appearances: Dan S. Bair, Assistant Public Advocate, and
Richard Allen, Public Advocate, Anchorage, for Petitioner.
Ann B. Black, Assistant Attorney General, Anchorage, and
John J. Burns, Attorney General, Juneau, for Respondent.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Stowers,
Justices and Matthews, Senior Justice.*
PER CURIAM.
I. INTRODUCTION
Sven Rofkar grew a substantial quantity of marijuana in a house that he
rented. After the State Troopers searched the house, Rofkar was charged with four
* Sitting by assignment under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
----------------------- Page 2-----------------------
1
felonies. The charges were brought under separate subsections of AS 11.71.040; all
were designated as "misconduct involving a controlled substance in the fourth degree."
Specifically, Rofkar was charged with manufacturing one ounce or more of marijuana
in violation of subsection (a)(2); possessing one pound or more of marijuana in violation
of subsection (a)(3)(F);possessing 25 or more marijuana plants in violation of subsection
(a)(3)(G); and maintaining a dwelling for keeping a controlled substance in violation of
a felony offense, in violation of subsection (a)(5).
1 AS 11.71.040 provided in relevant part when Rofkar was charged:
(a) [A] person commits the crime of misconduct involving a
controlled substance in the fourth degree if the person
. . . .
(2) manufactures or delivers, or possesses with the
intent to manufacture or deliver, one or more
preparations, compounds, mixtures, or substances of
an aggregate weight of one ounce or more containing
a schedule VIA controlled substance;
(3) possesses
. . . .
(F) one or more preparations, compounds,
mixtures, or substances of an aggregate weight
of one pound or more containing a schedule
VIA controlled substance; or
(G) 25 or more plants of the genus cannabis;
. . . .
(5) knowingly keeps or maintains any store, shop,
warehouse, dwelling, building, vehicle, boat, aircraft,
or other structure or place that is used for keeping or
distributing controlled substances in violation of a
felony offense under this chapter or AS 17.30 . . . .
AS 11.71.190(b) provides: "Marijuana is a schedule VIA controlled
substance."
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----------------------- Page 3-----------------------
A jury found Rofkar guilty on all charges. The superior court merged the
two possession charges into the manufacturing charge, but refused to merge the
"maintaining" charge. Rofkar therefore stands convicted of two felonies.
The double jeopardy clause of the Alaska Constitution provides that "[n]o
person shall be put in jeopardy twice for the same offense."2 The underlying question
in this case is whether two convictions have been imposed on Rofkar for the "same
offense" within the meaning of this clause or whether he committed two crimes.
Rofkar raised this issue on appeal to the court of appeals. But the court of
appeals declined to consider it. Instead, the court held that its opinion in Davis v. State3
was controlling authority. Because Rofkar did not argue that Davis should be overruled
in his opening brief, although he did so in his reply brief, the court gave the double
jeopardy issue no further consideration.
We conclude that this case should be reviewed by the court of appeals on
the merits for two reasons. First, the double jeopardy issue was raised and not waived.
Second, it is not clear that Davis v. State was decided in accordance with the applicable
test for deciding double jeopardy claims set out in this court's opinion in Whitton v.
State .4 We explain these reasons below.
II. DISCUSSION
A. Double Jeopardy Was Raised.
Rofkar, in his opening brief to the court of appeals, clearly raised the issue
of whether his double jeopardy rights were violated. He argued that the test for
determining multiplicity that was first expressed by this court in Whitton v. State required
2 Alaska Const. art. I, § 9.
3 766 P.2d 41 (Alaska App. 1988).
4 479 P.2d 302 (Alaska 1970).
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merger of the maintaining count with the other previously merged counts.5 Rofkar also
5 The following quotation from the Whitton opinion summarizes the Whitton
test as well as the problem it was designed to solve and the procedures that should be
followed by trial courts when it is used:
The problem we are faced with has arisen by reason of
legislative division or refinement of what may be a unitary
criminal episode into a number of statutory offenses, with
differences based upon intent or means or method of
perpetration. In determining whether several statutory
violations constitute the same offense for double jeopardy
purposes, we will no longer follow the same-evidence test as
enunciated in Blockburger v. United States [284 U.S. 299
(1932)]. . . .
We now meet the problem in another way, with
confidence that it can be solved, by focusing upon the quality
of the differences, if any exist, between the separate statutory
offenses, as such differences relate to the basic interests
sought to be vindicated or protected by the statutes.
The trial judge first would compare the different
statutes in question, as they apply to the facts of the case, to
determine whether there were involved differences in intent
or conduct. He would then judge any such differences he
found in light of the basic interests of society to be vindicated
or protected, and decide whether those differences were
substantial or significant enough to warrant multiple
punishments. The social interests to be considered would
include the nature of personal, property or other rights sought
to be protected, and the broad objectives of criminal law such
as punishment of the criminal for his crime, rehabilitation of
the criminal, and the prevention of future crimes.
If such differences in intent or conduct are significant
or substantial in relation to the social interests involved,
multiple sentences may be imposed, and the constitutional
prohibition against double jeopardy will not be violated. But
(continued...)
-4- 6665
----------------------- Page 5-----------------------
discussed at some length federal authority on double jeopardy.
Despite this argument the court of appeals declined to consider the merits
of Rofkar's double jeopardy claim. After setting out a portion of the Whitton test the
court stated:
We previously applied this test in Davis v. State to determine
whether the double jeopardy clause prohibits separate
convictions for possession of cocaine with intent to deliver
and maintaining a dwelling for keeping or distributing
cocaine. We concluded that these offenses "differ markedly
in the conduct that they prohibit and in the specific social
interests that they seek to preserve." We therefore held that
the entry of separate convictions did not violate the
defendant's protection against double jeopardy.
In his reply brief, Rofkar asserts that the Davis case is
in error. But we are bound to follow a prior decision unless
we are "clearly convinced that the precedent is erroneous or
no longer sound because of changed conditions, and that
5(...continued)
if there are no such differences, or if they are insignificant or
insubstantial, then only one sentence may be imposed under
double jeopardy. Ordinarily the one sentence to be imposed
will be based upon or geared to the most grave of the
offenses involved, with degrees of gravity being indicated by
the different punishments prescribed by the legislature.
In the event the trial judge decides, under the test we
have established, that multiple sentences may be imposed
without contravening the double jeopardy provision, the
reasons for his determination must affirmatively appear in the
record. There should be a statement by the judge of the
relevant factual or other considerations which led him to such
a decision, in order that the constitutional legitimacy of the
multiple sentences may be fully reviewed on appeal.
Whitton, 479 P.2d at 312 (citations omitted).
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----------------------- Page 6-----------------------
more good than harm would result from overturning the
case." Because of the way that this issue has been raised, the
parties have not had the opportunity to argue whether the
Davis case should be overruled. We conclude that Rofkar
has failed to make the argument necessary for us to overrule
this precedent.[6]
In our view, when an appellant adequately raises an issue in an opening
brief, the fact that the appellant does not argue that important authority must be
overruled, or distinguished, until a reply brief does not justify refusing to consider the
issue on its merits. Instead, the court may sua sponte, or on motion of the appellee, grant
an opportunity for supplemental briefing. Here Rofkar's failure to discuss the Davis case
in his initial brief was poor advocacy, but it did not waive his double jeopardy claim.7
B. It Is Unclear Whether Davis Accords With The Whitton Test.
The dispositive language in the Davis opinion is as follows:
While Davis' violation of both statutes resulted from a single
course of action, the offenses differ markedly in the conduct
that they prohibit and in the specific social interests that they
seek to preserve. Davis' double jeopardy rights were not
infringed by the entry of separate convictions and sentences
on these charges. See State v. Dunlop, 721 P.2d 604, 607-08
(Alaska 1986).[8]
6 Rofkar v. State , Mem. Op. & J. No. 5683, 2011 WL 746439 at *12-13
(Alaska App., Mar. 2, 2011) (citations omitted).
7 The State raised Davis in the superior court in response to Rofkar's
argument based on Whitton. Thus, Rofkar's counsel knew that the State would be
relying on the case on appeal. This case does not therefore fall within the ethical rule
requiring the disclosure of directly applicable authority that has not been disclosed by
opposing counsel. See Alaska R. Prof. Conduct 3.3. Counsel's failure was not unethical,
but it was an unwise tactic from the standpoint of persuasion.
8 Davis , 766 P.2d at 46.
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----------------------- Page 7-----------------------
Davis thus cited State v. Dunlop rather than Whitton. But Dunlop decided
a separate question. The question in Dunlop was whether one or multiple crimes were
committed when a defendant by a single act injured or killed two or more people. In
9
Dunlop we concluded that in an earlier case, Thesson v. State, we had erred "in applying
Whitton to multiple violations of a single statute."10 Although Dunlop clarified that the
Whitton test does not apply where one statute has been violated by a single course of
conduct that results in multiple deaths or injuries, the Dunlop court made it clear that
Whitton would otherwise continue to apply.11
Further, the Davis opinion takes the form of a categorical ruling that
possession of illegal drugs and maintaining a dwelling used for keeping illegal drugs are
always separate crimes. But Whitton requires a comparison of the different statutes "as
they apply to the facts of the case, to determine whether there were involved differences
in intent or conduct."12 If case-specific differences in intent or conduct are found to
exist, then such differences must be evaluated in light of the "basic interests of society
to be vindicated or protected . . . ."13 If the court finds that "such differences in intent or
conduct are significant or substantial in relation to the social interests involved, multiple
sentences may be imposed," but if there are no such differences "or if they are
9 408 P.2d 1192 (Alaska 1973).
10 Dunlop , 721 P.2d at 608-09. Thesson held that only one homicide
conviction could be entered against a defendant who had set a fire that killed 14 people.
11 Id. at 608 n.17 ("We do not disturb our holding in Whitton here.").
12 479 P.2d 310, 312 (Alaska 1970) (emphasis added).
13 Id .
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insignificant or insubstantial," only one conviction can be imposed.14 It does not appear
from the text of the Davis decision that a comparison was made between the intent or
conduct involved in the different statutes as applied to the facts of the case. It is also not
evident that the legislative history underlying the maintaining subsection of
AS 11.71.040 was consulted to determine the social interests sought to be protected.
Finally, the court of appeals recognized in its Rofkar opinion the possibility
that "under some circumstances, Alaska's double jeopardy clause might be violated if
a defendant receives separate convictions for possessing drugs and for maintaining a
dwelling or building to keep those same drugs."15 The recognition of this possibility
seems inconsistent with the use of the Davis case as categorical contrary precedent.
III. CONCLUSION
For these reasons, we VACATE the decision of the court of appeals and
REMAND this case to the court of appeals for consideration of the issue whether
Rofkar's double jeopardy rights were violated by the entry of multiple convictions under
the facts and circumstances of this case.
14 Id.
15 Rofkar v. State , Mem. Op. & J. No. 5683, 2011 WL 746439 at *11 n.20
(Alaska App., Mar. 2, 2011) (citing Maness v. State , 49 P.3d 1128, 1139 (Alaska App.
2002) (Mannheimer, J., concurring)).
-8- 6665
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