Johnson v. State
| Decision Date | 27 June 2014 |
| Docket Number | No. S–14557.,S–14557. |
| Citation | 328 P.3d 77 |
| Parties | Nathawn Katurl JOHNSON, Petitioner, v. STATE of Alaska, Respondent. |
| Court | Alaska Supreme Court |
OPINION TEXT STARTS HERE
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Petitioner.
Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions & Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Respondent.
Before: FABE, Chief Justice, WINFREE, STOWERS, and MAASSEN, Justices.
Nathawn Katurl Johnson was convicted of and sentenced for, among other crimes, two counts of sexual assault in the first degree relating to his rape of S.S. One count resulted from Johnson's penetration of S.S.'s mouth without her consent, and the other count resulted from Johnson's penetration of S.S.'s vagina without her consent. Johnson never argued to the superior court that the two counts must merge on double-jeopardy grounds. After Johnson made the double-jeopardy argument for the first time on appeal, the court of appeals held that Johnson had not preserved his merger argument for appeal and that the superior court did not commit plain error by failing to merge the counts sua sponte.
On petition, Johnson argues that the court of appeals erred by denying his late-raised double-jeopardy argument full appellate review on the merits. We agree, and we review Johnson's double-jeopardy claim on its merits. Johnson also argues that his separate convictions on two counts of sexual assault in the first degree violate the state and federal prohibitions on double jeopardy. Because we conclude that Johnson's separate convictions and sentences did not violate the constitutional prohibitions on double jeopardy, we affirm.
On July 11, 2007, Nathawn Katurl Johnson kidnapped and sexually penetrated S.S. without her consent. After luring her to a trailer park with a false promise of a job interview, forcing her inside an abandoned trailer at knife point, and holding a knife at her temple once they were inside, Johnson forced S.S. to perform oral sex. Johnson then ordered S.S. to lie down and remove her clothing, and Johnson proceeded to have non-consensual vaginal intercourse with S.S. while continuing to hold the knife to her temple.
A grand jury indicted Johnson on four counts stemming from the events of that day, including one count of kidnapping,1 one count of assault in the third degree,2 and two counts of sexual assault in the first degree. 3 The two counts of sexual assault were based on Johnson's non-consensual sexual penetration of S.S.'s mouth and vagina. A jury convicted Johnson of all four counts. Johnson was sentenced to a total consecutive term of imprisonment of fifty-seven years, five months, and two days, followed by fifteen years of probation. This sentence included separate punishments for the two counts of sexual assault in the first degree.
Johnson never explicitly argued in the trial court that the sexual assault counts must merge on double-jeopardy grounds.4 Instead, Johnson argued that “the Court ... could have the discretion to merge ... the two sex assaults.” The superior court responded, “I don't think I have any authority at all to merge the second sexual assault with the first sexual assault” under the relevant statute. Johnson responded, “[O]bviously I'd have to make the argument that [that] statute's unconstitutional.” This exchange never mentioned double jeopardy, and Johnson's reference to the statute's potential unconstitutionality may have referred to his earlier argument that a sentence of close to 60 years imprisonment would violate the constitutional prohibition on cruel and unusual punishment. In contrast, Johnson expressly advanced several other double-jeopardy claims, arguing that the count of assault in the third degree should merge with the sexual assault counts, and that the court could not revise its initial sentence and increase the total incarceration time. The superior court gave Johnson ample opportunity to raise these and other objections, stating “I understand why you have to make this ... record.” The superior court asked at the close of the sentencing hearing, “[I]s there anything you want to put on the record?” to which Johnson's response was, “I have nothing to add that ... I didn't raise a[l]ready.” 5
Johnson appealed his conviction to the court of appeals, arguing that “his two sexual assault convictions should be merged into a single conviction.” 6 The court of appeals first concluded that Johnson had forfeited his double-jeopardy argument by failing to raise it in the superior court. It reasoned that although Johnson had argued that the superior court “had the discretion to merge” Johnson's convictions, Johnson's argument that the court was “ required to merge these two counts” was presented for the first time on appeal and could not be reviewed unless the court's “failure to merge the two counts constituted ‘plain error.’ ” 7
The court of appeals further concluded that the superior court did not commit error, plain or otherwise, by failing to merge the sexual assault counts sua sponte. Rather, the superior court “follow[ed] governing precedent on the issue before the court.” 8 The court of appeals characterized two of its prior cases— Yearty v. State9 and Erickson v. State10—as holding that “when a defendant perpetrates distinct types of sexual penetration upon a victim during a single episode of sexual assault, the defendant can be convicted of separate counts for each type of penetration” without running afoul of Alaska's double-jeopardy clause.11 If Johnson had presented his double-jeopardy argument in the superior court, he would have been required to ask that court to “declare[ ] that Yearty and Erickson were wrongly decided” and to “decline[ ] to follow the precedent set in those two cases.” 12 But the court of appeals concluded that following governing precedent can never be plain error.13 Moreover, the court of appeals reasoned that even if Yearty and Erickson were wrongly decided, 14
We partially granted Johnson's petition for hearing in this court and requested argument on several issues, including what a party must do in the trial court to preserve the right to argue that controlling precedent should be overturned, what scope of appellate review should apply to unpreserved double-jeopardy claims, and what the result should be on the merits of Johnson's double-jeopardy claim.
The proper extent of appellate review for an unpreserved claim of constitutional error is a question of law that we review de novo.15 Under the de novo review standard, we exercise our independent judgment, 16 and our “duty is to adopt the rule of law that is most persuasive in light of precedent, reason, and policy.” 17
Whether two convictions should merge on double-jeopardy grounds is a mixed question of law and fact.18 The ultimate legal question of merger under the double-jeopardy clause is reviewed de novo, while the questions of fact underlying the conviction for the specific counts of statutory violations are reviewed for clear error.19Here, Johnson does not challenge any of the superior court's findings of fact. Accordingly, we address de novo the purely legal question of whether the two sexual assault counts should merge under the state and federal constitutions.
IV. DISCUSSIONA. An Unpreserved Double–Jeopardy Claim Is A Claim Of Fundamental Error That Warrants Full Appellate Review On The Merits.
Typically, a litigant or defendant must raise an objection in the trial court in order to preserve that argument for appeal.20 This general preservation rule is a prudential gate-keeping doctrine adopted by the courts to serve important judicial policies: 21 ensuring that there is “a ruling by the trial court that may be reviewed on appeal, ... afford[ing] the trial court the opportunity to correct an alleged error,” 22 and creating a sufficient factual record so “that appellate courts do not decide issues of law in a factual vacuum.” 23
But the general preservation rule is not absolute, and it is subject to prudential exceptions, such as the plain error doctrine.24 We held in Adams v. State that we will review unpreserved claims for plain error and reverse the trial court where there was obvious and prejudicial error below affecting substantial rights that did not result from “intelligent waiver or a tactical decision not to object.” 25 In our order partially granting Johnson's petition, we asked the parties to brief the applicability of the plain error doctrine and the holding in Adams to the facts of this case.
Johnson argues that “a valid double jeopardy claim is a plain error” per se, regardless of any case-by-case analysis under the Adams factors. (Emphasis in original.) He argues that Adams does not define the entirety of the plain error doctrine, and he further argues for flexibility even within the Adams framework for cases where the obviousness of an error is irrelevant to the question whether that error should be reviewed on appeal for plain error even if unpreserved.26
The State argues that Adams “defined plain error” and that the multi-factor test set out in Adams is the comprehensive and exclusive test for when we will review unpreserved claims of error for plain error. The State further argues that the Adams factors, including the obviousness factor, are not flexible and that there should be no per se plain error rule for unpreserved double-jeopardy claims.27
But we do not need to address how or whether an unpreserved double-jeopardy claim would fit within the rubric of plain error. A claim of a double-jeopardy violation, even if unpreserved in the trial court, may be raised for the first time on appeal and will always be given full appellate consideration on the merits...
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In re Aiden R.
...of Gabriel C., 324 P.3d 835, 838 (Alaska 2014). [14] Id. at 837. [15] Johnson v. State, 328 P.3d 77, 83 n.27 (Alaska 2014). While Johnson v. State is a criminal appeal discussing plain error review of various criminal rules, we apply the general principles of plain error review to civil cas......