Nicklie v. State
2017 Alas. App. LEXIS 143
| Alaska Ct. App. | 2017Background
- Defendant Robert Dee Nicklie was tried for assault after evidence he beat and strangled his girlfriend; jury convicted him of third-degree and fourth-degree assault but acquitted him of second-degree assault (the charged strangulation count reduced to third-degree).
- At sentencing both parties and the judge agreed the convictions should merge into a single conviction for third-degree assault and the judge imposed one sentence for third-degree assault.
- The post‑sentencing judgment form, however, listed convictions for both third‑ and fourth‑degree assault and stated they were merged "for sentencing purposes only."
- Nicklie appealed, arguing the extra fourth‑degree conviction must be vacated; the State conceded the conviction should be vacated.
- Nicklie also argued the trial judge committed plain error by not sua sponte instructing the jury on factual unanimity (concern that jurors may have relied on different acts: strangulation vs. hair‑pulling, or different modes of strangulation).
- The Court of Appeals found the merger concession well‑taken and rejected the unanimity claim, remanding to correct the judgment to reflect a single third‑degree assault conviction and affirming the judgment otherwise.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the separate fourth‑degree conviction must be vacated when counts merge under Whitton | Nicklie: the fourth‑degree conviction should be vacated because the verdicts merged into a single conviction of record | State: conceded the fourth‑degree conviction should be vacated | Court: agreed; merger under Whitton produces a single conviction of record — vacate the separate fourth‑degree conviction and remand to correct the judgment |
| Whether a jury unanimity instruction was required sua sponte where multiple acts/modes alleged | Nicklie: judge erred by not instructing on factual unanimity; jurors may have convicted based on different acts (strangulation vs. hair‑pulling) or different modes of strangulation | State: argued no plain error — prosecutor separated counts and jury instructions defined "dangerous instrument"; strangulation was a single act | Court: no plain error; separate counts were identified to jurors and the strangulation was a single act for unanimity purposes |
| Whether the trial court can merge convictions "for sentencing purposes only" | Nicklie: such limited merger leaves duplicate convictions of record, violating double jeopardy principles | State: conceded improper | Court: Alaska law does not permit merger only for sentencing — merger must produce a single conviction of record under Whitton |
| Whether use of standard judgment form can cause Whitton compliance problems | Nicklie: form causes judges to state convictions and then claim "merged for sentencing only" | State: acknowledged form issues | Court: urged Alaska Court System to revise the form and urged judges not to use it where Whitton merges apply |
Key Cases Cited
- Whitton v. State, 479 P.2d 302 (Alaska 1970) (double jeopardy/merger rule)
- Garhart v. State, 147 P.3d 746 (Alaska App. 2006) (explains timing and effect of merger under Whitton)
- Marks v. State, 496 P.2d 66 (Alaska 1972) (appellate review of state concessions)
- Newsome v. State, 782 P.2d 689 (Alaska App. 1989) (merger and conviction‑of‑record principles)
- Allain v. State, 810 P.2d 1019 (Alaska App. 1991) (treating merger as producing single conviction of record)
- S.R.D. v. State, 820 P.2d 1088 (Alaska App. 1991) (unanimity and single‑act analysis)