305 P.3d 356
Alaska Ct. App.2013Background
- Rofkar was convicted on four counts of misconduct involving a controlled substance in the fourth degree; three counts involved possession/manufacturing marijuana and were merged by the superior court, but the fourth count—keeping or maintaining a building for illegal drug activities—was not merged.
- The State charged that Rofkar knowingly permitted marijuana activities on premises he controlled.
- The trial court merged the three marijuana counts into one composite conviction but left the building-maintenance conviction separate.
- Rofkar argues the Double Jeopardy Clause requires merging the separate building-maintenance conviction with the marijuana convictions.
- The court analyzes Whitton v. State and legislative history of AS 11.71.040(a)(5) to determine whether the building-maintenance offense should merge with the marijuana convictions.
- The opinion ultimately overrules Davis v. State to hold that the building-maintenance conviction must merge with the marijuana convictions under Whitton based on the shared conduct and social interests involved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AS 11.71.040(a)(5) merges with marijuana convictions | Rofkar argues no merger under double jeopardy. | State contends separate conviction stands due to differing social interests. | Yes, must merge with the marijuana convictions. |
| What is the proper interpretive framework for the statute and Whitton | Whitton framework applies to analyze differences in conduct and social interests. | Legislative history supports separate punishment for building-maintenance. | Whitton framework governs; merger warranted. |
| Does Davis v. State remain controlling on this point | Davis supports separate convictions for keeping a building used for drug distribution. | Davis should be reconciled with Whitton in light of legislative history. | Overruled to the extent inconsistent with the merger rule. |
Key Cases Cited
- Whitton v. State, 479 P.2d 302 (Alaska 1970) (set forth the 'same offense' test and Whitton framework for double jeopardy analysis)
- Davis v. State, 766 P.2d 41 (Alaska App. 1988) (allowed separate convictions where offenses differed in conduct and social interests)
- Wahrer v. State, 901 P.2d 442 (Alaska App. 1995) (acknowledges applicability of AS 11.71.040(a)(5) to building owners who know of illegal activity)
- Dawson v. State, 894 P.2d 672 (Alaska App. 1995) (discusses related perceptions of how the controlled substances laws interact)
- Riley v. State, 60 P.3d 204 (Alaska App. 2002) (cites inferential reasoning related to double jeopardy and underlying offenses)