STATE OF IOWA v. IRVIN JOHNSON JR.
No. 19–0109
IN THE SUPREME COURT OF IOWA
October 16, 2020
Waterman, J.
Submitted September 17, 2020
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.
The State seeks further review of a court of appeals decision holding that convictions for possession of marijuana merged with convictions for felony eluding with marijuana. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AND SENTENCE AFFIRMED.
Waterman, J., delivered the opinion of the court, in which all justices joined.
Martha J. Lucey, State Appellant Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Timothy M. Hau, Assistant Attorney General, Brian J. Williams, County Attorney, and Jeremy L. Westendorf, Assistant County Attorney, for appellee.
In this appeal, we must decide whether the defendant’s convictions for misdemeanor possession of marijuana merge with his convictions for felony eluding while possessing marijuana. The defendant threw marijuana out his car window during two separate police chases. He pled guilty to both possession of marijuana and eluding with marijuana, and the district court imposed concurrent sentences. He appealed, arguing the possession convictions merged with the eluding charges.
The State concedes that under the legal-elements test, it is impossible to commit felony eluding with marijuana without possessing it. The State argues the statutory scheme nevertheless demonstrates the legislature intended cumulative punishments for these offenses. Following transfer, the court of appeals held that the convictions merged in light of 2018 legislation eliminating the automatic revocation of driving privileges for possession of marijuana. The State applied for further review, and we granted its application.
On our review, we hold the convictions do not merge. The legal-elements test for merger is satisfied, but we disagree with the court of appeals’ holding that elimination of the automatic license penalty for possession requires merger. The remaining penalties and enhancements for possession demonstrate the legislature has prescribed cumulative punishments for the two offenses. Accordingly, for the reasons elaborated below, we vacate the decision of the court of appeals and affirm the district court’s judgment and sentences.
I. Background Facts and Proceedings.
This case arises from two separate police chases. On May 24, 2017, Waterloo Police Officer Tyler Brownell saw Irvin Johnson Jr. driving on Franklin Street. Officer Brownell recognized the vehicle and knew that Johnson’s driver’s license remained barred due to his status as a habitual offender.
Officer Brownell turned on his emergency lights to initiate a traffic stop. When Johnson failed to pull over, Officer Brownell activated his siren. Johnson sped away and, during the ensuing pursuit, drove through three stop signs while exceeding fifty-five miles per hour in a twenty-five-mile-per-hour zone. The auto chase ended after Johnson made a hard turn into a
Officer Brownell noted the vehicle interior smelled of “fresh” marijuana but found none inside. He searched near the vehicle and found an orange prescription pill bottle containing marijuana buds. Although the ground was wet, the bottle had no condensation, leading Officer Brownell to conclude the bottle had just landed there.
The second chase happened on February 16, 2018. Waterloo Police Officer Andrew Tindall was driving a marked squad car and noticed Johnson driving a gray Nissan SUV. Officer Tindall knew Johnson’s driver’s license remained barred. Officer Tindall drove behind Johnson and activated his emergency lights. Johnson rapidly accelerated, and Officer Tindall activated his sirens and pursued.
During this chase, Johnson drove approximately sixty miles per hour in a twenty-five-mile-per-hour zone and ran three stop signs. Officer Tindall saw Johnson toss a small plastic bag out of the window and radioed the location, where another officer found the bag containing marijuana. The chase ended when Johnson lost control of the Nissan, struck a tree, and was apprehended.
For each incident, the State charged Johnson with felony eluding while possessing marijuana, in violation of
Johnson appealed, contending the marijuana possession convictions must merge with the eluding convictions. We transferred the case to the court of appeals, which vacated his convictions in part and remanded for correction of an illegal sentence. The court of appeals determined that the marijuana possession charges were necessarily included offenses of felony eluding enhanced by the driver’s possession of marijuana. As such, the court of appeals held that “these offenses must merge” and vacated Johnson’s convictions for possession of marijuana. The State applied for further review, and we granted its application.
II. Standard of Review.
We review an alleged failure to merge convictions as required by statute for correction of errors at law. State v. West, 924 N.W.2d 502, 504 (Iowa 2019); State v. Love, 858 N.W.2d 721, 723 (Iowa 2015). We review constitutional double jeopardy claims de novo. State v. Lindell, 828 N.W.2d 1, 4 (Iowa 2013).
III. Analysis.
We must decide whether Johnson’s serious misdemeanor convictions for possession of marijuana in violation of
We begin with the applicable statute governing merger.
When determining whether the legislature provided for double punishments, our first step is to apply the legal-elements test that compares “the elements of the two offenses to determine whether it is
possible to commit the greater offense without also committing the lesser offense.” Id. The State charged Johnson with felony eluding while possessing marijuana, under
The driver of a motor vehicle commits a class “D” felony if the driver willfully fails to bring the motor vehicle to a stop or otherwise eludes or attempts to elude a marked official law enforcement vehicle that is driven by a uniformed peace officer after being given a visual and audible signal as provided in this section, and in doing so exceeds the speed limit by twenty-five miles per hour or more, and if any of the following occurs:
a. The driver is participating in a public offense, as defined in
section 702.13 , that is a felony.b. The driver is in violation of section 321J.2 or 124.401.
c. The offense results in bodily injury to a person other than the driver.
It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this chapter.
However, in 2018 our legislature eliminated the automatic revocation of driving privileges upon a conviction for possession of marijuana. 2018 Iowa Acts ch. 1172, § 102 (codified at
Most importantly, merger would eliminate the subsequent-offense enhancements for marijuana possession. See
number of offense-specific sentencing provisions, including mandatory minimums and subsequent-offense enhancements.” 661 N.W.2d 550, 552 (Iowa Ct. App. 2003). By the same logic, it would undermine the sentencing enhancements for recidivists convicted of marijuana possession by merging that offense with eluding. If those offenses merged to vacate the possession convictions, then Johnson, if convicted of possession again, would face only the minimum six months in jail for a first offense, rather than two years imprisonment for a third offense; yet someone convicted of a third possession offense without eluding would face the two-year sentence. We cannot conclude the legislature intended those convicted of eluding with marijuana to escape subsequent enhancements that apply to those convicted of possession alone. To do so could create a perverse incentive to flee the police.
We find further indications the legislature intended multiple punishments for possession and eluding based on the other penalties or sentencing options unique to
Additionally,
or sanction otherwise authorized by law.”4 This provision does not expressly refer to criminal sanctions, but those arguably are included in the phrase “any sanction otherwise authorized by law.” This interpretation makes sense because the preceding phrase mentions civil and administrative penalties, leaving only criminal sanctions to complete the scope of the provision. If not construed to include other criminal laws, the phrase would be surplusage. The State argues
Another reason we decline to merge these offenses is that eluding and drug possession statutes address distinct dangers. We have declined to merge offenses when the underlying statutes focus on “different dangers.” Halliburton, 539 N.W.2d at 345. Eluding and an OWI, for example, “were designed for the protection of the public” but were “meant to protect against a different form of illegal conduct.” Rice, 661 N.W.2d at 551. The Eckrich court in declining to merge eluding, possession, and operating while intoxicated offenses, stated that it is “quite evident that each statute was designed to address a separate form of illegal conduct and the punishments designed accordingly.” Eckrich, 670 N.W.2d at 650. Eluding is criminalized to protect society against dangerous driving. Eluding also penalizes defiance of the law and deters fleeing the police to avoid capture for other crimes. By contrast, possession of
IV. Disposition.
For those reasons, we vacate the decision of the court of appeals and affirm the district court’s judgment and sentence.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AND SENTENCE AFFIRMED.