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Rofkar v. State

Court of Appeals of Alaska

July 5, 2013

Sven ROFKAR, Appellant,
v.
STATE of Alaska, Appellee.

Dan S. Bair, Assistant Public Advocate, and Richard Allen, Alaska Public Advocate, Anchorage, for the Appellant.

Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: MANNHEIMER, Chief Judge, ALLARD, Judge, and COATS, Senior Judge.[*]

OPINION

COATS, Senior Judge.

Sven Rofkar was found guilty of four counts of misconduct involving a controlled substance in the fourth degree.[1] Three of these counts charged that Rofkar possessed or manufactured marijuana.[2] The superior court merged these jury verdicts into a single conviction. But the court did not merge the fourth count, which charged Rofkar with maintaining a building for keeping or distributing controlled substances.[3] Rofkar argues that Alaska's Double Jeopardy Clause requires that his conviction for maintaining a building for keeping or distributing controlled substances must merge with his other conviction. As we explain in this decision, we now hold that Rofkar's conviction for maintaining a building for keeping or distributing controlled substances must merge with his conviction for possessing and manufacturing marijuana.

Why we conclude that Rofkar's conviction for maintaining a building for keeping or distributing controlled substances should merge with his merged conviction for possessing or manufacturing marijuana

Our discussion of this issue starts with the leading case of Whitton v. State, 479 P.2d 302 (Alaska 1970). In Whitton, the defendant was convicted of robbery and of the separate crime of using a firearm during the commission

Page 357

of a robbery (the same robbery).[4] The Alaska Supreme Court held that these convictions were for the " same offense", and that they should merge.[5]

The supreme court declared that this double jeopardy question should be resolved " by focusing upon the quality of the differences, if any exist, between the separate statutory offenses, as [these] differences relate to the basic interests sought to be vindicated or protected by the statutes." [6]

The [court] first [must] compare the different statutes in question, as they apply to the facts of the case, to determine whether [they] involved differences in intent or conduct. [The court must] then judge any such differences ... in light of the basic interests of society to be vindicated or protected, and decide whether those differences [are] substantial or significant enough to warrant multiple punishments. The social interests to be considered ... 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 [these] 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 if there are no such differences, or if they are insignificant or insubstantial, then only one sentence may be imposed under [the] double jeopardy [clause]. 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.[7]

In order to carry out the dictates of Whitton, we turn to the legislative history behind the statute that prohibits maintaining a building for keeping or distributing controlled substances.

The statute in question was enacted in 1982, when the Alaska Legislature revised the drug laws and added chapter 71 to Title 11 of the Alaska Statutes.[8] The legislature's stated purposes were to follow the federal and uniform controlled substances acts, provide uniform sentencing, and combat illicit trafficking in drugs.[9] The statute that prohibits maintaining a building for keeping or distributing controlled ...


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