BYRON E. CHARLES, Petitioner,
STATE OF ALASKA, Respondent.
Petition for Hearing from the Court of Appeals of the State of Alaska No. A-09623, on appeal from the Superior Court of the State of Alaska No. 1KE-05-00765 CR, First Judicial District, Ketchikan, Kevin Miller, Judge.
Tracey Wollenberg, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Petitioner.
Timothy W. Terrell, 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, and Eastaugh, Senior Justice. [Bolger, Justice, not participating.]
EASTAUGH, Senior Justice.
Does the 2008 holding in Doe v. State (Doe I) apply to Byron E. Charles, whose 2006 conviction for violating the Alaska Sex Offender Registration Act (ASORA) was still on direct review when he argued for the first time, in reliance on our then-recent Doe I opinion, that applying ASORA to him violated Alaska's ex post facto clause? We conclude that it does. In doing so, we adopt for cases on direct review the federal retroactivity standard announced in Griffith v. Kentucky. We also conclude that Charles's prior failure to raise the ex post facto issue does not bar him from doing so now: Manifest injustice would result if he could not challenge on direct review his conviction for violating a criminal statute that, under our constitution, may not be applied to him.
We therefore reverse the court of appeals's 2007 decision that affirmed Charles's judgment and reverse his 2006 judgment of conviction.
II. FACTS AND PROCEEDINGS
Byron E. Charles was convicted of a sex offense in the 1980s. In 1994 the Alaska Legislature enacted ASORA. The statute was expressly retroactive: It stated that persons convicted of sex offenses were required to register as sex offenders "regardless of whether the conviction occurred before, after, or on the effective date of [ASORA]."  ASORA accordingly required Charles to maintain sex offender registration.
In 2006 Charles was charged with misdemeanor failure to register as a sex offender. At Charles's failure-to-register trial, a Ketchikan police officer testified that he checked Charles's 2005 registration and found that the listed address did not exist. Charles testified that he had written the nonexistent address, but asserted that he likely confused a past address with a family member's address. The trial judge, sitting as the trier of fact, found that Charles was aware of a substantial probability that the address was inaccurate and was thus guilty of failure to register. A judgment of conviction for misdemeanor failure to register as a sex offender was entered against Charles in 2006.
Charles filed a timely appeal in which he argued only that the trial court's finding of guilt was inconsistent with its finding Charles was credible, that the trial court erred in ruling on an evidentiary issue, and that the evidence was not sufficient to sustain the conviction. He did not argue that applying ASORA to him would be an ex post facto violation. The court of appeals affirmed Charles's conviction in 2007.
In 2008 we issued our opinion in Doe I, holding that applying ASORA to Doe violated the Alaska Constitution's ex post facto clause. Charles then filed a timely pro se petition for hearing to this court; relying on Doe I, he argued that his failure-to-register conviction violated the ex post facto clause. Charles had never raised an ex post facto argument in the superior court or in his direct appeal to the court of appeals. The State opposed Charles's petition, arguing that Doe I did not retroactively excuse Charles's failure to comply with ASORA. In light of Doe I's possible impact on Charles's conviction, we remanded to the court of appeals to consider these questions:
1. Assuming Charles is now raising an ex post facto challenge to application of ASORA to him, did Charles waive that argument, and if so, is an ex post facto challenge waivable?
2. Should the principle of direct review retroactivity as described in the federal courts, see Griffith v. Kentucky, 479 U.S. 314 (1987), be adopted as a principle of Alaska law, and if so, under the principle of direct review retroactivity, should Charles's 2006 conviction for failure to register be set aside? 
On remand, Charles (by then represented by counsel) and the State filed supplemental briefs and presented oral arguments. Noting that we had not entered a final order with respect to Charles's petition, and had thus not explicitly either granted or denied the petition, the court of appeals treated the remand as a request for its "input and recommendations on these issues, " not as a request to decide these issues. Its per curiam opinion suggested the following: (1) Ex post facto rights should be intentionally waivable and unintentionally forfeitable; (2) Charles unintentionally forfeited his ex post facto claim, limiting review to plain error; (3) Doe I should retroactively apply to Charles's case under either Alaska's existing retroactivity standard (the Judd standard ) or the federal standard for direct review retroactivity (the Griffith standard ), making it unnecessary to decide whether to adopt the federal ...