Petition for Hearing from the Court of Appeals of the State of Alaska, on appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Michael Spaan, Judge. Court of Appeals No. A-10467, Superior Court No. 3AN-07-07506 CR.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Petitioner.
Tamara E. de Lucia, 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. [Bolger, Justice, not participating.].
FABE, Chief Justice.
Nathawn Katurl Johnson was convicted of and sentenced for, among other crimes, two counts of sexual assault in the first degree relating to his rape of S.S. One count resulted from Johnson's penetration of S.S.'s mouth without her consent, and the other count resulted from Johnson's penetration of S.S.'s vagina without her consent. Johnson never argued to the superior court that the two counts must merge on double-jeopardy grounds. After Johnson made the double-jeopardy argument for the first time on appeal, the court of appeals held that Johnson had not preserved his merger argument for appeal and that the superior court did not commit plain error by failing to merge the counts sua sponte.
On petition, Johnson argues that the court of appeals erred by denying his late-raised double-jeopardy argument full appellate review on the merits. We agree, and we review Johnson's double-jeopardy claim on its
merits. Johnson also argues that his separate convictions on two counts of sexual assault in the first degree violate the state and federal prohibitions on double jeopardy. Because we conclude that Johnson's separate convictions and sentences did not violate the constitutional prohibitions on double jeopardy, we affirm.
II. FACTS AND PROCEEDINGS
On July 11, 2007, Nathawn Katurl Johnson kidnapped and sexually penetrated S.S. without her consent. After luring her to a trailer park with a false promise of a job interview, forcing her inside an abandoned trailer at knife point, and holding a knife at her temple once they were inside, Johnson forced S.S. to perform oral sex. Johnson then ordered S.S. to lie down and remove her clothing, and Johnson proceeded to have non-consensual vaginal intercourse with S.S. while continuing to hold the knife to her temple.
A grand jury indicted Johnson on four counts stemming from the events of that day, including one count of kidnapping, one count of assault in the third degree, and two counts of sexual assault in the first degree. The two counts of sexual assault were based on Johnson's non-consensual sexual penetration of S.S.'s mouth and vagina. A jury convicted Johnson of all four counts. Johnson was sentenced to a total consecutive term of imprisonment of fifty-seven years, five months, and two days, followed by fifteen years of probation. This sentence included separate punishments for the two counts of sexual assault in the first degree.
Johnson never explicitly argued in the trial court that the sexual assault counts must merge on double-jeopardy grounds. Instead, Johnson argued that " the Court . . . could have the discretion to merge . . . the two sex assaults." The superior court responded, " I don't think I have any authority at all to merge the second sexual assault with the first sexual assault" under the relevant statute. Johnson responded, " [O]bviously I'd have to make the argument that [that] statute's unconstitutional." This exchange never mentioned double jeopardy, and Johnson's reference to the statute's potential unconstitutionality may have referred to his earlier argument that a sentence of close to 60 years imprisonment would violate the constitutional prohibition on cruel and unusual punishment. In contrast, Johnson expressly advanced several other double-jeopardy claims, arguing that the count of assault in the third degree should merge with the sexual assault counts, and that the court could not revise its initial sentence and increase the total incarceration time. The superior court gave Johnson ample opportunity to raise these and other objections, stating " I understand why you have to make this . . . record." The superior court asked at the close of the sentencing hearing, " [I]s there anything you want to put on the record?" to which Johnson's response was, " I have nothing to add that . . . I didn't raise a[l]ready." 
Johnson appealed his conviction to the court of appeals, arguing that " his two sexual assault convictions should be merged into a single conviction."  The court of appeals
first concluded that Johnson had forfeited his double-jeopardy argument by failing to raise it in the superior court. It reasoned that although Johnson had argued that the superior court " had the discretion to merge" Johnson's convictions, Johnson's argument that the court was " required to merge these two counts" was presented for the first time on appeal and could not be reviewed unless the ...