June 27, 2014
NATHAWN KATURL JOHNSON, Petitioner,
STATE OF ALASKA, Respondent
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 court's " failure to merge the two counts constituted 'plain error.'" 
The court of appeals further concluded that the superior court did not commit error, plain or otherwise, by failing to merge the sexual assault counts sua sponte. Rather, the superior court " follow[ed] governing precedent on the issue before the court."  The court of appeals characterized two of its prior cases -- Yearty v. State  and Erickson v. State  -- as holding that " when a defendant perpetrates distinct types of sexual penetration upon a victim during a single episode of sexual assault, the defendant can be convicted of separate counts for each type of penetration" without running afoul of Alaska's double-jeopardy clause. If Johnson had presented his double-jeopardy argument in the superior court, he would have been required to ask that court to " declare that Yearty and Erickson were wrongly decided" and to " decline to follow the precedent set in those two cases."  But the court of appeals concluded that following governing precedent can never be plain error. Moreover, the court of appeals reasoned that even if Yearty and Erickson were wrongly decided, " the matter is no more than debatable. And when a legal matter is no more than debatable, there is no plain error." 
We partially granted Johnson's petition for hearing in this court and requested argument on several issues, including what a party must do in the trial court to preserve the right to argue that controlling precedent should be overturned, what scope of appellate review should apply to unpreserved double-jeopardy claims, and what the result should be on the merits of Johnson's double-jeopardy claim.
III. STANDARDS OF REVIEW
The proper extent of appellate review for an unpreserved claim of constitutional error is a question of law that we review de novo. Under the de novo review standard, we exercise our independent judgment, and our " duty is to adopt the rule of law that is most persuasive in light of precedent, reason, and policy." 
Whether two convictions should merge on double-jeopardy grounds is a mixed question of law and fact. The ultimate legal question of merger under the double-jeopardy clause is reviewed de novo, while the questions of fact underlying the conviction for the specific counts of statutory violations are reviewed for clear error.
Here, Johnson does not challenge any of the superior court's findings of fact. Accordingly, we address de novo the purely legal question of whether the two sexual assault counts should merge under the state and federal constitutions.
A. An Unpreserved Double-Jeopardy Claim Is A Claim Of Fundamental Error That Warrants Full Appellate Review On The Merits.
Typically, a litigant or defendant must raise an objection in the trial court in order to preserve that argument for appeal. This general preservation rule is a prudential gate-keeping doctrine adopted by the courts to serve important judicial policies: ensuring that there is " a ruling by the trial court that may be reviewed on appeal, . . . afford[ing] the trial court the opportunity to correct an alleged error,"  and creating a sufficient factual record so " that appellate courts do not decide issues of law in a factual vacuum." 
But the general preservation rule is not absolute, and it is subject to prudential exceptions, such as the plain error doctrine. We held in Adams v. State that we will review unpreserved claims for plain error and reverse the trial court where there was obvious and prejudicial error below affecting substantial rights that did not result from " intelligent waiver or a tactical decision not to object."  In our order partially granting Johnson's petition, we asked the parties to brief the applicability of the plain error doctrine and the holding in Adams to the facts of this case.
Johnson argues that " a valid double jeopardy claim is a plain error" per se, regardless of any case-by-case analysis under the Adams factors. (Emphasis in original.) He argues that Adams does not define the entirety of the plain error doctrine, and he further argues for flexibility even within the Adams framework for cases where the obviousness of an error is irrelevant to the question whether that error should be reviewed
on appeal for plain error even if unpreserved.
The State argues that Adams " defined plain error" and that the multi-factor test set out in Adams is the comprehensive and exclusive test for when we will review unpreserved claims of error for plain error. The State further argues that the Adams factors, including the obviousness factor, are not flexible and that there should be no per se plain error rule for unpreserved double-jeopardy claims.
But we do not need to address how or whether an unpreserved double-jeopardy claim would fit within the rubric of plain error. A claim of a double-jeopardy violation, even if unpreserved in the trial court, may be raised for the first time on appeal and will always be given full appellate consideration on the merits because the claimed error, if meritorious, would qualify as fundamental error.
In cases of fundamental error, we have long recognized an exception to the general preservation rule. For example, we have repeatedly held for over 40 years that a criminal defendant may raise the unconstitutionality of a criminal prohibition for the first time on appeal and receive full appellate review without needing to preserve the issue by objecting below. Early in the life of this doctrine, we characterized it as fitting within
the doctrine of plain error, concluding that where a person is convicted pursuant to an unconstitutional criminal prohibition, any error would necessarily be plain. But in Gudmundson v. State  we clarified that unpreserved challenges to a conviction based on a claim that the statutory basis for the conviction is unconstitutional will receive full appellate review, not because the error is plain but because any error would be fundamental or " jurisdictional in character."  We agreed with and quoted the court of appeals' opinion in that case, which stated that " [s]uch a claim may be brought at any time because it involves a claim that the complaint 'does not charge a crime.'"  Because of the fundamental requirement that a criminal conviction be made pursuant to a valid law, we have long granted full appellate review to all late-raised claims that a criminal prohibition is unconstitutional.
Similarly, we recently held in Charles v. State that we will review an unpreserved ex post facto challenge on the merits regardless of whether it constitutes plain error. In that case, we quoted with approval the view of the Texas Court of Criminal Appeals that " because ex post facto challenges attack the legislature's authority to criminalize conduct, 'defendants should not be permitted to waive the protections of the ex post facto clause " any more than they may consent to be imprisoned for conduct which is not a crime." '"  We noted that " we would ordinarily review the [unpreserved] challenge only for plain error,"  but found the application of that doctrine to be unnecessary because the protection against ex post facto conviction was so fundamental as to merit full appellate review of even unpreserved claims of error. Moreover, we agreed with the conclusion of the court of appeals in Charles that the unpreserved ex post facto challenge should be reviewed because Charles " st[ood] convicted of violating a criminal statute which, under our state constitution, can not apply to him." 
Although we have not had a chance to address the existence of other claims of fundamental error necessitating full appellate review, we hold that double-jeopardy
claims are also claims of fundamental error that may be raised for the first time on appeal and will be reviewed on the merits in full, regardless of whether the claimed errors would qualify as plain under the plain error doctrine. The constitutional prohibition on double jeopardy is a bulwark of the criminal justice system, " implicat[ing] the very power of the State to prosecute a particular defendant for a particular crime and serv[ing] as an important check on the potential power of the State" ; it " is fundamental not only to the process of criminal justice, but to our system of government itself" ; and it, like the longstanding line of Gudmundson cases, is " a doctrine with obvious jurisdictional overtones."  We agree with our sister states that have held that because the constitutional prohibition on double jeopardy is " 'fundamental to the American scheme of justice[,]' . . . this right must be enforced whenever a violation is determined to exist." 
Our holding is in accord with a line of cases from the court of appeals dating back 32 years, which recognizes that unpreserved double-jeopardy claims may be brought for the first time on appeal. Our opinion today confirms full reviewability of unpreserved double-jeopardy claims on appeal and clarifies that this holding is rooted in the doctrine of fundamental error.
Johnson Did Not Invite The Alleged Error He Raises On Appeal.
The State argues that Johnson's double-jeopardy claim runs afoul of the invited error doctrine. The stakes are high when invited-error review is on the table, because " [w]hen an error is invited, an appellate court examines the error [only] to see if there is an 'exceptional situation' where reversal is necessary to preserve the integrity of the judicial process or to prevent a miscarriage of justice."  The State reasons that " Johnson arguably invited the very error he now complains of" when his attorney stated at sentencing that the superior court had discretion to merge the sexual assault counts but did not argue that the superior court must merge those counts.
We conclude that Johnson did not invite the error he now complains of on appeal. We have defined invited error as occurring " when a party urges a lower court to do something that [the party] later appeals as erroneous."  This case fails to satisfy the traditional requirement that the narrow scope of invited-error review applies only when " the court takes erroneous action at the express request of the defendant."  Here, Johnson never urged the superior court to refrain from merging the sexual assault counts but rather argued for merger. Without an invitation, there can be no invited error. Because of the harsh consequences of invited-error review, we decline to expand its scope to cases in which appellants fail to object or in which they identify a different legal basis for their arguments to the trial court than they raise in an appellate court.
C. Johnson's Double-Jeopardy Claims Fail On The Merits.
The Alaska Constitution, article I, section 9, provides, in pertinent part, " No person shall be put in jeopardy twice for the same offense." The federal Constitution has a similar provision in the Fifth Amendment (applicable to the states through the Fourteenth Amendment ) which states, in pertinent part, " nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." 
The constitutional protection against double jeopardy conveys three distinct rights: " It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense."  This case implicates the third category.
Johnson claims that his conviction and punishment for two counts of sexual assault in the first degree for vaginally and orally penetrating S.S. fall afoul of the constitutional prohibitions on double jeopardy found in both the Alaska Constitution and the federal Constitution. We disagree.
1. Johnson's double-jeopardy claim under the federal Constitution fails on the merits.
In cases of alleged multiple punishment for a single course of criminal conduct, the United States Supreme Court has interpreted the federal double-jeopardy
clause to authorize courts to enforce the will of the legislature.  Where the legislature intends to apportion its punishment for a single course of conduct across multiple crimes, the high court will find no double-jeopardy problem under the federal Constitution where there are multiple convictions. But where the legislature intended to punish only once despite the potential applicability of multiple statutes or counts, the high court will find a double-jeopardy violation under the federal Constitution if a defendant is convicted of multiple crimes or counts. Legislative intent is " dispositive" of the federal constitutional question.
We conclude that Johnson's right under the federal Constitution to avoid double jeopardy was not infringed by separate conviction and punishment for separate counts of sexual assault in the first degree arising out of Johnson's single course of criminal conduct. Nothing in the criminal statute or the legislative history indicates that the Alaska legislature intended to punish only once for a course of criminal conduct that involved non-consensual sexual penetration of multiple orifices on the victim's body. Indeed, the definition of " sexual penetration" adopted by the legislature indicates the legislature's intent to punish each distinct type of sexual penetration individually: Alaska Statute 11.81.900(b)(60) defines " sexual penetration" as " genital intercourse, cunnilingus, fellatio, anal intercourse, or an intrusion, however slight, of an object or any part of a person's body into the genital or anal opening of another person's body." Moreover, " in the years since" the court of appeals adopted the rule that multiple punishments could lie for multiple types of non-consensual sexual penetration, " the Alaska Legislature has taken no action to indicate its disagreement with [that] . . . conclusion."  In short, there are indications that the legislature intended to permit multiple punishment for multiple types of sexual penetration, and there is no contrary indication. The intent of the Alaska legislature to permit multiple punishment for multiple types of non-consensual sexual penetration is dispositive of the double-jeopardy issue under the federal Constitution.
2. Johnson's double-jeopardy claim under the Alaska Constitution fails on the merits.
a. Whitton establishes the fundamental principles for determining whether a criminal course of conduct constitutes the " same offense" or " multiple offenses" for the purposes of all double-jeopardy claims under the Alaska Constitution.
In Whitton v. State, we held that in order to determine whether multiple punishment violates the Alaska Constitution, a court must first look to the intent, conduct, and societal interests at stake in the multiple offenses (or multiple counts of a single offense) that were defined by the legislature. A court must then independently determine whether the differences among these purposes underlying the multiple offenses or counts are great enough that multiple punishments for the criminal conduct should lie.
A brief exploration of our prior application of the Whitton test illustrates how Whitton established the fundamental principles for determining whether a criminal course of conduct constitutes the same offense or multiple offenses for purposes of all double-jeopardy claims under the Alaska Constitution,
and why that same test continues to govern such cases today and applies in this case.
Soon after announcing the Whitton test, we noted that " we would indeed have difficulty in upholding" multiple charges of assault under the same statute for " every movement of a rifle barrel toward or away from a prospective victim,"  but we upheld a conviction for both burglary and larceny arising out of the same series of criminal actions because " the conduct punished as well as the societal interests protected by the two statutes differ sufficiently to permit consecutive punishment under both statutes."  We concluded in Thessen v. State that it would violate our double-jeopardy clause to permit multiple convictions on multiple counts of violating a single criminal prohibition where harm was caused to multiple victims through a single criminal act (in that case arson) without intent to harm multiple victims. But in State v. Dunlop, we recognized that our ruling in Thessen was erroneous. Our error in Thessen stemmed from recognizing that the defendant's intent and conduct were identical for each count of manslaughter but ignoring the difference in the consequences of each count -- the death of a distinct person -- as being one of the societal interests that the offense of manslaughter was designed to guard against. And in Dunlop we clarified that Thessen misapplied Whitton: When applying the Whitton test courts must consider not only the intent and conduct of the perpetrator but also the consequences of his actions, and that the " gravamen of the offense of manslaughter" is the death of a distinct person, not people in general, such that the sufficiently important differences in the identity of each victim justified multiple punishment under Whitton.  Our case law thus makes clear that Whitton is the sole test for multiple punishment of the same offense under the Alaska Constitution.
The parties in this case purport to identify multiple tests for multiple punishment emanating from our case law and dispute which test should apply here. For the reasons described above, we hold that Whitton establishes the fundamental principles for determining whether a criminal course of conduct constitutes the same offense or multiple offenses for purposes of all double-jeopardy claims of multiple charges, convictions, or punishments under the Alaska Constitution.
b. Under Whitton, Johnson's non-consensual sexual penetration of S.S.'s
vagina and mouth constitutes multiple offenses such that multiple punishment is
not prohibited by the Alaska Constitution's prohibition on double jeopardy.
Applying the test from Whitton to determine whether Johnson's conviction and punishment for two counts of sexual assault in the first degree were unconstitutionally multiple, we must: (1) identify the societal interests at stake in charging, convicting on, and punishing multiple counts of sexual assault in the first degree, including differences in Johnson's intent and conduct and the consequences of his actions; and (2) independently determine whether those societal interests are great enough that multiple punishments for the criminal conduct should lie or whether multiple punishment is unconstitutional. We hold that Johnson's double-jeopardy right under the Alaska Constitution was not violated by multiple punishment for his multiple crimes.
The criminal prohibition on rape has as its goal preventing the loss of autonomy, dignity, free will, and bodily integrity that comes with non-consensual sexual penetration. We have stated that " [t]he reason [rape] is most serious is because it amounts to a desecration of the victim's person which is a vital part of her sanctity and dignity as a human being."  The United States Supreme Court has noted that " [rape] is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the . . . victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the 'ultimate violation of self.'" 
These consequences of sexual assault are revisited upon the victim with each distinct type of non-consensual sexual penetration in the course of the criminal episode. In this case, for example, S.S. protested Johnson's command to perform fellatio before complying at knife point, but she raised a new, distinct protest to Johnson's command (again, at knife point) that she submit to vaginal intercourse. S.S. experienced a difference in the nature, not just the degree, of the harm she had already suffered and the additional harm Johnson sought to inflict.
We hold that the harms from non-consensual sexual penetration of distinct orifices of the victim's body are so independently significant that multiple counts of sexual assault are permissible under the Alaska Constitution to vindicate the societal interest in preventing those harms and punishing the conduct that led to it. Our sister states appear to be nearly unanimous in reaching the same conclusion. We agree with one of the leading cases in this area that " [r]epeated
acts of forcible sexual intercourse are not to be construed as a roll of thunder -- an echo of a single sound rebounding until attenuated. One should not be allowed to take advantage of the fact that he has already committed one sexual assault on the victim and thereby be permitted to commit further assaults on the same person with no risk of further punishment for each assault committed."  As the Wisconsin court of appeals recognized, " Each act is a further denigration of the victim's integrity and a further danger to the victim." 
For these reasons, we REVERSE the court of appeals' decision denying full appellate review on the merits of Johnson's double-jeopardy claims but AFFIRM the superior court's conviction and sentencing of Johnson for separate counts of sexual assault in the first degree as not violating the constitutional prohibitions on double jeopardy.