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McGowen v. State

Court of Appeals of Alaska

September 25, 2015

GERALD L. MCGOWEN, Appellant,
v.
STATE OF ALASKA, Appellee

Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge. Trial Court No. 3PA-06-538 CR.

Tracey Wollenberg, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]

OPINION

ALLARD, Judge

In March 2006, the Alaska State Troopers executed a search warrant on Gerald L. McGowen's home, seizing 26 marijuana plants, three baggies of marijuana weighing a total of 11.2 grams, and equipment used to grow and process marijuana. Based on this evidence, McGowen was charged with four counts of misconduct involving a controlled substance in the fourth degree under four alternative theories in AS 11.71.040(a).

Page 989

Count I charged McGowen with knowingly manufacturing one ounce or more of marijuana.[1] Count II charged McGowen with knowingly possessing one pound or more of marijuana.[2] Count III charged McGowen with knowingly possessing twenty-five or more marijuana plants.[3] And Count IV charged McGowen with maintaining a structure for the purpose of keeping or distributing controlled substances in violation of a felony provision of the drug laws.[4] The jury convicted McGowen of all charges.

At McGowen's sentencing, the superior court properly merged Count IV (maintaining a structure for keeping or distributing controlled substances) with the other three counts.[5] This left McGowen with separate convictions on Counts I, II, and III. The superior court imposed 3 years with 1 year suspended on each count, to be served concurrently.

McGowen appealed his convictions to this Court on various grounds, but he did not argue that his three convictions should merge. This Court affirmed McGowen's convictions in an unpublished opinion.[6]

McGowen then filed a petition for hearing to the Alaska Supreme Court, arguing for the first time that under the double jeopardy clause of the Alaska Constitution his three convictions should merge because they were all based on the same underlying conduct.

The supreme court remanded McGowen's case to this Court, directing us to determine whether McGowen's double jeopardy claim had merit. We, in turn, ordered the parties to submit supplemental briefs on this issue.

Why we conclude that all three counts must merge

In its supplemental brief, the State concedes that McGowen's conviction on Count II (possessing one pound or more of marijuana) must merge with his conviction on Count III (possessing 25 or more marijuana plants) because both counts were based on McGowen's ...


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