                                              NOTICE

       The text of this opinion can be corrected before the opinion is published in the
       Pacific Reporter. Readers are encouraged to bring typographical or other formal
       errors to the attention of the Clerk of the Appellate Courts:
                           303 K Street, Anchorage, Alaska 99501

                                    Fax: (907) 264-0878

                             E-mail: corrections @ akcourts.us



             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


GERALD L. MCGOWEN,
                                                     Court of Appeals No. A-10769
                            Appellant,               Trial Court No. 3PA-06-538 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.               No. 2477 — September 25, 2015


              Appeal from the Superior Court, Third Judicial District,
              Palmer, Kari Kristiansen, Judge.

              Appearances: 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. *


              Judge ALLARD.



   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
             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).
             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.




   1
       AS 11.71.040(a)(2).

   2
       Former AS 11.71.040(a)(3)(F) (pre-June 2006 version).

   3
       AS 11.71.040(a)(3)(G).

   4
       AS 11.71.040(a)(5).

   5
       See Rofkar v. State, 305 P.3d 356, 358-59 (Alaska App. 2013).


                                          –2–                                       2477

              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 possession of the same marijuana. 7 This concession is well­
founded.8
              The State contends, however, that McGowen’s conviction on Count I (for
manufacturing one ounce or more of marijuana) should not merge with his convictions
for possessing marijuana. The State argues that Count I is distinct because it required
proof both that McGowen grew the marijuana, and that he did so with the intent to sell


   6
       McGowen v. State, 2012 WL 5275022 (Alaska App. Oct. 24, 2012) (unpublished).
   7
       See Atkinson v. State, 869 P.2d 486, 495 (Alaska App. 1994).
   8
       See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that when the State
concedes error in a criminal case, the appellate court must independently assess whether the
State’s concession is well-founded).

                                           –3–                                        2477

the marijuana, rather than to consume it himself. (Alaska Statute 11.71.040(a)(2)
prohibits “manufactur[ing] or deliver[ing], or possess[ing] with intent to manufacture or
deliver,” one ounce or more of marijuana. The statutory definition of “manufacture”
excludes growing marijuana for personal use.9)
               We addressed a similar argument in Atkinson v. State.10 The defendant in
Atkinson was convicted of two counts of misconduct involving a controlled substance
in the fourth degree. Count I was for manufacturing or possessing with intent to deliver
one ounce or more of marijuana under AS 11.71.040(a)(2).11 Count II was for
possessing one pound or more of marijuana under former AS 11.71.040(a)(3)(F).12 Both
counts were based on the same marijuana. We concluded that the two counts must
merge because they alleged alternative statutory theories of the same crime and were
“based on a single act of possession involving the same marijuana.”13 In reaching this
conclusion, we relied on case law from another jurisdiction, which held that it was
impermissible to impose separate convictions for (1) possessing a drug with intent to sell
and (2) simply possessing the same drug.14
               In a footnote in Atkinson, we left open the possibility that merger might not
have been required if the jury’s verdict on Count I had specified that Atkinson was
convicted of manufacturing marijuana (i.e., growing marijuana with intent to sell) rather



   9
        See AS 11.71.900(13)(A).
   10
        Atkinson, 869 P.2d at 495.
   11
        Id. at 490.
   12
       See ch. 53, § 7, SLA 2006 (amending AS 11.71.040(a)(3)(F) to prohibit possession
of four ounces of marijuana, rather than one pound).
   13
        Atkinson, 869 P.2d at 495.
   14
        Id.

                                            –4–                                       2477

than possession with intent to sell.15 The State now relies on this footnote to argue that
merger is not required in McGowen’s case. But, although there may be circumstances
in which manufacturing and possessing marijuana are distinct criminal acts under the
double jeopardy clause, those circumstances are not present here.
               Here, McGowen was convicted of growing marijuana with the intent to sell
and also separately convicted of possessing that same marijuana once it was grown.
               (We note that the prosecutor used other evidence seized from McGowen’s
home — in particular, three baggies of marijuana separated into one-eighth ounce
portions, and $600 in cash — to argue that the marijuana McGowen grew was for sale
rather than for personal use. But, as McGowen points out, these baggies of marijuana
could not support his conviction on Count I, because they did not satisfy the one-ounce
threshold required to charge a defendant with manufacturing marijuana under
AS 11.71.040(a)(2).)
               Because we see no reason to distinguish, for purposes of double jeopardy,
between McGowen’s act of growing marijuana and his act of possessing that same
marijuana once it was grown, we conclude that McGowen’s conviction for
manufacturing marijuana must merge with his convictions for possessing the same
marijuana.


        Conclusion
               We direct the superior court to merge Counts I, II, and III — i.e., to enter
one merged conviction for misconduct involving a controlled substance in the fourth
degree based on the jury’s four guilty verdicts.




   15
        Id. at 495 n.6.

                                           –5–                                       2477
