                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0109
                              Filed March 18, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

IRVIN JOHNSON, JR.,
      Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, David F. Staudt,

Judge.



      A defendant appeals his convictions for felony eluding and marijuana

possession, contending they should merge. CONVICTIONS VACATED IN PART

AND REMANDED FOR CORRECTION OF ILLEGAL SENTENCE.



      Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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TABOR, Judge.

       Irvin Johnson Jr. contends his serious-misdemeanor convictions for

possessing marijuana were “necessarily included” in his felony convictions for

eluding—enhanced based on marijuana possession. He argues the district court

should have entered judgment only on the greater offenses. See Iowa Code

§ 701.9 (2017). This merger question hinges on whether our legislature intended

cumulative punishments. Because we find no clear legislative intent to impose

double punishment, we conclude the serious misdemeanors should merge into the

felonies. We remand for correction of Johnson’s illegal sentence.

       I.     Facts and Prior Proceedings

       This appeal involves two criminal files. The first case originated in May

2017, when Waterloo police tried to stop Johnson for driving while his license was

barred. Johnson ignored the officer’s lights and sirens and sped away—driving

thirty miles per hour over the speed limit. After the chase, officers found marijuana

near the driver’s side door.

       The second case started in February 2018 when police again tried to stop

Johnson for driving while barred. Johnson drove sixty miles per hour in a twenty-

five-mile-per-hour zone to evade the officer. The officer saw Johnson toss a

baggie from his window before the suspect lost control and hit a tree. Later testing

revealed the baggie contained marijuana.

       In both cases, the State charged Johnson with felony eluding while

possessing marijuana, in violation of Iowa Code section 321.279(3)(b), a class “D”

felony, and possession of marijuana, in violation of Iowa Code section 124.401(5),
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a serious misdemeanor.1 After accepting his guilty pleas, the court imposed

concurrent terms of five years for the felonies and 180 days on the misdemeanors.

Johnson now challenges those sentences as illegal.

       II.    Scope and Standards of Review

       Johnson alleges both a double jeopardy violation and a statutory merger

problem under section 701.9. See State v. West, 924 N.W.2d 502, 505 (Iowa

2019) (recognizing statutory merger of lesser included offense into greater offense

relates to double jeopardy though West did not raise a constitutional claim). We

review statutory claims for errors at law. Id. at 504. But because Johnson also

raises a constitutional issue, our review is de novo. See State v. Lewis, 514

N.W.2d 63, 68 (Iowa 1994).

       III.   Analysis

       To address Johnson’s claim, we look to Iowa’s merger statute, which

codifies the double jeopardy protection against cumulative punishments. See

State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995). That statute provides: “No

person shall be convicted of a public offense which is necessarily included in

another public offense of which the person is convicted.” Iowa Code § 701.9. The

sticky question is what the legislature meant by “necessarily included.” West, 924

N.W.2d at 505, 512 (explaining that phrase contains “a heavy dose of ambiguity”).

       Distilled down, “the question of whether an offense is necessarily included

in a greater offense is a question of legislative intent.” Id. Our quest for legislative



1The State also charged Johnson with driving while barred and another marijuana-
possession count under the accommodation statute—offenses he does not
challenge on appeal.
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intent takes two steps. Halliburton, 539 N.W.2d at 344. First, we decide whether

the crimes meet the legal elements test for lesser included offenses, known as the

Blockburger test.2 State v. Gallup, 500 N.W.2d 437, 441 (Iowa 1993). That test is

“a tool in the analysis but is not solely determinative” of what punishment the

legislature intended to impose. West, 924 N.W.2d at 512. If a person cannot

commit the greater offense without committing the lesser offense, we presume the

legislature intended them to merge. West, 924 N.W.2d at 507. But the State can

overcome that presumption by showing “a clear expression of legislative intent to

impose multiple punishments.” Id.; see also State v. Burgos, 155 A.3d 246, 278

(Conn. Ct. App. 2017) (placing burden on the State to rebut the presumption

created under the Blockburger test).

         The clearest expression of legislative intent is an explicit statement in the

criminal statute that the drafters intended multiple punishments despite an identity

of elements. See, e.g., Missouri v. Hunter, 459 U.S. 359, 362 (1983) (analyzing

state statute that stated sentence for crime of armed criminal action

“shall be in addition to any punishment provided by law for the crime committed

by, with, or through the use, assistance, or aid of a dangerous or deadly weapon”).

But we may also divine legislative intent to permit multiple punishments from the

overall sentencing scheme. West, 924 N.W.2d at 511–12.

         The State concedes it would be impossible to commit felony eluding in

violation of section 321.279(3)(b) (eluding enhanced to a felony for possessing



2   Blockburger v. United States, 284 U.S. 299, 304 (1932).
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marijuana under section 124.401) and not also violate section 124.401

(possession of marijuana). So the inquiry turns to whether the legislature intended

multiple punishments.

       When considering this second step, Iowa courts have identified factors that

signal a legislative intent to impose cumulative punishments. A key factor is the

classification of the offense. If the legislature classified both the greater offense

and the lesser offense as class “D” felonies, the lawmakers likely intended the

offender suffer double punishment. See Halliburton, 539 N.W.2d at 344 (reasoning

legislature intended to punish both possession of an offensive weapon by a felon

and possession of an offensive weapon); Lewis, 514 N.W.2d at 69 (finding a

legislative intent to punish defendant for both criminal gang participation and the

underlying criminal act of terrorism).

       The legislative intent to punish both offenses appears even stronger when

the penalty for the lesser-included offense is more severe than the sentence for

the greater offense. See, e.g., West, 924 N.W.2d at 512 (rejecting merger of lesser

offense of delivery of a controlled substances (a class “C” felony) into greater

offense of involuntary manslaughter (a class “D” felony)); Gallup, 500 N.W.2d at

443 (holding lesser offense of delivery (carrying twenty-five year sentence) did not

merge into drug-tax stamp offense (carrying five-year sentence)).          In these

instances, if the legislature did not intend cumulative punishment, “there would be

little point to the greater offense.” West, 924 N.W.2d at 511.

       Another clue that the legislature expected cumulative punishment lies in

differing aims of the two statutes. Id. at 510. For instance, our supreme court

reasoned the code sections at issue in Halliburton focused on different dangers—
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section 724.3 on harmful weapons and section 724.26 on harmful persons—so the

legislature intended both crimes to carry a separate sting. 539 N.W.2d at 344–45.

Similarly, in State v. Reed, the court found an intent for cumulative sentences

because the ongoing-criminal-conduct statute focused on reducing the economic

power of those profiting from illegal business, while section 124.401 sought to

curtail the trafficking of controlled substances. 618 N.W.2d 327, 336 (Iowa 2000).

      With that merger test fresh in mind, we turn to the offenses at issue. As the

State notes, we addressed a similar included-offense inquiry in State v. Rice, 661

N.W.2d 550 (Iowa Ct. App. 2003). The question in Rice was whether operating

while intoxicated (OWI) merged into eluding, enhanced to a felony because the

driver was exceeding the speed limit by twenty-five miles per hours while impaired.

Id. at 551. We found a clear legislative intent to impose cumulative punishment

for both eluding, a class “D” felony, and second-offense OWI, an aggravated

misdemeanor. Id. at 551–52. We reasoned both provisions “were designed for

the protection of the public” but we saw some daylight between them because

“each statute was meant to protect against a different form of illegal conduct.” Id.

at 551. Ultimately, we concluded merger “would thwart the legislative design of

321J.2 and its subparts, which detail a number of offense-specific sentencing

provisions,   including    mandatory     minimums       and    subsequent-offense

enhancements.” Id. at 552.

      Faced with a similar set of facts in State v. Eckrich, we followed Rice in

deciding the defendant’s separate convictions for felony eluding, operating while

intoxicated, and possession of a controlled substance would stand. 670 N.W.2d

647, 648 (Iowa Ct. App. 2003). Eckrich inferred legislative intent for cumulative
                                        7


punishment by noting the sanctions for eluding did not include several

punishments specific to OWI including driver’s license revocation, substance-

abuse evaluation and treatment, and a drinking driver’s course. Id. at 649–50.

Eckrich also noted section 901.5(10) required license revocation of any person

convicted under section 124.401. Id. at 650.

      In this appeal, Johnson argues Eckrich is no longer valid because the

legislature amended section 901.5(10) to strike the automatic revocation of a

driver’s license for convictions under section 124.401. See 2018 Iowa Acts ch.

1172, § 102. Johnson asserts the amendment leaves no penalties applying to the

possession offense that do not apply to felony eluding.

      The State contests that assertion—noting renumbered Iowa Code

sections 901.5(10) and (11) continue to give district courts discretion to deny

federal and state benefits to people convicted of drug possession. The State also

points out the $10 drug abuse resistance education (DARE) surcharge and the

$125 law enforcement initiative surcharge apply to drug convictions but not

eluding. See Iowa Code §§ 911.2, 911.3. Finally, the State notes people convicted

of drug possession are subject to subsequent-offense enhancements if they violate

the statute again.   See Iowa Code § 124.401(5).          The State believes that

enhancement scheme shows the legislature’s intent to punish both offenses. See

Rice, 661 N.W.2d at 552.

      Having weighed the parties’ positions, we turn to the core question. Has

the State overcome the presumption of merger under the Blockburger elements

test by showing a clear expression of legislative intent to impose multiple

punishments? After the recent amendment of section 901.5, it is less clear the
                                          8

legislature intended double punishment. Eckrich found legislative authorization for

multiple punishments because merger would have insulated the marijuana

offender from automatic license revocation. 670 N.W.2d at 650. With that added

penalty off the table, the legislature likely believed that using the driver’s

possession of marijuana to enhance the eluding offense from a misdemeanor to a

felony was penalty enough. As it now stands, the legislative intent to impose

cumulative punishment for eluding and mere possession of marijuana is far from

clear.

         We note the legislature did not make its intent explicit in the code. Cf.

Hunter, 459 U.S. at 362. We thus turn to the interpretive approach in West, where

our supreme court recently reinforced its commitment to the logic of Gallup and

Halliburton. See 924 N.W.2d at 512.           Unlike those cases, the asymmetrical

classification of felony eluding and serious-misdemeanor drug possession does

not reveal a legislative intent to punish both. Here, the greater offense retains its

full effect after merger. Contrast id. at 511 (rejecting merger because “lesser”

crime had greater penalty). And unlike those cases, these statutes are not aimed

at combatting different evils.    Felony eluding focuses on dangerous driving,

deemed more dangerous because the driver possesses marijuana. The danger

posed by marijuana possession alone is subsumed in that felony enhancement.

Unlike West, Gallup, and Halliburton, the State offers little to show the legislature’s

clear intent to punish possession of marijuana over and above felony eluding

enhanced based on the possession of marijuana.

         If anything, the State misreads Rice and Eckrich as holding that any

divergence in the sanctions for the lesser offense from that of the greater offense
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would reflect a clear legislative intent to impose cumulative punishments. First,

Rice addresses the unique array of offense-specific sentencing provisions in

chapter 321J and does not bind our decision here. Second, Eckrich mentions only

license suspension as the extraneous penalty for drug possession. With the 2018

legislative amendment, that penalty is gone. When the legislature enacts a statute,

we assume “it is aware of the state of the law.” Rhoades v. State, 880 N.W.2d

431, 446 (Iowa 2016). This legislative history suggests a return to the presumption

that possession of marijuana, as a necessary included offense of felony eluding,

is subject to merger under section 701.9.

      Finally, we are not convinced the legislature signaled its clear intent for

cumulative punishment only by applying $135 in surcharges to serious

misdemeanor drug possession and not to felony eluding.            See Iowa Code

§§ 911.2, 911.3. In addition, the mere possibility that the sentencing court would

exercise its discretion to deny federal or state benefits or that the offender may

avoid a later recidivism enhancement if they again violate section 124.401(5) are

not obvious indicators of the legislative intent to allow cumulative punishments for

marijuana possession and felony eluding.
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      After examining the language of the statutes and the legislative history, we

conclude the State failed to rebut the presumption created by the Blockburger test

that marijuana possession was a necessarily included offense of felony eluding

enhanced by the driver’s possession of marijuana. These offenses must merge

under section 701.9 and the double jeopardy clause.3

      CONVICTIONS        VACATED       IN    PART     AND    REMANDED         FOR

CORRECTION OF ILLEGAL SENTENCE.




3Because Johnson is entitled to a resentencing as a result of a direct appeal, the
convictions for possession of marijuana are vacated. This disposition is consistent
with the recent supreme court case of Sahinovic v. State, ___ N.W.2d ___, ___
n.3, 2020 WL 1069494, at *4 (Iowa 2020), and our conclusion in the unpublished
case State v. Henderson, No. 18-1426, 2019 WL 2872314, at *4 (Iowa Ct. App.
July 3, 2019).
