State of Iowa v. Irvin Johnson, Jr. ( 2020 )

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
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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
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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).