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

IN THE SUPREME COURT OF IOWA
No. 19–0109
Submitted September 17, 2020—Filed October 16, 2020
STATE OF IOWA,
Appellee,
vs.
IRVIN JOHNSON JR.,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
David F. Staudt, Judge.
The State seeks further review of a court of appeals decision holding
that convictions for possession of marijuana merged with convictions for
felony eluding with marijuana. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT AND SENTENCE AFFIRMED.
Waterman, J., delivered the opinion of the court, in which all justices
joined.
Martha J. Lucey, State Appellant Defender, and Shellie L. Knipfer,
Assistant Appellate Defender, for appellant.
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Thomas J. Miller, Attorney General, Timothy M. Hau, Assistant
Attorney General, Brian J. Williams, County Attorney, and Jeremy L.
Westendorf, Assistant County Attorney, for appellee.
3
WATERMAN, Justice.
In this appeal, we must decide whether the defendant’s convictions
for misdemeanor possession of marijuana merge with his convictions for
felony eluding while possessing marijuana. The defendant threw
marijuana out his car window during two separate police chases. He pled
guilty to both possession of marijuana and eluding with marijuana, and
the district court imposed concurrent sentences. He appealed, arguing
the possession convictions merged with the eluding charges.
The State concedes that under the legal-elements test, it is
impossible to commit felony eluding with marijuana without possessing it.
The State argues the statutory scheme nevertheless demonstrates the
legislature intended cumulative punishments for these offenses. Following
transfer, the court of appeals held that the convictions merged in light of
2018 legislation eliminating the automatic revocation of driving privileges
for possession of marijuana. The State applied for further review, and we
granted its application.
On our review, we hold the convictions do not merge. The legal-
elements test for merger is satisfied, but we disagree with the court of
appeals’ holding that elimination of the automatic license penalty for
possession requires merger. The remaining penalties and enhancements
for possession demonstrate the legislature has prescribed cumulative
punishments for the two offenses. Accordingly, for the reasons elaborated
below, we vacate the decision of the court of appeals and affirm the district
court’s judgment and sentences.
I. Background Facts and Proceedings.
This case arises from two separate police chases. On May 24, 2017,
Waterloo Police Officer Tyler Brownell saw Irvin Johnson Jr. driving on
Franklin Street. Officer Brownell recognized the vehicle and knew that
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Johnson’s driver’s license remained barred due to his status as a habitual
offender.
Officer Brownell turned on his emergency lights to initiate a traffic
stop. When Johnson failed to pull over, Officer Brownell activated his
siren. Johnson sped away and, during the ensuing pursuit, drove through
three stop signs while exceeding fifty-five miles per hour in a twenty-five-
mile-per-hour zone. The auto chase ended after Johnson made a hard
turn into a driveway, sideswiped a parked vehicle, and fled on foot,
jumping a tall fence while ignoring Officer Brownell’s shouts to stop.
Another officer found Johnson in an alley and arrested him.
Officer Brownell noted the vehicle interior smelled of “fresh”
marijuana but found none inside. He searched near the vehicle and found
an orange prescription pill bottle containing marijuana buds. Although
the ground was wet, the bottle had no condensation, leading Officer
Brownell to conclude the bottle had just landed there.
The second chase happened on February 16, 2018. Waterloo Police
Officer Andrew Tindall was driving a marked squad car and noticed
Johnson driving a gray Nissan SUV. Officer Tindall knew Johnson’s
driver’s license remained barred. Officer Tindall drove behind Johnson
and activated his emergency lights. Johnson rapidly accelerated, and
Officer Tindall activated his sirens and pursued.
During this chase, Johnson drove approximately sixty miles per
hour in a twenty-five mile-per-hour zone and ran three stop signs. Officer
Tindall saw Johnson toss a small plastic bag out of the window and
radioed the location, where another officer found the bag containing
marijuana. The chase ended when Johnson lost control of the Nissan,
struck a tree, and was apprehended.
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For each incident, the State charged Johnson with felony eluding
while possessing marijuana, in violation of Iowa Code section 321.279(3)
(2017); driving while barred, in violation of sections 321.561 and 321.555;
and possession of marijuana, first offense, in violation of section
124.401(5). In one case, Johnson pled guilty to all three counts. In the
other, Johnson pled guilty to felony eluding while possessing marijuana
and possession of marijuana, and the district court dismissed the driving-
while-barred charge. In both cases, the district court accepted Johnson’s
guilty pleas and imposed concurrent sentences of five years for the felonies
and 180 days for the misdemeanors.
Johnson appealed, contending the marijuana possession
convictions must merge with the eluding convictions. We transferred the
case to the court of appeals, which vacated his convictions in part and
remanded for correction of an illegal sentence. The court of appeals
determined that the marijuana possession charges were necessarily
included offenses of felony eluding enhanced by the driver’s possession of
marijuana. As such, the court of appeals held that “these offenses must
merge” and vacated Johnson’s convictions for possession of marijuana.
The State applied for further review, and we granted its application.
II. Standard of Review.
We review an alleged failure to merge convictions as required by
statute for correction of errors at law. State v. West, 924 N.W.2d 502, 504
(Iowa 2019); State v. Love, 858 N.W.2d 721, 723 (Iowa 2015). We review
constitutional double jeopardy claims de novo. State v. Lindell, 828
N.W.2d 1, 4 (Iowa 2013).
III. Analysis.
We must decide whether Johnson’s serious misdemeanor
convictions for possession of marijuana in violation of Iowa Code section
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124.401(5) merge with his felony convictions for eluding while possessing
marijuana in violation of section 321.279(3)(b).
We begin with the applicable statute governing merger. Iowa Code
section 701.9 provides, “No person shall be convicted of a public offense
which is necessarily included in another public offense of which the person
is convicted.” “This statute codifies the double jeopardy protection against
cumulative punishments.” State v. Halliburton, 539 N.W.2d 339, 344
(Iowa 1995).1 “The Double Jeopardy Clause prohibits multiple
punishments for the same offense” and thereby “prevents a court from
imposing a greater punishment than the legislature intended.” Id. The
legislature defines the offenses and can provide for multiple punishments
for separate offenses that apply to the same conduct. See Gamble v.
United States, 587 U.S. ___, ___, 139 S. Ct. 1960, 1965 (2019) (reiterating
that the double jeopardy right “protects individuals from being twice put
in jeopardy ‘for the same offence,’ not for the same conduct or actions’ ”
(quoting Grady v. Corbin, 495 U.S. 508, 529, 110 S. Ct. 2084, 2097 (1990)
(Scalia, J., dissenting), overruled on other grounds by United States v.
Dixon, 509 U.S. 688, 704, 113 S. Ct. 2849, 2860 (1993))). “If the Double
Jeopardy Clause is not violated because the legislature intended double
punishment, section 701.9 is not applicable and merger is not required.”
Halliburton, 539 N.W.2d at 344.
When determining whether the legislature provided for double
punishments, our first step is to apply the legal-elements test that
compares “the elements of the two offenses to determine whether it is
1The Double Jeopardy Clause of the United States Constitution provides: “[N]or
shall any person be subject for the same offence to be twice put in jeopardy of life or limb
. . . .” U.S. Const. amend. V. The Iowa Constitution provides: “No person shall after
acquittal, be tried for the same offence.” Iowa Const. art. I, § 12. Johnson does not
request a different analysis under the Iowa Constitution.
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possible to commit the greater offense without also committing the lesser
offense.” Id. The State charged Johnson with felony eluding while
possessing marijuana, under section 321.279(3), and possession of
marijuana, under section 124.401(5). The eluding statute provides,
The driver of a motor vehicle commits a class “D” felony if the
driver willfully fails to bring the motor vehicle to a stop or
otherwise eludes or attempts to elude a marked official law
enforcement vehicle that is driven by a uniformed peace officer
after being given a visual and audible signal as provided in
this section, and in doing so exceeds the speed limit by
twenty-five miles per hour or more, and if any of the following
occurs:
a. The driver is participating in a public offense, as
defined in section 702.13, that is a felony.
b. The driver is in violation of section 321J.2 or 124.401.
c. The offense results in bodily injury to a person other
than the driver.
Iowa Code § 321.279(3) (emphasis added). Iowa Code section 124.401 is
included as an element of the eluding statute. Id. Section 124.401(5),
criminalizing possession of marijuana, in turn provides:
It is unlawful for any person knowingly or intentionally to
possess a controlled substance unless such substance was
obtained directly from, or pursuant to, a valid prescription or
order of a practitioner while acting in the course of the
practitioner’s professional practice, or except as otherwise
authorized by this chapter.
Id. § 124.401(5). There is no element of section 124.401(5) that is not
included in section 321.279(3). As the State concedes, one cannot violate
section 321.279(3) (eluding while possessing marijuana) without violating
section 124.401(5) (possession of marijuana). Under the legal-elements
test, the crimes should merge.
But our cases require a second step to the analysis: “[W]hether the
legislature intended multiple punishments for both offenses.” Halliburton,
539 N.W.2d at 344. In 2003, on this basis, the court of appeals found that
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convictions for felony eluding while possessing marijuana, operating while
intoxicated, and possession of marijuana did not merge. See State v.
Eckrich, 670 N.W.2d 647, 650 (Iowa Ct. App. 2003). The court noted that
marijuana possession resulted in automatic license revocation, whereas
eluding while possessing marijuana did not. Id. The court of appeals
concluded that “each statute was designed to address a separate form of
illegal conduct and the punishments designed accordingly.” Id.However, in 2018 our legislature eliminated the automatic
revocation of driving privileges upon a conviction for possession of
marijuana. 2018 Iowa Acts ch. 1172, § 102 (codified at Iowa Code § 901.5(2019)). Reasoning from this fact, the court of appeals concluded that
Eckrich was no longer good law and the convictions should merge. The
State nevertheless argues that other penalties unique to convictions under
section 124.401(5) demonstrate the legislature provided for cumulative
punishments for these offenses. We agree with the State.
Most importantly, merger would eliminate the subsequent-offense
enhancements for marijuana possession. See Iowa Code § 124.401(5)
(providing escalating criminal penalties for subsequent convictions).2 In
State v. Freeman, we determined the statutory enhancements for repeated
possession convictions are intended to “deter and punish incorrigible
offenders.” 705 N.W.2d 286, 288 (Iowa 2005) (quoting State v. Conley, 222
N.W.2d 501, 503 (Iowa 1974)). In State v. Rice, the court of appeals held
that merging eluding and a second-offense OWI “would thwart the
legislative design of [the OWI statute] and its subparts, which detail a
2Iowa Code sections 124.401(5), 903.1(1)(b), and 903.1(2) provide that the
maximum punishment for the first offense possession of marijuana is six months in jail
and a fine of $1000; for a second offense, one year in jail and a fine of $1875; and for a
third offense, two years imprisonment and a fine of $6250. Iowa Code section 321.279(3)
(eluding while possessing marijuana) is not referenced in Iowa Code section 124.401(5)
as counting as a prior offense of possession of marijuana.
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number of offense-specific sentencing provisions, including mandatory
minimums and subsequent-offense enhancements.” 661 N.W.2d 550, 552
(Iowa Ct. App. 2003). By the same logic, it would undermine the
sentencing enhancements for recidivists convicted of marijuana
possession by merging that offense with eluding. If those offenses merged
to vacate the possession convictions, then Johnson, if convicted of
possession again, would face only the minimum six months in jail for a
first offense, rather than two years imprisonment for a third offense; yet
someone convicted of a third possession offense without eluding would
face the two-year sentence. We cannot conclude the legislature intended
those convicted of eluding with marijuana to escape subsequent
enhancements that apply to those convicted of possession alone. To do so
could create a perverse incentive to flee the police.
We find further indications the legislature intended multiple
punishments for possession and eluding based on the other penalties or
sentencing options unique to section 124.401, including the drug abuse
resistance education surcharge, the law enforcement initiative surcharge,
and the sentencing options to deny federal and state benefits. Iowa Code
§§ 901.5(11)–(12); 911.2; 911.3.3 Another enhancement applies for
possessing or controlling a firearm while violating section 124.401, and
defendants on probation can be subject to random drug testing. Id.§ 124.401(1)(e), (5). All of those would be avoided if the possession
conviction merged with eluding.
Additionally, Iowa Code section 124.404, entitled “Penalties under
other laws” provides, “Any penalty imposed for violation of this division
shall be in addition to, and not in lieu of, any civil or administrative penalty
3With the legislature’s elimination of the revocation provision, these subsections
are now (10)–(11). 2018 Iowa Acts ch. 1172, § 102 (codified at Iowa Code § 901.5 (2019)).
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or sanction otherwise authorized by law.”4 This provision does not
expressly refer to criminal sanctions, but those arguably are included in
the phrase “any sanction otherwise authorized by law.” This interpretation
makes sense because the preceding phrase mentions civil and
administrative penalties, leaving only criminal sanctions to complete the
scope of the provision. If not construed to include other criminal laws, the
phrase would be surplusage. The State argues section 124.404 shows the
legislature “intends multiple punishments for criminal possession of a
controlled substance, even where that crime is used to aggravate another.”
The Georgia Court of Appeals interpreted an identically worded statute to
hold its legislature intended multiple criminal punishments arising from
the same acts. Head v. State, 285 S.E.2d 735, 738 (Ga. Ct. App. 1981)
(discussing Georgia Code of 1933, section 79A–823 (subsequently
renumbered to section 16-13-44 by 1974 Georgia Laws 221)).5 The Head
court stated, “[A]lthough the statute refers to civil penalties, it is clear the
legislature intended that no conflict was to be inferred between the
penalties of the Act and any other penalties of the law.” Id. We agree.
Iowa Code section 124.404 is akin to a savings statute or antimerger
provision that preserves the unique enhancements and other penalties of
the subchapter notwithstanding any sanctions imposed by other laws.
4Iowa Code section 124.404 is part of the Uniform Controlled Substances Act
adopted by the Iowa legislature. Compare Iowa Code § 124.404 with Unif. Controlled
Substances Act § 404, 9 U.L.A. 5, at 890 (1970). The same provision is found in the
Federal Controlled Substances Act. Controlled Substances Act, 21 U.S.C.A. § 847 (1970).
The purpose of these provisions is to promote uniformity of drug law enforcement between
the states and federal government. Drug Abuse Study Comm. to the Sixty-Fourth Gen.
Assembly of the State of Iowa, Final Report of the Drug Abuse Study Committee to the Sixty-
Fourth General Assembly of the State of Iowa 1 (1971).
5The Georgia statute provides, “Any penalty imposed for violation of this article is
in addition to, and not in lieu of, any civil or administrative penalty or sanction otherwise
authorized by law.” Ga. Code Ann. § 16-13-44 (West 1974).
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Another reason we decline to merge these offenses is that eluding
and drug possession statutes address distinct dangers. We have declined
to merge offenses when the underlying statutes focus on “different
dangers.” Halliburton, 539 N.W.2d at 345. Eluding and an OWI, for
example, “were designed for the protection of the public” but were “meant
to protect against a different form of illegal conduct.” Rice, 661 N.W.2d at
551. The Eckrich court in declining to merge eluding, possession, and
operating while intoxicated offenses, stated that it is “quite evident that
each statute was designed to address a separate form of illegal conduct
and the punishments designed accordingly.” Eckrich, 670 N.W.2d at 650.
Eluding is criminalized to protect society against dangerous driving.
Eluding also penalizes defiance of the law and deters fleeing the police to
avoid capture for other crimes. By contrast, possession of marijuana is
criminalized “to protect the public at-large from substance abusers.” State
v. Caquelin, 702 N.W.2d 510, 513 (Iowa Ct. App. 2005). The different
purposes served by the eluding and possession statutes further support
our conclusion that Johnson’s convictions do not merge.
IV. Disposition.
For those reasons, we vacate the decision of the court of appeals and
affirm the district court’s judgment and sentence.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT AND SENTENCE AFFIRMED.