Charles v. State

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.

THE SUPREME COURT OF THE STATE OF ALASKA

BYRON E. CHARLES, )
) Supreme Court No. S-12944
Petitioner, ) Court of Appeals No. A-09623
)
v. ) Superior Court No. 1KE-05-00765 CR
)
STATE OF ALASKA, ) OPINION
)
Respondent. ) No. 6897 - April 25, 2014
)

Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, First Judicial District, Ketchikan, Kevin Miller,
Judge.

Appearances: Tracey Wollenberg, Assistant Public
Defender, and Quinlan Steiner, Public Defender, Anchorage,
for Petitioner. Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions & Appeals,
Anchorage, and Michael C. Geraghty, Attorney General,
Juneau, for Respondent.

Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen,
Justices, and Eastaugh, Senior Justice.* [Bolger, Justice, not
participating.]

EASTAUGH, Senior Justice.

*
Sitting by assignment made under article IV, section 16 of the Alaska
Constitution.
I. INTRODUCTION

Does the 2008 holding in Doe v. State (Doe I)1 apply to Byron E. Charles,
whose 2006 conviction for violating the Alaska Sex Offender Registration Act (ASORA)
was still on direct review when he argued for the first time, in reliance on our then-recent
Doe I opinion, that applying ASORA to him violated Alaska’s ex post facto clause? We
conclude that it does. In doing so, we adopt for cases on direct review the federal
retroactivity standard announced in Griffith v. Kentucky.2 We also conclude that
Charles’s prior failure to raise the ex post facto issue does not bar him from doing so
now: Manifest injustice would result if he could not challenge on direct review his
conviction for violating a criminal statute that, under our constitution, may not be applied
to him.
We therefore reverse the court of appeals’s 2007 decision that affirmed
Charles’s judgment and reverse his 2006 judgment of conviction.
II. FACTS AND PROCEEDINGS
Byron E. Charles was convicted of a sex offense in the 1980s. In 1994 the
Alaska Legislature enacted ASORA.3 The statute was expressly retroactive: It stated
that persons convicted of sex offenses were required to register as sex offenders
“regardless of whether the conviction occurred before, after, or on the effective date of

1
189 P.3d 999, 1019 (Alaska 2008) (holding that Alaska Sex Offender
Registration Act (ASORA) violates ex post facto clause when applied to a person who
committed the underlying sex offense before ASORA’s enactment).
2
479 U.S. 314, 328 (1987) (holding that new constitutional rules apply to
cases pending on direct review or that are not yet final).
3
Ch. 41, SLA 1994; see also Doe I, 189 P.3d at 1000 & n.3 (describing
enactment and scope of ASORA).

-2- 6897

[ASORA].”4 ASORA accordingly required Charles to maintain sex offender
registration.5
In 2006 Charles was charged with misdemeanor failure to register as a sex
offender. At Charles’s failure-to-register trial, a Ketchikan police officer testified that
he checked Charles’s 2005 registration and found that the listed address did not exist.
Charles testified that he had written the nonexistent address, but asserted that he likely
confused a past address with a family member’s address. The trial judge, sitting as the
trier of fact, found that Charles was aware of a substantial probability that the address
was inaccurate and was thus guilty of failure to register. A judgment of conviction for
misdemeanor failure to register as a sex offender was entered against Charles in 2006.
Charles filed a timely appeal in which he argued only that the trial court’s
finding of guilt was inconsistent with its finding Charles was credible, that the trial court
erred in ruling on an evidentiary issue, and that the evidence was not sufficient to sustain
the conviction.6 He did not argue that applying ASORA to him would be an ex post
facto violation. The court of appeals affirmed Charles’s conviction in 2007.7

4
Ch. 41, § 4, SLA 1994 (codified as former AS 12.63.100(2) (1994),
currently codified as AS 12.63.100(5)).
5
See AS 11.56.840 (criminalizing failure to register); AS 12.63.010
(describing registration requirements).
6
Charles v. State, Mem. Op. & J. No. 5277, 2007 WL 4227335, at *1
(Alaska App., Nov. 28, 2007).
7
Id. Charles’s sentence had been stayed by the superior court pending the
outcome of his appeal. The record contains no indication that the court of appeals or
superior court has vacated the stay. Charles does not contend that he is now in custody.

-3- 6897

 In 2008 we issued our opinion in Doe I, holding that applying ASORA to
Doe violated the Alaska Constitution’s ex post facto clause.8 Charles then filed a timely
pro se petition for hearing to this court; relying on Doe I, he argued that his failure-to­
register conviction violated the ex post facto clause. Charles had never raised an ex post
facto argument in the superior court or in his direct appeal to the court of appeals. The
State opposed Charles’s petition, arguing that Doe I did not retroactively excuse
Charles’s failure to comply with ASORA. In light of Doe I’s possible impact on
Charles’s conviction, we remanded to the court of appeals to consider these questions:
1. Assuming Charles is now raising an ex post facto
challenge to application of ASORA to him, did Charles waive
that argument, and if so, is an ex post facto challenge
waivable?
2. Should the principle of direct review retroactivity as
described in the federal courts, see Griffith v. Kentucky, 479
U.S. 314 (1987), be adopted as a principle of Alaska law, and
if so, under the principle of direct review retroactivity, should
Charles’s 2006 conviction for failure to register be set
aside? [9]
On remand, Charles (by then represented by counsel) and the State filed
supplemental briefs and presented oral arguments.10 Noting that we had not entered a
final order with respect to Charles’s petition, and had thus not explicitly either granted
or denied the petition, the court of appeals treated the remand as a request for its “input

8
189 P.3d at 1019; see also Alaska Const. art. I, § 15 (“No bill of attainder
or ex post facto law shall be passed.”).
9
Alaska Supreme Court Order, File No. S-12944 (Jan. 7, 2009) (footnote
integrated into text).
10
Charles v. State, 287 P.3d 779, 781 (Alaska App. 2012).

-4- 6897

and recommendations on these issues,” not as a request to decide these issues.11 Its per
curiam opinion suggested the following: (1) Ex post facto rights should be intentionally
waivable and unintentionally forfeitable;12 (2) Charles unintentionally forfeited his ex
post facto claim, limiting review to plain error;13 (3) Doe I should retroactively apply to
Charles’s case under either Alaska’s existing retroactivity standard (the Judd standard14)
or the federal standard for direct review retroactivity (the Griffith standard 15), making it
unnecessary to decide whether to adopt the federal standard;16 and (4) Charles’s
conviction violated the ex post facto clause and was plain error.17 Chief Judge Coats
concurred but wrote separately to emphasize the benefits of retaining Alaska’s existing
retroactivity standard.18
After the court of appeals issued its per curiam opinion, we asked the
parties to file supplemental briefs.

11
Id.
12
Id. at 781-82.
13
Id. at 789.
14
See Judd v. State, 482 P.2d 273, 278 (Alaska 1971) (assessing retroactivity
by weighing the following: “(a) the purpose to be served by the new standards; (b) the
extent of the reliance by law enforcement authorities on the old standards; and (c) the
effect on the administration of justice of a retroactive application of the new standards”).
15
Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (holding that new
constitutional rules must be applied retroactively to cases pending on direct review or
that are not yet final).
16
Charles, 287 P.3d at 784-89.
17
Id. at 789-90.
18
Id. at 790-91 (Coats, C.J., concurring).

-5- 6897

III. STANDARD OF REVIEW
This petition presents only questions of law, to which we apply our
independent judgment.19
IV. DISCUSSION
We now resume our consideration of the petition for hearing Charles filed
in 2008. Charles was convicted of failing to register as a sex offender under ASORA.
In Doe I we ruled that ASORA cannot constitutionally be applied to persons who
committed their underlying sex offenses prior to the statute’s enactment.20 As we
recognized by entering our order that remanded Charles’s case to the court of appeals,
there are two potential barriers to applying Doe I to Charles’s conviction. First, because
Doe I was issued after Charles’s 2006 conviction, there is an issue whether Doe I applies
to him retroactively. Second, because Charles raised no ex post facto challenge in the
trial court or the court of appeals, there is an issue whether Charles should be barred from
raising that challenge for the first time in his petition for hearing.
Charles’s supplemental briefing asks us to adopt the recommendations of
the court of appeals and vacate his conviction without requiring full briefing on the
merits. Charles also argues that we should adopt the federal Griffith standard and
accordingly hold that Doe I retroactively bars his conviction. He argues alternatively
that even if we do not adopt the Griffith standard, Doe I retroactively applies to Charles
under the existing Judd standard. He contends that no plain error analysis is necessary,
but that, in any event, his conviction was plain error.

19
State v. Doe A, 297 P.3d 885, 887 (Alaska 2013).
20
Doe v. State (Doe I), 189 P.3d 999, 1019 (Alaska 2008) (“ASORA’s
registration, disclosure, and dissemination provisions violate the protection against ex
post facto laws afforded by the Alaska Constitution as it applies to defendants who
committed their crimes before the legislature enacted ASORA . . . .”).

-6- 6897

 In its supplemental brief the State agrees that we should adopt the Griffith
standard. But it argues that Charles forfeited his ex post facto claim and that review
should be limited to plain error. As to the merits, it refers us to its arguments in State v.
Doe A21 and State v. Stickman.22 The State’s supplemental brief asks us to wait for those
cases to be resolved and to require full briefing before deciding whether Charles’s
conviction should be reversed. As we discuss below in Part IV.C, Doe A and
Stickman have since been resolved.23
A. We Adopt The Griffith Standard For Direct Review Retroactivity.
To determine whether Doe I retroactively applies to Charles’s case, we
begin by analyzing the applicable standard for retroactively applying new constitutional
rules. Broadly speaking, the choice is between two standards: either full retroactivity or
limited (“direct review”) retroactivity.24 As we said in State v. Smart, “[a]pplying a new
constitutional principle to criminal cases on collateral review gives the principle ‘full
retroactivity,’ ” and “[a]pplying a new principle to cases on direct review, to cases at the
trial level, to any case not yet charged, and to crimes not yet committed gives the
principle ‘limited retroactivity.’ ”25 A case is “final” when “a judgment of conviction has
been rendered, the availability of appeal exhausted, and the time for a petition for

21
No. S-14486 (Alaska, filed Oct. 6, 2011).
22
No. A-10441 (Alaska App., filed Mar. 19, 2009).
23
See Doe A, 297 P.3d at 886 (holding Doe I to be binding precedent); Alaska
Court of Appeals Order, File No. A-10441 (May 23, 2013) (granting State’s motion to
dismiss State v. Stickman).
24
See State v. Smart, 202 P.3d 1130, 1134 n.18 (Alaska 2009).
25
Id. (citing Yerrington v. Anchorage, 675 P.2d 649, 651 (Alaska App.
1983)).

-7- 6897

certiorari elapsed or a petition for certiorari finally denied.”26 Because we issued Doe I
before Charles’s time to file a petition for hearing had expired, Charles’s case was not
yet final, and we are thus presented with an issue of limited, or direct review,
retroactivity.
In Judd we identified three criteria to determine whether new constitutional
rules must apply retroactively: “(a) the purpose to be served by the new standards; (b)
the extent of the reliance by law enforcement authorities on the old standards; and (c) the
effect on the administration of justice of a retroactive application of the new standards.”27
We adopted those criteria from the federal standard announced in 1965 by the United
States Supreme Court in Linkletter v. Walker.28 In doing so we noted that the criteria
“apparently [had] been agreed upon by all authorities.”29 But in Griffith, issued in 1987,
the United States Supreme Court abandoned the standard announced in Linkletter for
direct review retroactivity and instead instructed that new constitutional rules will
automatically apply to cases that are not yet final or are on direct review when the new
rule is announced.30 In State v. Smart, issued after Griffith, we explained that “it may be

26
Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987).
27
Judd v. State, 482 P.2d 273, 278 (Alaska 1971).
28
381 U.S. 618, 636-38 (1965).
29
Judd, 482 P.2d at 277.
30
See Griffith, 479 U.S. at 328; see also Smart, 202 P.3d at 1136-38
(discussing decline of Linkletter standard for cases on direct review); Charles v. State,
287 P.3d 779, 784-87 (Alaska App. 2012) (discussing same).

-8- 6897

difficult to defend the use of the Linkletter/Judd standards in cases involving direct
review on the state level.”31
Both Charles and the State ask us to abandon the Judd standard for direct
review retroactivity and adopt Griffith. They reason that adopting Griffith will promote
fairness and support Alaska’s equal protection and due process guarantees by ensuring
that similarly situated defendants — those with cases on direct review — are treated
similarly. The court of appeals’s per curiam opinion suggests that under either the Judd
standard or the Griffith standard our holding in Doe I should retroactively bar Charles’s
conviction.32 The per curiam opinion therefore concludes that we do not need to decide
whether to adopt the Griffith standard.33
Our review of the United States Supreme Court’s reasons for abandoning
the Linkletter criteria persuades us that we should follow suit for direct review
retroactivity. The abandonment of Linkletter began in Williams v. United States.34
There, the Court followed Linkletter and denied retroactive application of a new rule to
a case on direct review.35 But Justice Harlan dissented.36 He argued that new
constitutional rulings should always be applied to cases on direct review; he explained
that it was indefensible to “[s]imply fish[] one case from the stream of appellate review,
us[e] it as a vehicle for pronouncing new constitutional standards, and then permit[] a

31
Smart, 202 P.3d at 1138.
32
Charles, 287 P.3d at 784.
33
Id.
34
401 U.S. 646 (1971).
35
Id. at 651-56.
36
Williams v. United States, 401 U.S. 667 (1971).

-9- 6897

stream of similar cases subsequently to flow by unaffected by that new rule.”37 His
dissent steadily gained acceptance. In 1982 in United States v. Johnson, the Supreme
Court adopted it in place of Linkletter for cases on direct review, although the Court
retained an exception if the new constitutional ruling was a “clear break” from the past
rule.38 Five years later, in Griffith, the Supreme Court dispensed with the “clear break”
exception and thus fully adopted the standard Justice Harlan had proposed for cases on
direct review.39
In Griffith the Supreme Court explained that failing to apply new
constitutional rules to cases on direct review violated two norms of constitutional
adjudication: “the principle that this Court does not disregard current law”40 and the
principle of “treating similarly situated defendants the same.”41 With regard to the first
principle, the Court explained that the “integrity of judicial review” requires the Court
to resolve cases before it on direct review “in light of [the Court’s] best understanding
of governing constitutional principles.”42 With regard to the second principle, the Court
explained in subsequent decisions that Linkletter’s case-by-case weighing of interests
“proved difficult to apply in a consistent, coherent way,” leading to “strikingly divergent

37
Id. at 679.

38
United States v. Johnson, 457 U.S. 537, 549, 562 (1982).

39
Griffith v. Kentucky, 479 U.S. 314, 328 (1987).

40
Id. at 326.
41
Id. at 327.
42
Id. at 323 (quoting Mackey v. United States, 401 U.S. 667, 679 (1971)
(Harlan, J., concurring in judgment)).

-10- 6897

results”43 and “the disparate treatment of similarly situated defendants on direct
review.”44 In Griffith the Court therefore “refused to continue to tolerate the inequity that
resulted from not applying new rules retroactively to defendants whose cases had not yet
become final.”45
Because Judd adopted Linkletter’s case-by-case analysis,46 the current
Alaska standard is susceptible to the same disparate application of new constitutional
rulings: The defendant in the case in which the ruling is announced will receive the
benefit of the ruling, but other defendants with cases still pending before us may be
denied application of our best understanding of governing constitutional principles. We
now have the opportunity to decide whether to follow the same path taken by the United
States Supreme Court and abandon the Linkletter/Judd criteria for direct review
retroactivity.
We overrule a prior decision only when we are “clearly convinced that (1)
a decision was originally erroneous or is no longer sound because of changed conditions;
and (2) more good than harm would result from overruling it.”47

43
Davis v. United States, 131 S. Ct. 2419, 2430 (2011) (quoting Danforth v.
Minnesota, 552 U.S. 264, 273 (2008)).
44
Teague v. Lane, 489 U.S. 288, 303 (1989).
45
Id. at 304 (citing Griffith, 479 U.S. at 323-24).
46
See Judd v. State, 482 P.2d 273, 278 (Alaska 1971).
47
Native Vill. of Tununak v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 303 P.3d 431, 447 (Alaska 2013) (citing Kinegak v. State, Dep’t of
Corr., 129 P.3d 887, 889 (Alaska 2006)).

-11- 6897

 In Judd we explained that retroactivity standards involve “a value
judgment” and that we gave substantial weight to public confidence in the judiciary.48
We reasoned that because police, prosecuting authorities, and the public rely on previous
statements of the law, “the application of a new interpretation to past conduct which was
accepted by previous judicial decisions leads us to confusion and a hesitancy to accept
any theory except one of gamesmanship with corresponding disrespect for our whole
system of laws.”49 We relied on what we there termed “the practical problems” of public
and law enforcement reliance on previous statements of law as justification for adopting
two of the Linkletter criteria — the extent of reliance by law enforcement on past rules
and retroactivity’s effect on the administration of justice.50 But we also recognized a
countervailing interest: Denying retroactive application of a new ruling to cases pending
on direct review leads to disparate application of legal rules and “in a particular case the
court may appear to countenance illegal acts on the behalf of the police.”51 Indeed, this
interest in preventing unfair or unconstitutional prosecutions is enshrined in the
remaining Linkletter criterion — the purpose to be served by the new rule.52 By
weighing the purpose of the new rule against law enforcement reliance and
administrative burdens, the Judd balancing test enables, but does not guarantee, the
application of new constitutional rules to cases pending on direct review. In this way,
the Judd balancing test can ameliorate some concern with courts having a hand in the

48
Judd, 482 P.2d at 278.
49
Id. at 278-79.
50
See id. at 278.
51
Id.
52
See id.

-12- 6897

“dirty business”53 of facilitating prosecutions stemming from unconstitutional laws or
procedures. And we have held that if the purpose of a new rule is to ensure the fairness
of a trial, that purpose always outweighs the countervailing interests and allows for
retroactive application to cases on direct review.54 Nonetheless, if a rule is not clearly
related to the fairness of a trial — i.e., “where the purpose . . . is not to minimize arbitrary
or unreliable fact findings”55 — Judd still potentially allows the inequity of selectively
applying a new rule to the party before us while denying its application to other parties
with cases currently pending on direct review.56
For the reasons the United States Supreme Court discussed in Griffith, we
now conclude that disregarding our best understanding of constitutional principles and
disparately applying legal rules to cases on direct review undermines the integrity of
judicial review and violates the principle of treating similarly situated defendants the

53
Id. at 278 (quoting People v. Edwards, 458 P.2d 713, 722 (California 1969)
(Peters, J., dissenting)).
54
Farleigh v. Municipality of Anchorage, 728 P.2d 637, 6 39-41 (Alaska
1986).
55
Id. at 640 (quoting State v. Glass, 596 P.2d 10, 14 (Alaska 1979)).
56
See Rutherford v. State, 486 P.2d 946, 952-53 (Alaska 1971) (explaining
that a new rule has been given retroactive effect “[w]here the major purpose of [the rule]
is to overcome an aspect of the criminal trial which substantially impairs its truth-finding
function,” but noting that analyzing the other Judd factors is necessary because the
impact on the truth-finding process at trial is a “question of probabilities” (quoting
Williams v. United States, 401 U.S. 646, 653 (1971); Stovall v. Denno, 388 U.S. 293, 290
(1967))).

-13- 6897

same.57 We therefore hold that Judd was erroneous to the extent it potentially limited the
application of new constitutional rules to criminal cases pending on direct review.58
We also conclude that more good than harm will come from adopting
Griffith’s bright-line standard for direct review retroactivity. Applying our best
understanding of constitutional law to all defendants on direct review does more good
than allowing disparate treatment merely because of law enforcement reliance or
administrative burdens. By requiring the application of our best understanding of the
constitution to all cases pending before us, Griffith leads to more rational results than
Judd. And in guaranteeing similar treatment of similarly situated defendants, Griffith is
more fair than Judd. Furthermore, adopting Griffith will not result in overwhelming
administrative burdens.59 Indeed, abandoning Judd and adopting Griffith for cases on
direct review does not shift the law far from how we have applied Judd in practice: to
require direct review retroactivity “where a new rule serves to ensure defendants a fair
trial.”60 Although Griffith potentially may result in more reversals, it removes the
uncertainty of litigating whether a new rule relates to the fairness of a trial and

57
See Griffith v. Kentucky, 479 U.S. 314, 322-23 (1987).
58
Our conclusion today that Judd was erroneous is bolstered by changed
conditions. While we are not bound to federal retroactivity standards for new state
constitutional rules, see Garhart v. State, 147 P.3d 746, 748 (Alaska App. 2006)
(declining to apply federal retroactivity analysis to new state constitutional rule), in Judd
we were persuaded in part to adopt the Linkletter criteria because of their universal
acceptance. See Judd, 482 P.2d at 277-78 (explaining that the Linkletter criteria
“apparently have been agreed upon by all authorities”). But after Griffith it is no longer
true that the weight of authority supports Linkletter for direct review retroactivity.
59
Cf. Lauderdale v. State, 548 P.2d 376, 383-84 (Alaska 1976) (rejecting full
retroactivity because “many hundreds, if not thousands” of convictions would be upset,
but applying ruling to cases pending on direct review).
60
Farleigh, 728 P.2d at 640.

-14- 6897

guarantees uniform application of new constitutional rules to similarly situated
defendants. Furthermore, in adopting Griffith we will be able to draw from an available
body of federal law. And our state-law retroactivity analysis will align more closely with
the federal-law analysis that guarantees that we satisfy minimum federal standards.61
Because we conclude that in retrospect it was error to adopt the Linkletter
criteria for cases on direct review and that adopting Griffith for Alaska will do more good
than harm, we overrule Judd and adopt Griffith as the standard for direct review
retroactivity in Alaska.
We decline to follow the suggestion of the court of appeals that we defer
this determination.62 The per curiam opinion reasoned that Doe I would retroactively
apply to Charles’s case under the Judd standard and that “even though the Griffith rule
of retroactivity has much to recommend it,” this court does not need to rule on whether
to adopt it.63 It is correct that Judd would appear to allow retroactive application of
Doe I: Holding the application of ASORA unconstitutional to persons in Charles’s
circumstances relates to the fairness of the prosecution. Retroactively applying that
factor to cases on direct review would therefore fairly extend our current notion that rules
that ensure a fair trial or relate to the integrity of the verdict should be given retroactive

61
See, e.g., State v. Smart, 202 P.3d 1130, 1136 (Alaska 2009) (explaining
Alaska may follow state retroactivity principles for applying new federal rule to a case
on collateral review “so long as the state test is at least as comprehensive as the federal
test”); Deemer v. State, 244 P.3d 69, 71 (Alaska App. 2010) (applying Griffith to
determine retroactivity of new federal rule to a case on direct review).
62
Charles v. State, 287 P.3d 779, 789 (Alaska App. 2012).
63
Id.

-15- 6897

effect.64 Nonetheless, it is our task to make the necessary policy decisions and value
judgments in discerning retroactivity standards.65 We perceive no plausible reason for
delaying to another day the question of whether to adopt Griffith. Both Charles and the
State have persuasively recited the reasons for adopting Griffith. And the Supreme
Court’s reasons for limiting and ultimately abandoning Linkletter are convincing. We
therefore conclude that litigants on direct review should receive the benefit of Griffith’s
clear and fair retroactivity standard.66
We now turn to applying to Charles’s case the retroactivity standard we
adopt today — that all new constitutional rules apply to similar cases that are pending
on direct review or not yet final.67 We announced our holding in Doe I68 while Charles
could file a timely petition for hearing, and he ultimately filed his petition raising the ex

64
See Farleigh, 728 P.2d at 640; Rutherford v. State, 486 P.2d 946, 952
(Alaska 1971).
65
See Judd, 482 P.2d at 278 (explaining that retroactivity standards involve
a “value judgment” and that this court must make the “necessary policy decisions”).
66
We express no opinion about whether Judd should still apply to cases on
collateral review, that is, to cases that are final or not on direct review. Although the
United States Supreme Court has abandoned the Linkletter criteria for cases on collateral
review, it did so in favor of a general rule of non-retroactivity and in light of different
considerations than those at issue in Griffith. See Teague v. Lane, 489 U.S. 288, 305-06
(1989) (emphasizing the nature and function of collateral review). Charles’s case
presents no collateral review question, and in light of the different considerations at
issue, today’s holding has no impact on Judd’s application to cases on collateral review.
67
See Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
68
Doe v. State, 189 P.3d 999, 1019 (Alaska 2008) (holding that ASORA
violates the ex post facto clause as applied to those who committed their underlying sex
offense before ASORA’s enactment).

-16- 6897

post facto issue within the time required for filing his petition.69 Because his case was
therefore on direct review, he retroactively receives the benefit of Doe I. The issue
remains, however, whether Charles waived or forfeited his Doe I argument by failing to
raise the issue at trial or on direct appeal to the court of appeals.
B. Charles Did Not Waive His Ex Post Facto Challenge.
On remand, we asked the court of appeals to consider whether an ex post
facto challenge is waivable and whether Charles had waived his challenge.70 The court
of appeals noted that nothing in the record suggests Charles knowingly decided not to
pursue an ex post facto challenge at trial.71 The court of appeals therefore explained that
the specific issue is whether ex post facto challenges may be unintentionally forfeited.72
It noted that “[s]everal federal and state courts have ruled that [ex post facto] protections
can be forfeited by failing to assert them,”73 meaning the party must then demonstrate
plain error.74 In comparison, the Texas Court of Criminal Appeals has ruled that because
ex post facto challenges attack the legislature’s authority to criminalize conduct,

69
Charles filed timely motions to extend the time in which to file his petition
for hearing. This court granted those motions. State v. Charles, No. S-12944 (Alaska,
filed Dec. 13, 2007).
70
Alaska Supreme Court Order, File No. S-12944 (Jan. 7, 2009).
71
Charles v. State, 287 P.3d 779, 781 (Alaska App. 2012).
72
Id.
73
Id. at 782 (citing United States v. Diaz–Diaz, 327 F.3d 410, 412 (5th Cir.
2003); State v. Simnick, 779 N.W.2d 335, 339 (Neb. 2010); State v. LaFreniere, 180
P.3d 1161, 1163-64 (Mont. 2008); Mayers v. State, 42 So. 3d 33, 44 (Miss. App. 2010);
Williams v. State, 507 So. 2d 1171, 1171 (Fla. App. 1987)).
74
Id.

-17- 6897

“defendants should not be permitted to waive the protections of the ex post facto clause
‘any more than they may consent to be imprisoned for conduct which is not a crime.’ ”75
Charles argues that we should follow Texas and hold that his ex post facto
challenge — an attack on the constitutionality of ASORA — is jurisdictional in
character, and can thus be raised at any time.
Because there is no indication that Charles intentionally waived an ex post
facto challenge, we do not need to consider whether the court of appeals was correct in
stating that a criminal defendant may intentionally waive an ex post facto challenge.76
And because Charles did not raise his ex post facto challenge before the
district court or the court of appeals, we would ordinarily review the challenge only for
plain error.77 As the court of appeals noted, “[a] claim of plain error typically includes
an assertion that the lower court overlooked, or failed to remedy, an error that would
have been obvious to any competent judge.”78 But that explanation of plain error does
not adequately explain how to deal with a party’s post-trial attempt to invoke a new
constitutional rule that had not yet been announced when the case was tried and that was
therefore not available to the trial court. Any error in failing to conclude that ASORA
violated the ex post facto clause could not fairly be called obvious to any judge of a court
in which the issue might have been raised: We had not yet issued our ruling in Doe I
when Charles’s failure-to-register case was tried and appealed to the court of appeals.

75
Id. (quoting Ieppert v. State, 908 S.W.2d 217, 220 (Tex. Crim. App. 1995)).
76
Id. at 781 (explaining that it may, in some circumstances, be advisable for
a defendant to waive ex post facto rights; for example, a defendant may wish to forgo an
ex post facto defense to a misdemeanor failure to register charge in exchange for a
promise not to pursue a felony perjury charge).
77
Id. at 782-83.
78
Id. at 782 (citing Adams v. State, 261 P.3d 758, 773 (Alaska 2011)).

-18- 6897

 The court of appeals proposed this special, “retrospective” plain error rule
when a new constitutional rule is announced: “The question is whether, in light of the
new constitutional rule, we can now see that there was an obvious flaw in the lower court
proceedings, and that failure to correct this flaw would perpetuate manifest injustice.”79
But we think this formulation, although helpful, adds avoidable complexity to the
ultimate inquiry.
We therefore turn to the core of our plain error analysis. In Adams v. State,
we stated: “We have described plain error as involv[ing] such egregious conduct as to
undermine the fundamental fairness of the trial and contribute to a miscarriage of
justice.”80 We agree with that description. Therefore, in deciding whether it was plain
error not to apply a not-yet-announced constitutional rule, instead of focusing on whether
the error was hypothetically obvious, we ask whether the error was “so prejudicial to the
fairness of the proceedings that . . . failure to correct it would perpetuate manifest
injustice.”81
The court of appeals concluded that because Doe I ruled that ASORA
“violates Alaska’s ex post facto clause,”82 and because it is undisputed that Charles
committed his sex offense prior to ASORA’s enactment, “Charles stands convicted of

79
Charles, 287 P.3d at 783 (emphasis in original).
80
Adams, 261 P.3d at 764 (alteration in original) (quoting Raphael v. State,
994 P.2d 1004, 1015 (Alaska 2000)) (internal quotation marks omitted).
81
Charles, 287 P.3d at 783 (omission in original) (quoting Adams, 261 P.3d
at 764).
82
Doe v. State, 189 P.3d 999, 1019 (Alaska 2008).

-19- 6897

violating a criminal statute which, under our state constitution, can not apply to him.”83
We agree with that conclusion. We also conclude that permitting Charles to be convicted
of violating a criminal statute that cannot constitutionally be applied to him would result
in manifest injustice. Charles may therefore rely on Doe I even though he failed to raise
an ex post facto challenge at trial.84 His conviction must be set aside.
C. We Decline To Allow Additional Briefing Before Granting Relief.
The State’s initial opposition to Charles’s petition for hearing argued that
we should deny the petition, because, even though Doe I applied to the class of sex
offenders that included Charles, it was not unconstitutional to charge him with failing to
comply with ASORA before we issued our Doe I decision in 2008.
When we ordered supplemental briefing after the court of appeals issued
its per curiam opinion on remand, Charles’s supplemental brief argued that any
conviction based on a registration duty that could not be constitutionally applied to
Charles was invalid. It asked us to vacate Charles’s conviction of failing to register.
In response, the State’s supplemental brief argued that we should not
reverse Charles’s conviction without full briefing on the merits. It also argued —
summarizing two arguments it had made in its then-pending appeal in State v. Doe85 —
that Doe I had been wrongly decided and was not binding precedent. The State’s
supplemental brief acknowledged that under Doe I, “prospective enforcement of a
sentence stemming from such a failure-to-register conviction must cease.” But it argued

83
Charles, 287 P.3d at 790.
84
Id.
85
State v. Doe (Doe A), 297 P.3d 885 (Alaska 2013).

-20­ 6897
— summarizing arguments it had made in State v. Stickman,86 an appeal then pending
in the court of appeals — that offenders should not have their convictions declared void
ab initio or expunged. The State’s supplemental brief concluded that we “should decline
to summarily reverse and vacate Charles’[s] conviction until this court decides [Doe
A], . . . and, if necessary, Alaska’s appellate courts resolve the state’s additional
arguments in State v. Stickman.”
Thus, the State’s supplemental brief in this case gave two reasons for asking
us to delay ruling: First, that Doe I was wrongly decided and was not binding precedent.
Second, that the State’s arguments in State v. Stickman should be resolved. Neither
reason persuades us that we should call for additional briefing before ruling on Charles’s
request that we order that his conviction be vacated.
We issued our decision in Doe A on March 13, 2013, and modified it when
we denied rehearing on April 10, 2013. Our Doe A decision expressly held that Doe I
was correctly decided and is binding precedent.87 We have thus considered, and rejected,
the two Doe A-related arguments the State’s supplemental brief asked us to consider
before granting relief to Charles.
The State’s appeal in Stickman elaborated on the same arguments the State
raised when it first opposed Charles’s petition for hearing. In Stickman, the State
appealed an order granting post-conviction relief to Donald Stickman after he was
convicted of failure to register for a sex offense that pre-dated ASORA. The State’s
briefs contended there that Stickman had an enforceable duty to comply with ASORA
until that statute was declared ex post facto. In support of that contention, the State cited

86
No. A-10441 (Alaska App., filed Mar. 19, 2009).
87
Doe A, 297 P.3d at 886.

-21­ 6897
Jacko v. State88 and Clark v. State.89 In Jacko the court of appeals rejected George
Jacko’s argument that a charge for violating a restraining order should be dismissed
because the order was factually unjustified.90 The court of appeals reasoned in Jacko that
a person must obey a restraining order until it is vacated through proper procedures.91
It explained that it would encourage disobedience and violence to rule that “a person may
flout a court order with impunity if it later turns out that the order was illegal.”92 In
Clark, the court of appeals affirmed a felon-in-possession-of-a-firearm conviction even
though the underlying felony conviction was later reversed.93
Responding to the State’s appeal, Stickman asserted that Doe I abrogated
the legislature’s authority to require Stickman to register, making any conviction based
on failure to register void. Stickman distinguished Jacko and Clark, arguing that court
rulings had invalidated the predicate factual circumstances for the restraining order in
Jacko and the prohibition on firearm possession in Clark. In comparison, Stickman
argued that Doe I’s ex post facto holding instead pertained to the constitutionality of the
very duty to register. Stickman argued that applying Jacko and Clark to an ex post facto
challenge and ruling that a person could be convicted of failing to comply with an
unconstitutional statute would undermine a defendant’s ability to raise constitutional
challenges to the statute under which he or she was convicted.

88
981 P.2d 1075 (Alaska App. 1999).
89
739 P.2d 777 (Alaska App. 1987).
90
Jacko, 981 P.2d at 1077-78.
91
Id. at 1077.
92
Id. at 1078.
93
Clark, 739 P.2d at 781.

-22- 6897

 The State did not file a reply to Stickman’s appellee’s brief; instead, after
obtaining two extensions in which to file a reply, it moved to dismiss its appeal. The
court of appeals granted the State’s motion to dismiss on May 23, 2013.94
Having reviewed the briefs filed by the State and Stickman in File No. A­
10441, we are unpersuaded that it would be beneficial to give the State any additional
opportunity to argue now that Charles could be charged with violating a statute which
we later held could not be constitutionally applied to persons like Charles. First, the
State already had an opportunity, which it exercised, to argue that issue when it first
opposed Charles’s petition for hearing. Second, the State’s briefing on that issue in
Stickman is not so compelling that we think further briefing might change the outcome
of Charles’s petition. Third, the State voluntarily dismissed its appeal in Stickman,
waiving its opportunity to present the merits of that argument to the court of appeals. It
thus waived an opportunity to have, in the words of the State’s supplemental brief, an
Alaska appellate court “resolve the state’s additional arguments in [Stickman].” We do
not decide here whether Jacko and Clark or the analysis underlying those decisions could
be the basis for upholding a person’s conviction for failing to comply with a criminal
statute later declared to be unenforceable against that person for ex post facto reasons.

94
Alaska Court of Appeals Order, File No. A-10441 (May 23, 2013).
In a notice the State filed on May 13, 2013 in the case now before us, the
State candidly addressed the status of Doe A and Stickman. The notice stated that the
State’s supplemental brief had asked us to decline to resolve Charles’s petition “until two
related cases had resolved,” and informed us that “[t]hey have both since resolved.” It
noted that Doe A, File No. S-14486, was fully resolved April 10, 2013, and that the State
had moved to dismiss its appeal in State v. Stickman, File No. A-10441, “late last week.”

-23- 6897

We merely decide that, given the procedural circumstances in this case and in Stickman,
there is no reason to allow additional briefing before we decide Charles’s petition.95
V. CONCLUSION
For these reasons we GRANT Charles’s petition for hearing, REVERSE
the 2007 decision of the court of appeals that affirmed Charles’s judgment, and
REVERSE Charles’s 2006 judgment of conviction.

95
Our appellate rules allow us to grant a petition for hearing and rule on the
merits without first ordering full briefing. Alaska Appellate Rule 305(a) provides that
a case shall be fully briefed when hearing is granted “[u]nless the order granting a
hearing specifies otherwise.”

-24- 6897