concurring.
I write separately to address the apparent conflict between the Alaska Supreme Court's decision in Loola v. State, 608 P.2d 36, 37 (Alaska 1980), and the series of decisions issued by this Court dealing with the same issue of double jeopardy law, beginning with Allain v. State, 810 P.2d 1019, 1021-22 (Alaska App.1991).
The problem addressed in and Allain arises when a trial court mistakenly enters judgement against a defendant for more separate offenses than the law allows. Under the double jeopardy doctrine announced in Whitton v. State,1 there will be times when two or more guilty verdiets must merge into a single criminal conviction (and a single sentence). Sometimes, the sentencing judge will recognize the Whitton problem and will effect the merger before the final judgement is issued. But if the double jeopardy problem is not perceived, or is not correctly resolved, until the case is on appeal, the appellate court will have to direct the sentencing court to amend the judgement and to re-sentence the defendant.
In such instances, is the sentencing court permitted to alter the defendant's sentences on the remaining offenses so as to maintain the defendant's original composite term of imprisonment? Or does the double jeopardy clause prohibit the sentencing court from changing the defendant's sentences on the remaining counts?
In Allain, 810 P.2d at 1021-22, this Court examined this issue at some length and ultimately concluded that the double jeopardy clause allows a sentencing court to alter the defendant's sentences on the remaining counts, so long as the defendant's new sentences do not exeeed the composite term that the defendant originally received.
The defendant in Allain received two separate convictions and sentences for sexual abuse of a minor, with each conviction based on the same episode of sexual contact.2 On the first of these counts, the superior court sentenced Allain to 3 years' imprisonment with 2 years suspended. On the second count, the superior court sentenced Allain to a consecutive term of 3 years, with all 3 years suspended. In other words, Allain received a composite sentence of 6 years with 5 years suspended-1 year to serve.3
On appeal, Allain contended that it was improper for the superior court to enter separate judgments on these two counts-that the jury's verdicts would support only one conviction and one sentence. The State conceded error.4 This Court then had to decide what remedy was appropriate for this legal error.
The State argued that, even though the judgement would have to be amended to reflect only one conviction and sentence, "the sentencing [judge] should be authorized to impose a new sentence that does not exceed the composite term of six years with five years suspended originally imposed as to Counts I and II" 5 Allain took the position that any increase in his sentence on the single count would be barred by the double *1152jeopardy clause and by the due process clause.6
After considering this issue, this Court concluded that "the state's position [is] meritorious and Allain's constitutional claims [are] unpersuasive".
As a matter of federal constitutional law, it appears clear that resentencing on [the remaining count] is barred neither by double jeopardy nor by the due process prohibition against vindictiveness. See, e.g., Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985); United States v. Pimiento-Redondo, 874 F.2d 9 (1st Cir.1989) (en banc ).
Allain, 810 P.2d at 1021.
This Court recognized that it was "conceivable that the more stringent protections of Alaska's double jeopardy and due process clauses might afford Allain shelter against resentencing in some circumstances, even though resentencing would not be barred by the United States Constitution." But under the circumstances of Allain's case, we concluded that the Alaska Constitution did not bar an increase in Allain's remaining sentence. We explained that factors [were] pivotal to our decision":
First, the dismissal of Count I in this case results from its merger with Count II and does not in any way implicate the legitimacy of the jury's factual determination that Allain was guilty of the conduct originally charged in Count I. Given the merger of Counts I and II, Count II now comprehends the totality of the conduct for which Allain was originally sentenced. Because the merger of Counts I and II was precisely the relief that Allain sought in bringing this appeal, he cannot be heard to complain that double jeopardy precludes the imposition of a new sentence that takes into account the expanded scope of the conduct now included in that count.
Allain, 810 P.2d at 1021-22.
Second, [Allain's sentencing judge] made it abundantly clear at the original sentencing hearing that he viewed Allain's convictions as essentially a single episode of criminal misconduct and that, while he elected to use consecutive sentences, his aim was to fashion a composite term appropriate for the totality of Allain's conduct. Given [the judge's] remarks, it is apparent that the judge's selection of a partially suspended term on Count I and a completely suspended term on Count II was wholly fortuitous. It is further evident that [the judge] deemed the total term of six years with five years suspended to be appropriate as a total sentence, regardless of whether that sentence was implemented by means of consecutive or concurrent sentences.
Allain, 810 P.2d at 1022.
For these reasons, we concluded that the superior court was authorized to re-sentence Allain to a modified term of imprisonment on the remaining count, so long as that new sentence did not exceed the composite sentence originally imposed.7
Since that time, we have repeatedly applied our holding in Allain to other cases where a defendant had to be re-sentenced owing to the merger or dismissal of one or more of the original counts. See, e.g., Marker v. State, 829 P.2d 1191, 1195-97 (Alaska App.1992); Ward v. State, 120 P.3d 204, 208-09 (Alaska App.2005); Moore v. State, 123 P.3d 1081, 1093-94 (Alaska App.2005); Walsh v. State, 134 P.3d 366, 372-73 (Alaska App.2006); and Billum v. State, 151 P.3d 507, 509-510 (Alaska App.2006).
But there is a problem with Allain and our ensuing decisions on this issue. The problem is that, in Loola v. State, 608 P.2d at 37, the Alaska Supreme Court reached the opposite decision: that is, the supreme court held that the double jeopardy clauses of both the federal and state constitutions forbid any increase in a defendant's remaining sentences after one or more of the original counts are vacated on Whitton grounds.
The defendant in Loolo was convicted of two crimes under Alaska's former criminal code-assault with a dangerous weapon and aggravated assault-based on a single as-saultive act.*11538 For the first of these offenses, Loola received 10 years' imprisonment with 5 years suspended. For the second offense, Loola received another 5 years' imprisonment, to be served consecutively.9 In other words, Loola received a composite term of 10 years to serve and an additional 5 years suspended.
Loola filed a sentence appeal, but he only appealed his second sentence. Loola's opening brief was slightly over two pages long, and it was almost entirely devoted to explaining the facts of his case and then arguing that his two offenses merged under Whitton. In the concluding paragraph of that brief, rather than asking for a remedy consistent with Whitton-i.e., merger of these two offenses into one conviction and sentence-Loola merely asked the supreme court to alter the judgement so that his two sentences would be served concurrently. See Alaska Supreme Court File No. 4858, Loola v. State, Opening Brief of the Appellant.
The State filed a two-paragraph brief in response. In the first paragraph, the State conceded error on the Whitton issue. In the second paragraph, the State asked the supreme court to allow the superior court to alter Loola's sentence on the remaining count, so that the superior court's sentencing intention (10 years to serve) could be carried out. See Alaska Supreme Court File No. 4858, Loola v. State, Brief of the Appellee.
Loola then filed a one-page reply brief in which he asserted that such an alteration of his remaining sentence would violate the double jeopardy clauses of the federal and state constitutions. Loola cited no authority in support of this constitutional argument. See Alaska Supreme Court File No. 4858, Loola v. State, Reply Brief of the Appellant.
Despite the fact that this constitutional issue was raised for the first time in a reply brief-in other words, despite the fact that there was no adversarial briefing of this issue-and despite the fact that Loola provided no case law or other authority to support his assertion that it would be unconstitutional to increase his remaining sentence, the Alaska Supreme Court concluded that the double jeopardy clauses of the federal and state constitutions prohibited the superior court from increasing Loola's remaining sentence. Loola, 608 P.2d at 37. The court declared that this conclusion was dictated by the fact that Loola had not appealed both of his sentences, but rather only the second one. Id. Based on this, the court held that any increase in the un-appealed sentence would be unconstitutional.
To the extent that the decision in Loolg rests on the federal double jeopardy clause, it was wrongly decided. As this Court noted in Allain, the United States Supreme Court addressed a similar situation in Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985), and concluded that the federal double jeopardy clause does mot prohibit an increase in the defendant's remaining sentences.
The defendant in Goldhammer was con-viected of 56 counts of forgery and an accompanying 56 counts of theft. The sentencing court imposed a sentence of 2 to 5 years' imprisonment on one of the theft counts, and imposed 5 years of probation on one of the forgery counts. The court then suspended Goldhammer's sentence on the remaining 110 counts.10 On appeal, the appellate division of the Pennsylvania superior court held that 34 of the theft counts-including the one on which Goldhammer was actually sentenced-were barred by the statute of limitations. The Pennsylvania Supreme Court later affirmed the dismissal of the 34 theft counts, and further held that the federal double jeopardy clause did not permit the trial court to alter any of the suspended sentences that Goldhammer received for the other 22 theft counts.11
In response to the State of Pennsylvania's petition for writ of certiorari, the United States Supreme Court summarily reversed the Pennsylvania Supreme Court's double jeopardy ruling and remanded the case to the Pennsylvania courts for a determination *1154of whether, under state law, the government was allowed to seek an increase in Gold-hammer's sentence on the remaining counts.12
This leaves the question of whether Alaska law allows or forbids the increase of a defendant's remaining sentences in this situation.
Leaving aside the fact that the constitutional ruling in Loola was issued without the benefit of adversarial briefing, it appears that the decision in Loolo is flawed in two respects. First, it is inconsistent with the Alaska Supreme Court's Whitton jurisprudence. Second, it is inconsistent with Alaska law governing sentence appeals when a defendant has been sentenced for two or more offenses.
As this Court explained in Erickson v. State, 950 P.2d 580 (Alaska App.1997), when a defendant attacks a conviction and sentence on Whitton grounds, the appeal is not a "sentence" appeal in the technical sense. In a sentence appeal, the defendant concedes the lawfulness of the sentence, but attacks its severity.13 In contrast, a defendant who raises a Whitton challenge is attacking the lawfulness of both the conviction and the sentence: the defendant is arguing that, as a constitutional matter, it was improper to enter a separate conviction (much less impose a separate sentence) for the challenged offense.
Moreover, when a defendant has received two separate convictions in violation of Whit-ton, the proper remedy is not dismissal of one count in preference to the other. Rather, as we explained in Kailukiak v. State, 959 P.2d 771, 774 n. 1 (Alaska App.1998), and again in Hurd v. State, 107 P.3d 314, 322 (Alaska App.2005), the proper remedy is a merger of the two counts into a single convietion and sentence based on both verdicts:
[T]t is technically incorrect for a sentencing court to "dismiss" a count on Whitton grounds. Even though the Alaska double jeopardy clause, as construed in Whitton, prevents a sentencing court from entering separate convictions and sentences on two counts that constitute the "same offense", a Whitton ruling does not impugn the validity of the jury's underlying verdicts. That is, a Whitton ruling that two counts are duplicative casts no doubt on the validity of the jury's fact-finding or its conclusion that the defendant is guilty of the conduct alleged in both counts. For this reason, even though this Court has occasionally spoken of "dismissal" of the dupli-cative count, we have most often (and most correctly) described the proper course of action as a "merger" of the two counts into a single conviction-i.e., the entry of one conviction and sentence premised on both jury verdicts.
Hurd, 107 P.3d at 322 (footnotes omitted).
In other words, a Whitton challenge necessarily involves both of the related convictions and sentences. And even if the challenge is well-founded, the defendant is not entitled to demand that the court ignore one of the verdiets. Rather, the defendant is entitled to demand a single conviction and sentence based on both of the verdicts.
It is true that, in Whitton, the supreme court referred to a Whitton ruling as a type of sentencing decision, and the court suggested that the remedy for an improper Whitton ruling was a sentence appeal. See Whitton, 479 P.2d at 313-14.
But as we explained in Erickson, both the Whitton decision itself and the supreme court's subsequent decisions on this issue clearly demonstrate that Whitton rulings are not exercises of sentencing discretion; rather, they are rulings of law. As a consequence, both the State and the defendant are entitled to seek review and reversal (not just disapproval) of an erroneous Whitton ruling. See Erickson, 950 P.2d at 585-87. In particular, see State v. Occhipinti, 562 P.2d 348, 349-351 (Alaska 1977), where the supreme court held that the State is entitled to seek a writ of mandamus, and a re-sentencing, when the superior court mistakenly rules that a defendant's convictions must merge under Whitton.
*1155Leaving aside the legal basis and status of Whitton appeals, both the Alaska Supreme Court and this Court have repeatedly held that a defendant who is sentenced for two or more offenses is not allowed to bring a sentence appeal that attacks only a single sentence, or isolated sentences, from among the entirety of the sentence imposed. As we explained (most recently) in Custer v. State,
When a defendant pursues a sentence appeal after the sentencing court has imposed a composite sentence for two or more criminal convictions, this Court assesses whether the defendant's combined sentence is clearly mistaken, given the whole of the defendant's conduct and history. [Brown v. State, 12 P.3d 201, 210 (Alaska App.2000); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App.1987).] Because the question is whether the combined sentence is justified in light of the entirety of the defendant's conduct and history, the law does not require that a specific sentence imposed for a particular count or offense be individually justifiable as if that one crime were considered in isolation. [Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Jones v. State, 765 P.2d 107, 109 (Alaska App.1988); Comegys, 747 P.2d at 558-59.]
For these reasons, an appellate court will not hear a defendant's challenge to a composite sentence unless the defendant has appealed each of the sentences that contributes to the composite total-so that the court can meaningfully evaluate the whole. See Preston v. State, 583 P.2d 787, 788 (Alaska 1978).
Custer, 88 P.3d 545, 549 (Alaska App.2004) (footnotes replaced by bracketed text).
The Alaska Supreme Court's decision in Loola is premised on two assumptions that are inconsistent with this case law (even though some of this case law predates the Loola decision). First, the supreme court's decision rests on the idea that a Whitton appeal is a "sentence appeal" (in the limited, technical sense of that term-4i.e., an appellate challenge to the severity of a concededly lawful sentence). Second, the supreme court's decision rests on the idea that defendants who receive multiple sentences are entitled to appeal only one of their sentences, if that is what they wish to do. Both of these premises are incorrect.
It therefore appears to me that Loola was decided without adequate consideration of the legal issues involved and the governing law. The decision in Allain (which was issued before I joined the Court of Appeals) appears to be better reasoned and more consistent with the Alaska case law I have discussed here. However, if there is a conflict between a decision of the Alaska Supreme Court and a decision of this Court, the supreme court's decision governs.
The present case is different enough from Loola that we need not directly confront and resolve the discrepancy between Loola and Allain. But because the situation posed in Loola and Allain (re-sentencing as a result of a Whitton ruling) occurs with some frequency, I believe that judges and criminal law practitioners should be alerted to this problem.
. 479 P.2d 302 (Alaska 1970).
. 810 P.2d at 1021.
. Id.
. Id.
. Id.
. Id.
. Id. at 1022.
. Loola, 608 P.2d at 37.
. Id.
. Id., 474 U.S. at 29, 106 S.Ct. at 353.
. 1d.
. Id., 474 U.S. at 29-31, 106 S.Ct. at 353-54.
. Rozkydal v. State, 938 P.2d 1091, 1093-94 (Alaska App.1997).