### IN THE SUPREME COURT OF IOWA

No. 19

– 0109 Submitted September 17, 2020

— F iled October 16 , 20 20

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 conviction s for possession of marijuana merged w ith conviction s 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.2

Thomas J. Miller, Attorney General, Ti mothy M. Hau, Assistant Attorney General, Brian J. Williams, County Attorney, and Jeremy L. Westendorf, Assistant County Atto rney , 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 conviction s merged with the eluding charge s
. The State concedes that under the legal

- e lements test, it is impossible to commit felony eluding with marijua na without possessing it

. The State argues the statuto ry scheme nevertheless demonstrates the legislat ure inte nded cumulative punishments for these offenses

. Following transfer, t he 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 appli ed 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. T he 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 c hases. O n May 24, 2017,
Waterloo Police Officer Tyler Brownell saw Irvin Johnson Jr. driving on Franklin Street

. Officer Brownell recognized the vehicle and knew that4

Johnson ’s driver’s license remained barred due to his status as a habitual
offender.
Officer Brownell turned on his emergency lights t o 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 exceed ing fifty

- five miles per hour in a twenty

- five

mile

- per

- hour zone. The auto chase ended after J ohnson made a hard
turn into a driveway, sideswiped a parked vehicle, and fle d on foot, jumping a tall fence while ignoring Officer Brownell ’s shouts to stop. Another officer found Johnson in an alley and arrest ed 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 bo ttle 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 o n February 16, 2018

. Waterloo Police
O fficer Andrew Tindal l was driving a marked squad car and noticed Johnson driving a gray Nissan SUV. Officer Tindall knew Johnson ’s
dri ver’s license remained barred

. Officer Tindall drove behind Johnson and activated his emergency lights. Johnson rapidly accelerat ed , and
Officer Tindall activated his sirens and pursued

. During this chase , Johnson dro ve 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

.5
For each incident, t he 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 possessi ng mariju ana and possession of marijuana, and the distr ict 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 appea led , contending the marijuana possession
conviction s must merge with the eluding conviction s . W e 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 “ the se offenses must

m erge ” 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 f ailure to merge convictions as required by
statute for correctio n 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
constitut ional 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
conviction s for pos session of marijuana in violation of Iowa Code section6

124.401(5) merge with his felony conviction s for eluding while possessing marijuana in violation of section 321. 279(3)( b )

. We b egin 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 d ouble 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 offenc e ,’ not for the same conduct or actions ’ ” (quoting Grady v. Corbin , 495 U.S. 50 8, 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 punishment s , our first step is to apply the legal

- elements test that
compar es “the elements of the two offenses to determine whether it is

1 The Double Jeopardy Clause of the United States Constitution provides: “[N]or shall any person be subject for the same offence to be twice pu t 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. ar t. I, § 12. Johnson does not request a different analysis under the Iowa Constitution.7

possible to commit the greater offense without also committing the lesser
offense.” Id. T he State char ged 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 follow ing 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 t he 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 inte nded multiple punishments for both offenses.” Halliburton , 539 N.W.2d at 344

. In 2003, on this basis, the court of appeals found that8

convictions for felony eluding while possessing marijuana , operating while intoxicated, and posses sion 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 A cts 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. T he
State nevertheless argues that other penalties unique to convictions under section 124.401(5) demonstrate the legislature provided for cumulati ve punishments for these offenses

. We agree with the State. Most importantly, merger would eliminate the subsequent

- offense
enhancement s 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 re peated possession convictions are intended to “ deter and punish incorrigible
offenders.” 705 N.W.2d 286, 28 8 (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

2 Iowa Code s ection s 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, on e year in jail and a fine of $1 875; and for a third offense, two year s imprisonment and a fine of $6 250. Iowa Cod e s ection 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.9

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

se ntencing enhancements for recidivists convicted of marijuana possession by merging th at 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 mo nths 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

c ould create a perverse incentive to flee the police.
We find further indications t he 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 op tions to deny federal and state benefits. Iowa Code § § 901.5 (1 1 )

– (12 ); 911.2 ; 911.3

. 3 A n other 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 124.40 4 , 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

3 With 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)).10

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 sa nction otherwis e 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
p hrase 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 aggravat e another.” The Georgia Court of Appeals interpret ed 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

c ourt 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 ak in to a savings statute or anti merger provision that preserves the unique enhancements and other penalties of
the subchapter notwithstanding any sanctions imposed by other laws

.

4 Iowa Code s ection 124.404 i s part of the Uniform Controlled Substances Act adopted by the Iowa l egislature. Compare Iowa Code § 124.404 with Unif. Controlled Substan ces Act § 404 , 9 U.L.A. 5 , at 890 (1970). The same provision is found in the Federal Controlled Substances Act. Controlle d 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).

5 The 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)

.11

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 34 5

. E luding and an OWI , for example, “were designed for the protection of the public” but were “meant to protect against a diff erent form of illegal conduct.” Rice , 661 N.W.2d at
551

. T he Eckrich court in declining to merge eluding, possession, and operating while intoxicated offe nses, 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 drivin g. Eluding also penalize s defiance of the law and d eters 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.2 d 51 0, 51 3 (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.