Judge ALLARD.

NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3KN-08-56 CR

MEMORANDUM OPINION

Appeal from the Superior Court, Third Judicial District, Kenai, Carl Bauman, Judge. Appearances: Whitney G. Glover, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.

The State charged Eric McDonald with multiple felony offenses after he sold drugs to a confidential police informant. During the pretrial proceedings, McDonald became dissatisfied with his court-appointed attorney from the Alaska Public Defender Agency and requested that the superior court appoint different counsel. When the superior court denied this request, McDonald elected to proceed pro se at trial. The jury subsequently convicted McDonald of nine drug- and weapons-related offenses.

Prior to sentencing, McDonald filed a motion for a new trial, asserting that he was deprived of his right to conflict-free counsel during the pretrial proceedings because the Alaska Public Defender Agency was laboring under various conflicts of interest when it represented him. McDonald also argued that these alleged conflicts made his waiver of counsel invalid. The court denied the motion for a new trial.

McDonald now appeals, arguing that the superior court applied the wrong legal standard when it denied his new trial motion. For the reasons explained here, we conclude that the superior court applied the correct legal standard and that the court did not err in denying McDonald's motion for a new trial.

McDonald also challenges several of the superior court's evidentiary rulings. He argues that the prosecutor should not have been allowed to introduce evidence that McDonald sold drugs on other occasions and should not have been permitted to question McDonald about his recent arrest for possession of Oxycontin. We conclude that neither of these claims has merit.

McDonald also argues that the court committed plain error by failing to instruct the jury that it could convict him of the charged weapons offenses only if it found a nexus between his firearm possession and his commission of a felony drug offense. We conclude that any error in the court's failure to give a nexus instruction was cured by the parties' closing arguments.

Lastly, McDonald challenges his sentence, arguing that the superior court erred in failing to merge his convictions on certain counts. We agree that Count IV (keeping or maintaining a dwelling used for distributing or keeping controlled substances) and Count VI (possession of alprazolam with intent to distribute) should merge under our decision in Rofkar v. State. We therefore direct the superior court to merge these two counts and resentence McDonald accordingly.

We also conclude that the court erred by enhancing McDonald's sentence on Count III (possession of hydrocodone with intent to distribute) based on his possession of a firearm during the commission of that offense given McDonald's separate conviction for possession of a firearm during the commission of this same felony drug offense. We accordingly direct the superior court to resentence McDonald on Count III using the non-enhanced presumptive range of 5 to 8 years.

We otherwise affirm McDonald's convictions and sentence.

Background facts and prior proceedings

a) The troopers' undercover investigation of McDonald

In 2007, the Alaska State Troopers were engaged in an undercover drug operation in Kenai involving a confidential informant, Michael Hooper. In exchange for leniency in his own drug case, Hooper agreed to assist the Troopers in investigating and prosecuting various individuals suspected of selling drugs.

In accordance with this agreement, Hooper made a controlled buy of cocaine from Jack Horsley and Raymond Weigle in September 2007, and another controlled buy of cocaine from Weigle in October 2007. When Hooper was unable to fulfill his other obligations under the agreement, he offered Eric McDonald as an alternate target. The troopers then arranged for Hooper to conduct two controlled buys from McDonald. Both buys took place inside the trailer where McDonald was living.

The first buy occurred in early December and involved Hooper's purchase of two 80-milligram Oxycontin (oxycodone) pills from McDonald. The second buy occurred later that month and involved Hooper's purchase of two "nuggets" (solid pieces) of heroin from McDonald. The second buy was recorded, and the recording was played for the jury. In the recording, a man named "Jack" (identified at trial as McDonald's younger brother) took Hooper's money. A second man (identified at trial as McDonald) gave Hooper the drugs.

On January 10, 2008, the troopers obtained and executed a search warrant on McDonald's trailer. McDonald was the only occupant of the trailer. The door to the trailer was fortified with blocks of wood, and the trailer was protected by an elaborate security system. Inside the trailer, the troopers found loaded shotguns and a handgun in the living room that appeared poised for defensive use. During their search, the troopers found additional firearms, multiple controlled substances (including methamphetamine, oxycodone, hydrocodone, and alprazolam), drug paraphernalia, and more than $17,000 in cash.

Based on the guns and drugs found inside the trailer, and the prior evidence of the two drug sales to Hooper, the State arrested McDonald and charged him with twelve drug- and firearm-related felony offenses. At McDonald's arraignment, the Public Defender Agency was appointed to represent him.

On the same day that the troopers executed the search warrant on McDonald's trailer and arrested McDonald, the troopers also executed a search warrant on Raymond Weigle and Jack Horsley, the other targets of the undercover investigation involving Hooper. Weigle and Horsley were arrested that same day and jointly charged with various drug offenses. At their arraignment, the Public Defender Agency was appointed to represent Horsley and conflict counsel was appointed to represent Weigle.

b) McDonald's waiver of counsel

Early in his case, McDonald became unhappy with his assigned assistant public defender, Angie O'Brien. He hired a private attorney, but he soon fired that attorney because he was dissatisfied with that attorney as well. The Public Defender Agency was re-appointed to represent McDonald, and O'Brien was again assigned to his case.

McDonald subsequently requested a representation hearing, asserting that there had been an "absolute breakdown in communication" between him and O'Brien. McDonald asked the superior court to order the Public Defender Agency to give him a different public defender, or, in the alternative, to appoint conflict counsel through the Office of Public Advocacy.

At the representation hearing, O'Brien informed the court that the Agency had a strict policy against reassigning attorneys at the client's request. She also stated that the Agency was unaware of any conflict of interest that would justify the Agency's withdrawal from the case or the appointment of conflict counsel from the Office of Public Advocacy. O'Brien assured the court that she would continue to represent McDonald zealously and effectively.

Superior Court Judge Carl Bauman denied McDonald's request for a new attorney, finding that (1) he had no authority to order the Agency to give McDonald a different public defender, and (2) there was no basis for vacating the Agency's appointment and appointing conflict counsel. The court then gave McDonald two options: he could continue with the Public Defender Agency or he could waive his right to appointed counsel and represent himself.

The court cautioned McDonald against waiving his right to counsel, providing a lengthy explanation of the risks associated with self-representation. McDonald nevertheless chose to waive his right to counsel. The court found that the waiver was knowing and voluntary and that McDonald was competent to represent himself at trial.

The case then proceeded to trial with McDonald representing himself. At trial, the jury convicted McDonald of three counts of second-degree misconduct involving a controlled substance (Counts I-III); two counts of fourth-degree misconduct involving a controlled substance (Counts IV and VI); one count of second-degree misconduct involving weapons (Count VII); one count of third-degree misconduct involving weapons (Count VIII); and two counts of violating the conditions of his release (Counts XI and XII).

The jury was unable to reach a verdict on the three remaining counts: two theft counts alleging that the guns found in the trailer were stolen and one third-degree misconduct involving a controlled substance count. The State later dismissed those counts.

c) McDonald's motion for new trial

Prior to sentencing, McDonald filed a motion for a new trial through newly appointed conflict counsel. The motion alleged that a supervising attorney from the Anchorage office of the Alaska Public Defender Agency had recently determined that the Agency's Kenai office had three conflicts of interest that should have precluded its representation of McDonald. McDonald argued that his waiver of counsel was therefore invalid because it was based on incomplete and misleading information about the Agency's lack of conflicts.

At the request of Judge Bauman, Superior Court Judge Sharon Gleason held an evidentiary hearing on the alleged conflicts, at which Deputy Public Defender Douglas Moody appeared. Neither the prosecutor nor McDonald's attorney were present at this hearing.

At the hearing before Judge Gleason, Moody testified that there were three potential conflicts that would have been identified if the Kenai office had run what he considered to be a proper conflict check. The first two potential conflicts related to the Agency's prior representation of two of the State's potential witnesses on the theft charges. However, neither witness actually testified at trial, and these charges were later dismissed by the State.

The third potential conflict of interest — the alleged conflict primarily at issue in this appeal — arose from the Agency's simultaneous representation of Horsley and McDonald. Moody testified that this simultaneous representation created a conflict because a potential defense in McDonald's case would have been adverse to Horsley's interest.

Moody stated that one potential defense theory suggested by the evidence was that the "Jack" on the recording of the second controlled buy was actually Jack Horsley, not McDonald's brother, and that Hooper lied about "Jack's" identity (and, by implication, McDonald's involvement) because he was under pressure from the police to produce new targets for the undercover investigation. Moody asserted that this defense theory was worth investigating, but the Agency could not have pursued this investigation (or used the theory as leverage in plea negotiations) because doing so would have created a conflict in the Agency's representation of Horsley.

Based on Moody's testimony, Judge Gleason issued a short written order finding that the Kenai office of the Public Defender Agency had a "clear conflict" when it represented McDonald while also simultaneously representing Horsley. Judge Gleason's order expressed no opinion on the merits of McDonald's underlying motion for a new trial.

Judge Bauman subsequently held an evidentiary hearing with the parties on whether the alleged conflicts entitled McDonald to a new trial.

At the hearing, McDonald's original public defender, O'Brien, testified that she could not remember if she ran a conflict check in McDonald's case but that she was unaware of any conflict that precluded the Agency's representation and unaware of any conflict in simultaneously representing McDonald and Horsley.

Judge Bauman issued a written order denying McDonald's motion for a new trial. In the order, the judge concluded that McDonald failed to show that there was "an actual conflict [that] adversely affected his lawyer's performance." The judge found that the only connection between McDonald's case and Horsley's case was the confidential informant, Hooper. The judge also found that nobody in the Kenai office perceived any conflicting loyalties in representing both McDonald and Horsley, and that the performance of the Agency lawyers at the time of representation was therefore not adversely affected by any conflicting loyalties. The judge also found that the "Jack" on the recording was not Jack Horsley, and that the Kenai attorneys were in a position to know this. Finally, the judge found that McDonald's waiver of his right to counsel was knowing and voluntary and unaffected by any of these alleged conflicts.

This appeal followed.

Did the superior court err in denying McDonald's motion for a new trial?

On appeal, McDonald challenges the superior court's denial of his motion for a new trial on three grounds. McDonald argues first that the court erroneously placed the burden on him to prove that the alleged conflicts affected his attorney's performance. He contends that the burden should have been on the State to disprove beyond a reasonable doubt that the alleged conflicts affected his attorneys' performance. McDonald argues next that the court did not give proper deference to Judge Gleason's finding that the Agency had a "clear conflict." Lastly, McDonald argues that the court erred in upholding his waiver of counsel because his waiver was based on misinformation regarding the Agency's conflicts.

We address each of these contentions in turn.

Did the superior court apply the correct legal standard?

The state and federal constitutional rights to effective assistance of counsel include the right to an attorney who is not actively representing conflicting interests. This right to conflict-free counsel extends to all critical aspects of the representation, including "planning the defense strategy, investigating the case, deciding whether to seek or accept a negotiated settlement, deciding how to present and argue the case, and (if the client is convicted) deciding how to approach sentencing."

When a defendant seeks post-conviction relief based on a claim that his right to conflict-free counsel was violated, the defendant generally bears the burden of proving both (1) the existence of conflicting loyalties, and (2) the actual effect on the attorney's representation of the defendant. Although the defendant does not need to show "prejudice" in the sense that the final outcome of the case would have been different, the defendant must show that the conflict actually affected the attorney's preparation or presentation of the case in a manner that was adverse to the defendant. In other words, the defendant must show that the attorney took some action or failed to take some action beneficial to the defendant because of conflicting loyalties; it is not enough for the defendant to show a "conflict in the abstract" or a "mere theoretical division of loyalties."

Under Alaska law, a different test applies when an attorney represents co-defendants. In that situation, Alaska law (unlike federal law) shifts the burden to the State to prove that the conflicting loyalties inherent in representing co-defendants did not adversely affect the representation.

McDonald argues that this latter standard should apply in his case because he claims that "the conflicting loyalties inherent in simultaneously representing both McDonald and Horsley" made them "akin" to co-defendants. We disagree. McDonald and Horsley were not co-defendants; nor were they "akin" to co-defendants. As the superior court found, the only real connection between McDonald's case and Horsley's case was that the same confidential informant, Hooper, was involved in both undercover investigations. We conclude that the superior court applied the correct legal standard to McDonald's motion for a new trial and properly held McDonald to the burden of showing an actual conflict of interest that adversely affected his attorneys' performance.

McDonald also argues that the superior court's conclusion that he failed to meet this burden was error. McDonald argues that his best leverage in pre-trial negotiations, and his best theory of defense at trial, was that the "Jack" on the recording was Jack Horsley. He asserts that the only explanation for why his attorney failed to use this defense was her conflicting loyalty to Horsley, whom the Agency also represented.

But the record establishes that this potential defense theory never occurred to McDonald's attorney. Indeed, this defense theory apparently did not occur to anyone at the Agency until after McDonald was already convicted, when the Anchorage office conducted a new conflict check.

Nor does the record before us show that it was incompetent for the Agency attorneys to fail to consider this potential defense theory. Given the superior court's finding that the "Jack" on the recording was not Jack Horsley — a finding that McDonald does not challenge on appeal — we conclude that a competent attorney who was aware of this potential defense theory could nevertheless have valid independent tactical reasons not to pursue it.

Did the superior court fail to give proper deference to Judge Gleason's finding of a "clear conflict"?

McDonald claims that Judge Bauman failed to give proper deference to Judge Gleason's finding that the Kenai office of the Public Defender Agency had a "clear conflict" when it represented McDonald.

We disagree that Judge Bauman was required to defer to Judge Gleason's finding of a "clear conflict." Nor do we believe that the two judges' orders are necessarily inconsistent.

As Judge Gleason's order made clear, her finding of a "clear conflict" was based solely on "the representations of Mr. Moody at the hearing." Judge Gleason's knowledge of this case was limited to that hearing. She did not know anything about what was known, or not known, by the lawyers who actually represented McDonald. Moreover, as her order made clear, her ruling was narrowly focused on the limited question before her, and she was not in a position to express any opinion on the merits of McDonald's pending motion for a new trial.

In contrast, Judge Bauman was tasked with determining whether, at the time of its representation of McDonald, the Agency was laboring under a conflict of interest that actually adversely affected the performance of the attorneys who worked on McDonald's case. Having presided over the earlier representation hearings and the later evidentiary hearings on the motion for a new trial, Judge Bauman was in a position to make the necessary determinations of fact required to rule on this issue.

Accordingly, there is no merit to McDonald's claim that Judge Gleason's finding of a "clear conflict" should have governed Judge Bauman's resolution of McDonald's motion for a new trial.

Did the alleged conflict render McDonald's waiver of counsel invalid?

McDonald also argues that his waiver of counsel was invalid because it was based on Assistant Public Defender O'Brien's "false" statements that she was unaware of any conflict of interest that would justify appointing the Office of Public Advocacy to McDonald's case. But, as Judge Bauman found, O'Brien was truthful when she reported that she was unaware of any conflicts.

McDonald's real argument appears to be that O'Brien should have been aware of these alleged conflicts — i.e., that she was ineffective in failing to recognize the conflicts and moving to withdraw. But this argument rests on a number of assumptions that remain unproven in McDonald's case, including: (1) that the conflict check performed in McDonald's case fell below the minimal level of competency; (2) that but for the incompetent conflict check, the Agency would have sought to withdraw from McDonald's case; (3) that the trial court would have granted the motion to withdraw and appointed conflict counsel; and (4) that McDonald would have proceeded to trial with conflict counsel and would have decided not to waive his right to counsel and proceed pro se.

We acknowledge that the record shows that McDonald did not want to represent himself and that he felt "forced" to do so because the judge would not appoint different counsel. But the record also shows that McDonald's complaints about his attorney were unrelated to any of the alleged conflicts now being raised. The record also supports the judge's finding that McDonald was aware of the risks of self-representation and that he knowingly and voluntarily chose to waive his right to counsel and represent himself at trial.

Thus, for all the reasons explained above, we affirm the superior court's denial of McDonald's motion for a new trial.

Did the superior court err in allowing the State to introduce evidence regarding McDonald's prior drug transactions?

As a separate point on appeal, McDonald argues that the superior court erred by allowing the State to introduce testimony by Walter Griglione that McDonald had previously made large purchases of heroin and methamphetamine from Griglione, and that McDonald had also sold drugs to Griglione. McDonald claimed at trial that he was a drug user, not a drug seller, and the court admitted the evidence of McDonald's prior drug transactions under Alaska Rule of Evidence 404(b)(1) to show McDonald's motive, intent, and opportunity to distribute drugs on a commercial scale.

Griglione testified that in October or November of 2007, he sold McDonald a 25-gram solid piece of heroin and one ounce (28 grams) of methamphetamine. Griglione stated that the heroin was more than what an individual user would buy and that the solid piece could be repackaged into one-tenth of a gram packages, which sold for $50 a piece. He also testified that methamphetamine was usually sold to individual users in units of one-half gram for $100. Finally, Griglione testified that he purchased ten oxycodone pills from McDonald.

McDonald argues that Griglione's testimony was not relevant to show McDonald's opportunity to distribute drugs or his identity as the seller in the controlled buys with Hooper. But, as the State points out, Griglione's testimony was relevant to show that McDonald had a source for commercial quantities of heroin a very short time before he sold Hooper two solid pieces of heroin. Griglione's testimony was also relevant to impeach McDonald's testimony at trial that he had never sold methamphetamine or oxycodone and that he was not involved in the heroin trade.

Because we agree with the trial judge that Griglione's testimony was relevant for case-specific purposes other than to show his propensity to buy or sell drugs, we conclude that the admission of this evidence was not an abuse of discretion. We note that the judge could have done more to ensure that the jury did not use this evidence for impermissible propensity purposes by, for instance, instructing the jury on the limited purposes for which Griglione's testimony was admitted. But McDonald did not request such an instruction, and we conclude that the failure to give such an instruction was not plain error.

Did the superior court err in ruling that McDonald opened the door to testimony about his recent arrest at the Anchorage airport?

McDonald took the stand and testified at his trial. During his cross-examination, the prosecutor asked him if he had purchased or sold Oxycontin pills in the past. McDonald replied that he had been prescribed Oxycontin pills years earlier but that, as far as his personal use was concerned, he avoided the drug because it was too expensive. He also denied selling Oxycontin.

The prosecutor then asked McDonald if it would be fair to say that, with the exception of his previous prescription, he had no involvement with Oxycontin. McDonald answered "yes" and, a few questions later, denied any involvement or interest in Oxycontin.

Following this exchange, the prosecutor sought to introduce evidence that while McDonald was released on bail prior to trial, the police arrested him in the Anchorage airport and found over forty Oxycontin pills in his possession. The prosecutor argued that McDonald "opened the door" to this evidence when he denied any involvement with Oxycontin. The trial judge agreed and, over McDonald's objection, permitted the prosecutor to inquire into the circumstances of this arrest.

McDonald asserts that this was error because he claims that he never denied using Oxycontin at trial and that, instead, his testimony was limited to the claim that Oxycontin was too expensive. But, as detailed above, McDonald did directly deny having "any interest or involvement" in the drug.

Given these denials and given that McDonald's involvement with Oxycontin was not a collateral issue in this case, we conclude that it was not an abuse of discretion for the trial court to allow the prosecutor to introduce the evidence of McDonald's recent involvement with the drug.

Did the superior court commit plain error in failing to instruct the jury on the required nexus between the weapons and drug offenses?

Count VII of the State's indictment charged McDonald with second-degree weapons misconduct for possessing a firearm during the commission of a felony drug offense. In Collins v. State, we held that this crime "requires proof of a nexus between a defendant's possession of the firearm and the defendant's commission of the felony drug offense." To establish the required nexus, "the State must prove that the defendant's possession of the firearm aided, advanced, or furthered the commission of the drug offense. Possession of both drugs and a firearm alone is insufficient for such a finding — even if the drugs and firearm were in close physical proximity."

McDonald acknowledges that he never asked the superior court to instruct the jury on this nexus requirement, but he claims that it was plain error for the court not to do so on its own initiative. We agree that the superior court should have instructed the jury on this element regardless of McDonald's failure to object. However, we conclude that the parties cured the error in their closing arguments.

During her closing argument, the prosecutor briefly discussed the weapons misconduct charge, arguing that "the only reason [McDonald] had those guns sitting out there [in the trailer where he was arrested] locked, loaded, and ready to fire, aimed at the door, was to protect his drugs and his drug money, the $17,340 that he had on his person."

But when McDonald made his closing argument, he specifically told the jury that the State had to prove that there was a "nexus" between the weapons and drugs such that the "weapons were used to further the commission of a misconduct involving a controlled substance [offense]."

And in rebuttal, the prosecutor agreed with McDonald that a nexus was necessary. The prosecutor then went on to argue that the State had proven the nexus requirement beyond a reasonable doubt.

As we have noted in prior decisions, the arguments of parties at trial can sometimes cure defects or omissions in jury instructions. Here, we conclude that the court's failure to give the jury an instruction on the nexus requirement was sufficiently cured by the closing arguments because the parties clearly agreed on the applicable law.

Did the trial court err in failing to merge Counts III and VII?

The jury returned guilty verdicts on nine of the twelve counts charged against McDonald. Prior to sentencing, McDonald asked the superior court to merge his convictions for two of those counts, Counts III and VII. Count III charged McDonald with second-degree misconduct involving a controlled substance for possessing hydrocodone with an intent to deliver. Count VII charged him with second-degree weapons misconduct for possessing a firearm during the commission of a felony drug offense. Judge Bauman found merger inappropriate and declined the request.

We find no fault with this aspect of the judge's ruling: possessing a controlled substance with an intent to deliver implicates different societal interests than possessing a firearm during the commission of a drug offense, so merger of those two counts would have been inappropriate under Whitton v. State. The trouble is with what the judge did next: applying AS 12.55.125(c)(2)(A) to enhance McDonald's sentence for Count III based on the same weapon possession that was the underlying conduct charged in Count VII.

Alaska Statute 12.55.125(c)(2)(A) is a sentencing enhancement that applies to a first felony offender who possessed a firearm during the commission of the underlying offense. Normally, the presumptive range for a first felony offender convicted of a class A felony is 5 to 8 years. But if the enhancement applies, the presumptive range is increased to 7 to 11 years.

By convicting McDonald of Count VII, the jury found that he possessed a firearm during the commission of his drug offenses, which included Count III. Based on this finding, the sentencing judge applied AS 12.55.125(c)(2)(A) and enhanced McDonald's sentence for Count III beyond the normally applicable presumptive range. But, as McDonald points out, there is a problem with this result: the judge also imposed a separate sentence for Count VII (5 years with 3 years suspended). Therefore, McDonald received two punishments for possessing a firearm during the commission of the same drug offense: an enhanced sentence for Count III, and an independent sentence for Count VII.

Although we agree with McDonald that the imposition of a higher presumptive range for the same conduct underlying Count VII was impermissible double punishment, we disagree that merger is the proper remedy.

By enacting AS 11.61.195(a)(1), the legislature decided to treat the possession of a firearm during a felony drug offense as a distinct crime, separate and apart from the underlying drug felony. Given the legislature's intent, we conclude that McDonald's separate conviction for this crime should be preserved to the extent possible.

In contrast, AS 12.55.125(c)(2)(A) does not create a distinct crime. Instead, it is a general sentencing enhancement that applies to all felony offenses. Under a standard maxim of statutory construction, when a specific and a general statute conflict, the specific statute governs. From that rule, it follows that in a situation in which AS 11.61.195(a)(1) and AS 12.55.125(c)(2)(A) cannot both apply, a court should enter a conviction under AS 11.61.195(a)(1) but not enhance the sentence for a separate drug offense under AS 12.55.125(c)(2)(A).

We therefore vacate McDonald's sentence on Count III and remand to the superior court for re-sentencing on Count III using the non-enhanced presumptive range of 5 to 8 years.

Should McDonald's convictions for Count IV (maintaining a building for distribution of controlled substances) and Count VI (possessing a controlled substance with intent to distribute) merge?

McDonald contends that his conviction for Count IV (maintaining or keeping a building for the distributing or keeping of controlled substances) should merge with his conviction for Count VI (possessing alprazolam with an intent to manufacture or deliver). Although McDonald did not raise this argument below, under the fundamental error doctrine, a double jeopardy claim raised for the first time on appeal will still be considered on its merits.

We agree with McDonald that these two counts should merge. We recently concluded in Rofkar v. State that a conviction for maintaining a building for keeping or distributing controlled substances under AS 11.71.040(a)(5) had to merge with a related conviction for possessing and manufacturing marijuana. We based this conclusion on the legislative history of AS 11.71.040(a)(5), which indicated that the primary purpose of the statute was to ensure that a person who facilitated another person's drug crimes did not escape liability — not to separately criminalize the keeping or maintaining of a building by a drug offender.

Our holding in Rofkar controls the outcome of this case. On remand, the superior court should merge Count IV with Count VI and resentence McDonald accordingly.

Conclusion

McDonald's convictions are AFFIRMED. McDonald's sentences are REMANDED for merger and resentencing in accordance with this decision.

We do not retain jurisdiction.