Allied offenses and guilty pleas
I was going to go on vacation for the rest of the month in a show of solidarity with the Iraqi Parliament, but instead yesterday found myself skimming through some recent 8th District opinions, and came across last week's decision in State v. Shie.
Actually, it was the second time that Shie had been before the appellate court. He'd been charged with multiple counts of rape involving a 14-year-old girl (he was 31), and had pled out to four counts of sexual battery, after which the trial court sentenced him to four years -- one less than the maximum -- on each count, and ordered them served consecutively. He appealed the sentence, and it was remanded because of Foster. The judge gave him the same sentence, and he appealed again.
What caught my eye was the court's disposition of his argument that the offenses to which he pled were allied offenses, and thus should have merged at sentencing. The court affirmed its decision in the earlier appeal "that, by pleading guilty, appellant had waived his argument that the offenses of which he was convicted were allied offenses of similar import."
That didn't sound right, and it may well not be. I won't get into the whole history here, but the short version is that there's another case from the 8th District in 2000, State v. Stansell, which says the exact opposite:
Where a defendant pleads to multiple offenses of similar import, and the trial court accepts the plea, the court must conduct a hearing and make a determination, before entering judgment, as to whether the offenses were of similar or dissimilar import and whether or not there was a separate animus with regard to each crime committed.
Shie is based on the idea that a guilty plea waives all claims of error leading up to it, and that's pretty much true: that's what happens to a speedy trial argument, or a suppression issue. However, a guilty plea doesn't result in a conviction; the conviction doesn't take effect until sentence is actually imposed, and part of determining what crimes you should be convicted of is the allied offenses analysis. I think the Stansell court is correct in holding that that analysis, since it must necessarily come after the guilty plea, isn't waived by the plea.
A couple of caveats here. First, as Stansell also recognizes, if you don't object to the trial court's failure to consider whether the offenses were allied, you waive the right to assert that on appeal. That means it can only be analyzed under either a plain error standard, or an argument that trial counsel was ineffective for not objecting. That's not quite as bad as it sounds; obviously, if the judge has sentenced you to consecutive terms for crimes which should have merged, you have a pretty good argument that the outcome would have been different but for the error, which is the standard you have to meet. On a guilty plea, though, the facts aren't very well developed, and that makes it much harder for you to show to an appellate court that the charges should have merged.
Second, there is an element of unfairness here, which I think is what also motivated the court's ruling in Shie. The defendant was initially charged with 20 counts, including three of rape, and all the counts had sexually violent predator and repeat violent offender specs. Shie obviously received a substantial bargain in getting all that dropped to four third-degree felonies. To allow him to turn around and argue that those four charges should really be merged into one was obviously more than the court was willing to buy. And there's nothing to indicate that they should've merged into one; these incidents took place over a period of time, and it's quite likely that the four charges represented four separate incidents, which of course wouldn't have merged anyway.
Still, it's something that you might want to look at. Given that Foster eliminated the barrier to imposition of consecutive sentences, arguing that the offenses merged is a good way of preventing that from happening.