Fernando Cabrales had plans for the 300 pounds of marijuana he was bringing into the state, but those plans went out the window when the two guys he’d hired to drive it to Cincinnati got busted, and wasted no time in rolling over on him.  His woes compounded when he was charged with three separate offenses regarding the same 300 pounds of marijuana – possession, preparation for distribution and sale, and sale — and upon his conviction, was sentenced for all three. 

He argued that the offenses were “allied offenses of similar import,” and should have merged for sentencing, so that he could only be sentenced for one of them.  The test for determining whether two crimes should merge at sentencing, a two-step analysis enunciated by the Ohio Supreme Court in numerous cases, seems relatively simple: 

In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must proceed to the second step. In the second step, the defendant’s conduct  is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses.

The problem arose after the Court, in State v. Rance, held that the comparison of the statutory elements in the two crimes had to be done in the abstract, without reference to the facts of the case.  Last week in State v. Cabrales, the Court took another look at it.

The 1st District had held the convictions for possession and for preparation for distribution and sale had merged, and the Supreme Court agreed.  A person who prepared drugs for distribution and sale necessarily had to possess them, so those two offenses merged.  On the other hand, someone could offer to sell drugs without actually possessing them — either through an intermediary, or even if he didn’t have any drugs at the time — so those remained separate offenses.

The Supreme Court in Cabrales freely acknowledged that Rance had led to “inconsistent, unreasonable, and, at times, absurd results,” which it blamed on Rance being misinterpreted.  The Court has a point:  some courts interpreted Rance to mean that the elements of the two offenses had to align exactly, and, as the Cabrales court points out, that’s not going to happen unless they’re the same offenses.  According to Cabrales, the appropriate test is

if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import.

That’s well and good, but it’s not clear exactly how Cabrales will change things.  Let’s take a look at two earlier 1st District cases.  The first is State v. Hundley, which I highlighted several months ago, the defedant had driven drunk and plowed into a tree, killing his four passengers.  He was charged with eight counts of aggravated vehicular homicide — four for driving recklessly, and four for driving drunk — and the court affirmed the eight convictions (and sentences), holding that it was possible to drive recklessly without being drunk, and therefore the offenses were allied.

Cabrales might command a different result.  As Judge Painter argued in his dissent in Hundley, one cannot drive drunk without driving recklessly, so the two offenses should have been deemed of similar import.  I think the Cabrales court would buy that analysis; I think the upshot of Cabrales is that if either crime can’t be committed without committing the other, it meets the test for allied offenses, and you go on to the separate animus part.

But then take a look at State v. Payne, where the defendant had shot somebody, and was convicted of two counts of felonious assault:  one for using a deadly weapon, and one for causing serious physical harm.  Relying on earlier decisions, the court again concluded that the two weren’t allied offenses.  Here, even under Cabrales, the analysis might hold up:  you can use a gun without harming anyone, and you can cause serious physical harm without using a gun.  It’s possible to commit either crime without committing the other.

The real problem is the insistence on an abstract comparison of the elements.  The whole purpose of the allied offense analysis is to allow a person to be punished for his acts, but not to be punished twice simply because the same act constitutes two crimes which are, in the context of his acts, functionally indistinguishable.  Convicting a person of eight counts of vehicular homicide for killing four people, or two counts of felonious assault for shooting one, just doesn’t make sense.

Cabrales was the first opportunity the Court had to explain and try to rectify the problems with Rance.  It won’t be the last.