Year in Review - Allied Offenses
The Ohio Supreme Court spent much of the past year attempting to extricate itself from the mess it created in its 1999 decision in State v. Rance. Before that decision, allied offense analysis under Ohio law followed pretty much of a common-sensical approach. Although that analysis nominally required a two-step test -- first, comparing the elements of the two offenses, and second, determining if they were committed with a separate animus -- in reality the courts focused on the defendant's conduct: if both offenses were the result of the same conduct and involved the same harm, then the defenses were deemed to be allied.
Rance changed that, by rigidly imposing the two-step test, and further requiring that in the first step, the elements of the two crimes had to be compared in the abstract. As I explained back here, Rance's legal pedigree was dubious, resting on a dissent in a US Supreme Court decision and a muddled reading of legislative intent. The "abstract comparison" part of the test required only that each of the two offenses could conceivably be committed without committing the other; typical of the results it produced was State v. Hundley, where the 1st District upheld the defendant's convictions on eight counts of aggravated vehicular homicide -- half for driving recklessly and half for driving drunk -- despite there being only four victims, a result which led Judge Painter to complain in dissent that "nowhere this side of Oz can that amount to eight counts of homicide."
In April, the Supreme Court reviewed another 1st District decision, State v. Cabrales, in which the appeals court had held that convictions for possession of drugs and preparation for distribution and sale had merged. In its decision affirming the result, the Supreme Court acknowledged that Rance had led to “inconsistent, unreasonable, and, at times, absurd results.” Not our fault, though, said the court: the lower courts have misinterpreted Rance. What was the proper interpretation? Well, the elements of the two offenses don't have to be exactly aligned; if the two offenses are so similar that committing one will necessarily result in committing the other, they're allied offenses. That left it up to the trial and appellate bench to figure out what "not exactly aligned" meant.
Good luck with that. When I wrote about Cabrales (here), I said "Cabrales was the first opportunity the Court had to explain and try to rectify the problems with Rance. It won’t be the last." That proved to be a good bit more prescient than my decision to hold on to those 200 shares of Chico's stock all the way from $47 to $4.07 a share. The puzzlement of appellate courts over how to handle Rance abated only slightly after Cabrales; in one three-week period, the 8th District upheld a conviction of two counts of felonious assault -- one for deadly weapon and one for serious physical harm — based on a single assault with a pair of scissors, decided that someone firing a single gunshot at somebody else could be convicted of both attempted murder and felonious assault, and ruled that possession of drugs and sale of drugs were allied offenses, despite the fact that the last holding ran directly contrary to Cabrales. (While the court in the latter case held that possession and prep for sale merged, it held that possession and sale didn't.)
The Supreme Court took another stab at it in September in State v. Brown (discussed here), yet another 8th District case in which a panel had concluded that two counts of aggravated assault, one under the physical harm section and the other under the deadly weapon section, did merge. While the Supreme Court unanimously affirmed, Justice O'Donnell's opinion conceded that the two offenses were dissimilar under Rance, because it was possible to commit each without committing the other. Instead, it held that the entire allied offense analysis wasn't necessary when the legislature's intent not to impose cumulative punishments was clear, and that, in considering the general scheme of assault offenses, it was obvious that the legislature had intended to impose only one punishment for aggravated assault, regardless of how the defendant committed it.
Waiting in the wings is the court's impending decision in State v. Winn, discussed here, which was argued in October and presents a case in which the 2nd District reversed the defendant's conviction for robbery and kidnapping. The appellate court based its decision on a pre-Rance Supreme Court case holding that kidnapping and robbery are allied offenses, because kidnapping is "implicit" in every robbery, since the latter crime invariably involves some restraint. The continued viability of Rance is clearly presented by Winn: the state is arguing that since the elements of robbery and kidnapping are different in the abstract, a defendant can be convicted of both in every case of robbery.
That's going to be a tough sell, because Rance is definitely fraying around the edges; in Brown, Justice Pfeifer and Lanziger had concurred on the basis that the concept of allied offenses isn't even implicated where "the defendant’s conduct involves a single act with a single animus," and in the oral argument in Winn Justice Lindbergh Stratton expressed the view that separate punishments aren't appropriate unless "there are very separate motivations" for the crimes. In fact, the biggest impediment to an outright overruling of Rance might be the stringent test the court laid down in Westfield Ins. v. Galatis for determining whether to overrule a prior decision, which I discussed back here.
Still, if any decision could meet the Galatis criteria -- the earlier case was wrongly decided at the time, it is unworkable or impractical, and overruling it wouldn’t unduly harm anyone who’d relied on it -- it's Rance. Especially the "unworkable" part; rather than modifying Rance, Cabrales and Brown simply exposed the flaws in that decision. Betting on the Supreme Court overruling Rance in Winn isn't an odds-on favorite, but it sure beats the hell out of the chances of Chico's going back to $47.