Allied offenses: once more, into the breach
As the countless legions of regular readers of this blog can contest, I take second place to no one in lambasting the current state of Ohio's allied offense law. Well, maybe second place to one person: Ohio Supreme Court Justice Judith Lanzinger. Judging from her partial dissent in yesterday's decision in State v. Williams, she's none too pleased with it, either.
The Williams case arose out of a dice game that went awry, the denouement of which was Williams firing two shots at the victim, McKinney, the first missing and the second leaving McKinney paralyzed. For this Williams was convicted of two counts of felonious assault -- one for causing serious physical harm, one for using a deadly weapon -- two counts of attempted murder -- one for attempting to kill somebody, one for attempting to kill somebody in the commission of a crime of violence -- with a weapons disability count thrown in for good measure. The 8th District had held that the felonious assault charges were allied offenses with the attempted murders, that the attempted murders were allied to each other, and that therefore the two counts of felonious assault and the two counts of attempted murder merged into a single conviction for attempted murder.
The good news is that the Supreme Court agreed that felonious assault and attempted murder are allied offenses. The bad news is, well... really bad.
I'd spent most of my post about the oral argument in Williams (here) on Williams' attorney John Martin's argument that the focus on allied offenses should be on conduct: if the harm flows from a single act, then any offenses which might be charged for that conduct are allied. The court shrugged that off in a paragraph, stating that it would create an "irrebuttable presumption that the legislature intended an offender to receive a single punishment when a prohibited act constitutes more than one offense. We do not presume this intent..." Why not? Doesn't the allied offense statute itself create that presumption? That was pretty much how the statute was interpreted before State v. Rance mucked things up, and the legislature didn't change the statute. That's a cardinal principal of statutory construction: if a statute has been interpreted a certain way and the legislature doesn't change it, there's an inference that the legislature agrees with the interpretation.
But that's the least of the problems with the opinion. In my earlier post, I'd given short shrift to the prosecution's argument that the defendant could be convicted of two separate counts (of either offense) based on the fact that he fired two separate shots. Martin had effectively countered this by noting its acceptance would entail a defendant getting a separate count of felonious assault for each punch thrown in a bar fight.
Or so I thought. The court notes that the four counts "arise out of two separate gunshots he fired at McKinney"; two of the counts (one for felonious assault and the other for attempted murder) correlate to the bullet that missed, and the other two to the bullet that paralyzed McKinney.
Thus, for each bullet Williams fired at McKinney, he was found guilty of one count of felonious assault and one count of attempted murder. Accordingly, we consider whether the attempted-murder and felonious-assault charges relating to each gunshot are allied offenses of similar import. [My emphasis.]
The court then takes its customary stroll through the allied offense statute, the statutes regarding attempted murder and felonious assault, and concludes that the latter and the former do merge. The court reverses the 8th District's decision and sends it back. The odd thing is that you have to read the opinion a couple of times before you realize that the majority bought into the one shot/one count theory. The language quoted above is the closest the court gets to saying that Williams can be convicted of attempted murder for each shot he fired at McKinney.
The real problem with the court's opinion in that regard is that it ignores the fact that Williams wasn't charged with attempted murder for each shot he fired; he was charged with attempted murder under two separate theories, reflected in the two subsections of the attempted murder statute: one that he tried to kill a person, and one that he tried to kill a person while committing a crime of violence. But back in State v. Brown (discussed here), the court had held that one couldn't be convicted of aggravated assault under separate theories (causing serious physical harm and using a deadly weapon, in that case), because it was clear that the legislature had intended only one punishment for aggravated assault, regardless of how it was committed. Doesn't the same argument apply here? And why doesn't the court even address that? The opinion reads as if they spent so much time on figuring out whether felonious assault and attempted murder were allied that they just decided to call it a day at that point.
The result is that we're left with an opinion that casts some doubt on the validity of Brown, and seems to suggest that a defendant can be convicted of counts of attempted murder for each shot he fires. Go back to Martin's argument about the bar fight: does the same reasoning apply? Can a defendant be convicted of a count for every punch he throws? Must the jury decide for each punch whether it was likely to cause serious physical harm?
There have been several instances in the past decade where the court has embarked on a new area of jurisprudence with little appreciation for the consequences that would ensue. Westfield v. Galatis (discussed here) was intended to establish a test for overruling precedent, and instead articulated standards so strict that it became a strait-jacket; the court hasn't expressly overruled a case since Westfield came down in 2003. The court's void/voidable holdings on post-release controls are another. Colon would be a third, and Rance and the allied offense jurisprudence makes it a quartet. The best thing the court could have done was to accept Justice Lanzinger's contention in her partial dissent in Williams that Rance simply be overruled. It didn't, and Williams accomplishes what I thought was impossible: making the law of allied offenses even murkier.