… on allied offenses, sentencing, and the castle doctrine…

I’ve been having a running debate with my buddy John Martin, appellate chief of the county PD”s office, about allied offenses, and the implications of State v. Williams, which held that felonious assault merged with felony murder.  John’s been pushing the idea that any predicate offense to felony murder is allied with that crime; for example, if a defendant was charged with felony murder and aggravated robbery, the latter charge would merge with the former.

I was initially skeptical, because some of Martin’s ideas appear to be the product of inordinate alcohol consumption (he puts the “pub” back into “public defender”).   But I think he’s got a pretty good point here.  It depends upon how you compare the elements of the two offenses in the Rance/Cabrales first step or, more precisely, what elements you compare.  Obviously, you can commit either crime without committing the other:  you can commit a felony murder in the commission of a burglary, say, and you can commit an aggravated robbery without killing anyone.

But if the first step is to be done by comparing the elements alleged in the indictment, that’s another story:  obviously, you can’t commit a felony murder in the commission of an aggravated robbery without also committing the aggravated robbery.  That’s supported by the Supreme Court’s decision in State v. Williams (discussed here), where the court held that felony murder — murder in the commission of a felonious assault — merged with the predicate offense of felonious assault.  We’ll get a better idea of how all this shakes out when the Supreme Court decides State v. Johnson, which presents the question of whether child endangering and felony murder based on that charge merge (oral argument discussed here), but it’s something to think about — and argue — at least until then.

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I’ve been doing some work recently on Federal sentencing, and the contrast between that and Ohio’s scheme is stark, both at the trial and appellate level.  District judges have substantially more discretion since Booker relegated the Sentencing Guidelines to an advisory role, but that discretion is far from unfettered:  the Supreme Court and the circuit courts have articulated a fairly clear standard by which sentences are to be reviewed.

That’s hardly the situation with Ohio law; post-Foster, it’s not even entirely clear what the appellate standard of review for sentencing is.  The Supreme Court took a stab at answering that question in State v. Kalish (discussed here), finding that appellate courts had adopted one of two standards:  whether the sentence was contrary to law, or whether it was an abuse of discretion.  The Supreme Court decided to double its pleasure and double its fun, and held that both standards were to be employed:  the appellate court reviews the sentence first to determine whether it’s contrary to law, and then to decide whether it’s an abuse of discretion.

Well, maybe.  Three justices dissented, and a fourth — a visiting judge, Willamowski of the 3rd District – concurred only in the judgment.  Most courts have gone ahead and followed Kalish, while noting that they really don’t have to because it’s only a plurality opinion.

Well, that’s not quite right.  Willamowski did write an opinion, and last week, the 2nd District, in State v. Hubbard, parsed that.   After closely examining Willamowski’s concurring opinion, it concluded that the issue of whether the trial court had actually bothered to consider the seriousness and recidivism factors under RC 2929.12, and everything else — imposition of maximum or consecutive sentences – is reviewed on a contrary to law standard, but the trial judge’s application of the 2929.12 factors is reviewed for abuse of discretion.

The author of Hubbard could certainly claim to know the thinking behind the concurring opinion in Kalish.  It was Judge Willamowski, who was sitting on the 2nd District by assignment. 

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In my first post about Ohio’s New, Improved “castle doctrine” which creates a presumption that the defendant acted in self-defense in an attack in his home or car, I ventured the view that I didn’t know

whether this is worth all the fuss; it’s not as though the nightly news regularly bombards us with scenes of homeowners being perp-walked out of their houses for shooting a burglar. 

That was pretty much on the money, as it turns out:  the two years since the law’s enactment have produce a grand total of three appellate cases.  The first one was a puzzling effort by the 8th District, which I discussed in January.   Two more came just last week, in State v. Clellan and State v. Miller.  Neither involved an actual castle — er, house.  In Clellan, an attempt to back into a driveway produced an altercation, a dialogue worthy of Quentin Tarantino (sample:  “I’m just dropping her off, fuck-face”), a gun, and a conviction for aggravated menacing.  Clellan relied on the provision of the statute which extends the defense to one who is in his own car, and uses force against a person who is unlawfully attempting to enter the vehicle.  The 10th District affirms the conviction, concluding that the jury could have found that Clellan wasn’t even in the car when he pulled the gun. 

Miller presented a similar equation of men+cars+testosterone=fight, and Miller’s attempt to avail himself of the defense foundered on the fact that he was indisputably not in the vehicle at the time.  The 12th District does add some case law to the statute.  Self-defense requires a showing that the defendant was not at fault in creating the situation giving rise to the affray, and the court holds that this also applies to the castle doctrine.