Rance is dead
Six months ago, you could have made a compelling argument that the clarity of Ohio criminal law would be substantially enhanced by overruling three decisions: State v. Colon, which had held that an indictment which tracked the language of the statute was defective if didn't specify a mens rea; State v. Bezak, which had held that sentences where post-release control hadn't been properly imposed were void; and State v. Rance, which required that, in determining whether two offenses were allied and thus merged, the court had to compare the elements of the two crimes in the abstract.
Well, here we are, six months later. State v. Horner took care of Colon. Two weeks ago, in State v. Fischer (which we'll discuss tomorrow), the court decided that "void" didn't really mean void, and greatly limited the impact of Bezak. And last week, in State v. Johnson, the Supreme Court concluded that its efforts to salvage Rance -- which I once described as being "vaguely reminiscent of Weekend at Bernie's, with the plot focused on increasingly outrageous efforts to fool people into believing that Bernie isn't really dead" -- had run its course.
The plurality opinion -- and more on that in a minute -- is neatly divided into three segments: the law on allied offenses before Rance, Rance itself, and the law after Rance. Act III, of course, involved the increasingly frenetic attempt to patch the holes in Rance, with decisions like Cabrales (the elements must align, but "not exactly"), Brown (whether the two statutes at issue protected different societal interests, Winn (whether two crimes would "probably" arise out of the same conduct), and Broadhead (the offenses merged if they were committed on an even-numbered day, otherwise not). Okay, I made up that last one, but you get the idea. So did the court, unanimously deciding that it preferred Act I to Acts II and III, and that Rance had to go.
So if it was unanimous, what about this "plurality opinion" stuff? Well, that's where it gets interesting. The author of the opinion in Johnson was outgoing Chief Justice Eric Brown, who opposed sitting justice Maureen O'Connor for the chief justice job in the last election. Brown, of course, was appointed to the spot after the death of Tom Moyer, and there are some indications that the appointment didn't go over too well with O'Connor and most of her Republican colleagues. In the last two weeks of the year, the court handed down twelve decisions. Brown dissented in six of them; in half of those, he was the sole dissenter. In Johnson, only Pfeiffer and Lundberg Stratton joined Brown's opinion, with the other four "concurring in the syllabus and judgment." (And to top it off, Pfeiffer and Lundberg Stratton concurred in O'Connor's opinion, which concurred only in the judgment. Go figure.)
So now that we're in Act IV, the post-Rance era, what does it all mean? The syllabus, in which everyone joined, says
When determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be considered.
That's nice, but what does "must be considered" mean? Drawing from a concurring opinion by Justice Whiteside in the 1988 case of State v. Blankenship, the plurality lays down a three-part test. First, the court must determine whether "the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other." The key here, though, is "whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other." If the two offenses can be committed by the same conduct, the next step is to detemine whether they actually were, that is, whether they were committed with the same act. If so, they're allied and they merge.
As I said, while all seven justices agreed that Rance had to go, only two others joined in Brown's opinion. O'Connor says she's writing separately "because I do not believe that the majority opinion clearly sets forth the appropriate considerations for determining whether offenses arise out of the same conduct and should be merged." The fact that she refers to it as a "majority" opinion gives away that there was some last-minute maneuvering on the votes, and if she ever explains her points of disagreement with Brown, I missed it. Ditto for O'Donnell's concurrence.
That's a good thing, actually, because if either O'Connor or O'Donnell had expressed a different approach, we'd have a situation where Rance was replaced with nothing. As it stands, I think it's fair for trial judges to utilize Brown's approach, even though it technically is only a plurality opinion.
And, of course, this doesn't mean the end of any problems in determining when offenses are allied. In Johnson, the defendant essentially beat his seven-year-old son to death, and was convicted of both child endangering and felony murder; the predicate offense for the felony murder was the child endangering. That was an obvious case of a single act constituting two offenses. But what of, say, a felony murder arising out of an aggravated robbery, such as where the victim drops dead of a heart attack or one of the accomplices is killed by the police? (And yes, a defendant can be convicted of felony murder under either of those scenarios.) Under any of the previous tests -- Rance, Brown's societal interest, Winn -- the two would be deemed separate. If the "same conduct" rule articulated in Johnson were followed, I'm not so sure they wouldn't be allied. Or what about a robber who also pistol-whips his victim into a coma? That would normally give rise to two offenses -- aggravated robbery (serious physical harm) and felonious assault (the same). Does the same conduct now lead to a merger of the two crimes?
At any rate, we're still going to be having discussions about allied offenses. It's just that, with the departure of Rance from the scene, they won't be stupid ones.