Pleas and allied offenses
I talked yesterday about the general futility of trying to vacate a guilty plea, or, more accurately, appealing the denial of such a motion. I've had trial judges grant them, but if the motion's denied and you have to go up to the court of appeals, the deferential -- some would call it obsequious -- "abuse of discretion" standard kicks in, and you're going to be hard-pressed to show that.
Marques Manus succeeded in doing so, and that probably should have happened, but the result of the court's opinion in State v. Manus is to add a layer of confusion to allied offense jurisprudence.
If criminal cases had theme songs, Manus' would be Paul Simon's "Still Crazy After All These Years." Manus had been diagnosed with various and sundry mental illnesses, including bipolar disorder, and these manifested themselves on the afternoon of September 29, 2009, when he attacked his father's girlfriend, forcing her to the ground, and grabbed her breasts and buttocks. The family dog proved to be her best friend, jumping on Manus and giving her the opportunity to flee. When the police arrived, Manus was holding a knife and threatening to "slice himself."
Manus was indicted for kidnapping with a sexual motivation specification and two counts of gross sexual imposition. Several months later, the State made an offer: Manus could plead to the two counts of GSI, and to a charge of abduction without the spec. The judge gave Manus 15 minutes to talk it over with his lawyer.
What happened next is troubling:
However, when the recess was over, Manus told the trial court that he still could not "think right now"; he was not able to "focus." The transcript indicates Manus became somewhat agitated, since the court asked him to "calm" himself, then repeated the information concerning the potential penalties if he should be found guilty of the indictment as charged, versus the potential penalties involved for the plea agreement.
After giving Manus another five minutes, the judge took the plea. Even more troubling is the fact that it was only at this point that anyone felt it necessary to request a psychological evaluation of Manus.
Before his sentencing, Manus filed a motion to withdraw the plea , and the record would seem to offer ample basis for concluding that Manus' mental illness should have rendered any plea void. The specific problem he cited, though, was allied offenses: Manus asserted that he hadn't understood that his pleas to abduction and gross sexual imposition were to "allied offenses."
At this point, the musical selection segues to the Beatles' "With a Little Help from My Friends." At sentencing, the court inquired of both the prosecutor and defense counsel, "is there anything that merges here?" The former ventured that she did not "believe so," while the latter stated he had no opinion on the matter. The court denied the motion to withdraw.
Manus appealed, raising numerous arguments, the central one being that the court had erred in failing to merge the offenses. The appellate panel concluded that he was right about this, and this portion of the opinion is excellent. I've always appreciated logical arguments more than ones which wholly depend on a string cite of cases, and the court takes the former approach here, presenting a simple logical proof:
- Abduction is a lesser included offense of kidnapping
- Gross sexual imposition is a lesser included offense of rape
- The court has held that rape and kidnapping are allied offenses and merge, unless there is a separate animus
- Therefore, abduction and gross sexual imposition are allied offense and merge, unless there is a separate animus
The court noted that
It is apparent from the prosecutor's recitation of the facts in this case, facts that were not set forth until the sentencing hearing, that Manus had no separate animus in committing the abduction and the gross sexual impositions upon the victim.
That's my emphasis, for reasons which will be clear in a minute.
At this point, it's a simple case -- the two offenses should have merged -- with a simple resolution: a remand back to the trial court for the State to elect on which offense they want to proceed to sentencing. But that doesn't happen:
Manus raised the issue in his motion to withdraw his plea. Since the issue of whether Manus's offenses in this case, i.e., abduction and two counts of gross sexual imposition, constituted allied offenses pursuant to R.C. 2941.25(A) had not been resolved during the plea hearing, the trial court erred in accepting Manus's pleas, in denying his presentence motion to withdraw his pleas, and in imposing sentence.
Again, my emphasis, and here's the problem: Although the question of whether offenses are allied doesn't arise until sentencing, Manus essentially requires the judge to make a finding of whether the offenses merge at the time of the plea; otherwise, the defendant can argue that his plea wasn't "knowing and intelligent."
That's not an entirely illogical result: whether offenses merge or don't can mean years of additional prison time. (It didn't in Manus' case; he got five years of community control sanctions.) Whether offenses are allied would certainly play a part in making a decision to plead. On the other hand, there's plenty of case law that a court is not obligated to advise the defendant of the possibility of consecutive sentences, which pretty undercuts the only basis for claiming that a defendant is entitled to know in advance of the plea whether the offenses will merge.
The ramifications of Manus are difficult to foresee. Does the trial judge's mere failure to address the question of allied offenses require vacating the plea? Manus' case was made easier by the fact that the offenses clearly should have merged, but that's not dispositive: even if the offenses weren't allied, a defendant could argue that his plea wasn't knowing and intelligent because he wasn't told that. That's a probably a stretch, but it does appear that the judge has to make such a determination before accepting the plea.
What's more, it substantially increases the consequences if the judge gets it wrong on that issue. Up to this point, doing so simply meant that the case would be remanded, and the State would decide whether to have the defendant sentenced on Offense A or Offense B. Now, at least if the defendant raises that issue on appeal, he could wind up with the entire plea being vacated.