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The post-Rance era

Your client is caught in a simple buy/bust operation:  he sold twenty bucks of crack to an undercover agent.  Three years ago, this could have netted him a conviction on three separate charges:  sale of drugs, preparation for sale, and possession.  Three months ago it would have resulted in two:  sale and possession.  Does it now result in just a single conviction?

That question lingers because of the Supreme Court's decision two years ago in State v. Cabrales, its first attempt at patching up the "abstract elements" test for allied offenses it had announced nine years earlier in State v. Rance.  While Cabrales agreed that the sale and possession didn't merge --  one could offer to sell drugs (the statute prohibits offers as well as consummated sales) without possessing them and could possess drugs without selling them  -- but concluded that one could not prepare drugs for sale without actually possessing them.  Keep in mind that this was not an open-and-shut case:  although the 1st District had reached the same result, the court agreed to accept it on a conflict because numerous other districts had come to the opposite conclusion.

When the court overruled Rance two months ago in State v. Johnson, it didn't overrule Cabrales, but it's hard to see how the Cabrales analysis survives Johnson's determination that the defendant's conduct is the focus of the determination of whether two offenses are allied.  All three charges resulted from a single act, the sale of the drugs to the agent; parsing that single act into separate offenses is impossible, and runs directly contrary to Johnson.

That brings up the question of what other decisions survived Johnson.  It's tempting to think that Johnson simply restores the situation to the status quo ante, and it's as though Rance never existed.  The problem is that, as Johnson acknowledges, the court spent the better part of two years trying to rescue Rance, and in doing so issued several other decisions.  Chief among them was State v. Brown (discussed here), a case where the defendant was convicted of two counts of felonious assault, one under each of the two subsections of the statute:  causing serious physical harm and using a deadly weapon.  Under Rance they would not be allied, but the court held that the Rance analysis wasn't necessary when the legislature's intent to punish only a single offense was clear.  

Many courts took from Brown that the societal interests sought to protected by the legislature had to be considered in the allied offense analysis, even though Brown never used the word "societal."   In fact, that was the basis for the 1st District's decision in Johnson:  it compared "the unique societal interest protected by the child-endangering statute to the societal interest protected by the felony-murder statute, which is to protect all human life," and concluded that "the General Assembly intended to distinguish these offenses and to permit separate punishments for the commission of these two crimes."

Given that the Supreme Court directly reversed that determination in Johnson, it likely buried the "societal interest" test as well.  Although, as noted, it's not clear that the court intended it to apply to anything other than a statute which defined different means of commission, the result was appellate courts conjuring up what they imagined the interests the legislature found important, in the absence of any legislative record to support it.

The superiority of Johnson's simpler approach is displayed by the 12th District's decision last week in State v. Craycraft.  Craycraft had been charged with abusing his two infant children, resulting in separate convictions for felonious assault, 2nd-degree felony child endangering, 3rd degree felony child endangering, and domestic violence, and a sentence of 22years.  The 12th District originally rejected the claim that the offenses were allied, but the Supreme Court reversed and remanded the case for consideration in light of Johnson.  The 12th District noted that under Johnson, the first question is whether it is possible to commit the two offenses with the same conduct.  If so, the offenses are allied, and the question then turns to animus:  did the defendant commit the two offenses with the same conduct? 

The first question was easily resolved.  All of the statutes involved harm, albeit in different forms (3rd degree felony child endangering, for example, involves harm resulting from an act of omission -- violating a duty of care -- rather than an act of commission) or with additional factors (domestic violence requires commission against a family member), but all can be committed by a single act.  Thus, they are allied offenses, and the only remaining question is whether they were committed by the same act.

Here, Craycraft offers a cautionary lesson for prosecutors.  The case was obviously tried well before Johnson, and the prosecution made no attempt to fit the particular instances of conduct to particular offenses.  It had no need to; under Rance, the separate convictions would stand on their own anyway.  Not so under Johnson:

none of the injuries sustained by the twins were explicitly linked to separate counts in the indictments. Rather, the state relied upon the same conduct to prove the offenses of felonious assault, second and third-degree child endangering, and domestic violence.

While Craycraft could still be convicted and sentenced for two sets of each of the offenses -- there were two victims, and therefore a separate animus for each -- the disparate offenses merged, and Craycraft could be sentenced on only one offense for each victim.

The result in Craycraft demonstrates that while allied offense analysis is driven by double jeopardy considerations, the two are not identical.  There are a host of decisions holding that felonious assault and domestic violence are not the same offense for double jeopardy purposes, nor is the latter a lesser included offense of the former, since each requires proof of an element that the other does not (serious physical harm or use of a deadly weapon for felonious assault, family member for domestic violence).  Theoretically, one could plead guilty to misdemeanor domestic violence in municipal court, then be charged and convicted of felonious assault in the same matter in common pleas court, and both convictions, and sentences, would stand; yet under Johnson, if both charges were brought in the same proceeding, any resultant convictions would merge.

It's a brand new world.


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