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Allied Offenses and the Next Big Thing

Of the various career decisions I've made in my life, getting on the list for handling cases assigned to the mental health docket probably wasn't the best.  In the last two weeks, I (a) did a plea for a defendant who told the judge that one of his psychiatrists informed him that he had half a brain, (b) did a plea for a defendant from the Virgin Islands who referred to the judge as "your worship" in the answer to each question she asked him, and (c) ran a city block to chase down another client who'd walked out of court, to bring him back so he could be remanded in a probably vain attempt to restore him to competency.  The good thing about the last one is that I'm told it gives me a leg up in the application process the next time there's an opening on the Fugitive Task Force.

As I walked out of court after the last effort, I ran into my buddy John Martin, the elfin head of the county public defender's appellate division.  "Hey, Bensing!" he grinned, "That's a good-looking suit.  Didn't they have one in your size?"

We shook hands.  "Tell me, John, I keep forgetting.  Is it midgets or dwarves whose bodies are in proportion, like yours?"

The pleasantries out of the way, we got to talking shop.  In this case, his New Big Idea:  that a jury has to make the determination of whether two offenses are allied.

Some background.  There's a double jeopardy aspect to allied offenses; the double jeopardy clause "protects against multiple punishments for the same offense."  But the Supreme Court has held that this "serves principally as a restraint on courts and prosecutors," not on the legislature.  The (very) short version of this is that where the legislature clearly indicated an intent to impose cumulative punishments, the double jeopardy clause doesn't bar it.

Well, sort of good news here.  Not only has the Ohio legislature, for the most part, evinced no intent to impose cumulative punishments, they've evinced an intent not to, by virtue of the allied offense statute, 2941.25(A), which reads,

Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

That's a clear expression of legislative intent that cumulative punishments for allied offenses can't be imposed, unless, pursuant to 2941.25(B), the conduct resulted in the offenses being committed separately, or with a separate animus.

So what's an allied offense?  Since the statute was passed in 1974 (and it's probably the only criminal statute that's never been amended since then), the courts have adopted a two-step approach.  In the first step, you compare the elements of the crime, and in the second, you look at the facts to determine whether there's a separate animus. 

Most of the cases have focused on the first step:  determining whether the elements of the two offenses are sufficiently similar to make them allied.  Before State v. Rance was decided in 1999, the elements were compared with regard to the underlying facts of the offense.  Rance held that the elements had to be compared in the abstract.  That proved unworkable, and was abandoned last year in State v. Johnson.   That decision clearly compels the trial court to "determine prior to sentencing whether the offenses were committed by the same conduct."

If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.” 

It's tempting to think of the first step as being a legal issue and the second, determination of whether there's a separate animus, being  a factual issue.  That was certainly true under Rance -- after all, that analysis rejected any factual considerations -- but I'm not sure it's true under Johnson.  It's pretty clear that determining whether the offenses were committed with "a single act" entails a factual determination. 

And this is where Martin comes in:  if the determination of whether the offenses were allied is based on a factual finding -- whether it's commission by the same conduct, or separate animus -- under Blakely v. Washington, that determination has to be made by a jury. 


I'm not buying.  "Here's your problem.  The only effect of a determination that offenses aren't allied is that the judge can give you consecutive sentences.  But two years back the Court says in Oregon v. Ice that Blakely isn't implicated in that; if the legislature wants, it can require the judge to make findings of fact before imposing consecutive sentences, without violating Blakely.  So how do you get around that?"

"Simple.  In Ice, the guy'd been convicted by a jury of two offenses.  The judge had to decide whether to run the sentences concurrently or consecutively, and took Door No. 2, and Ice says there's no problem with that.  Here, though, there's a question of whether the guy's actually been convicted of two offenses.  If they're allied, there's only one conviction.  That should be up to the jury, not the judge, to determine.  In fact, you could even make the argument that this isn't a Blakely issue.  Blakely just deals with punishment.  This is a pure 6th Amendment jury trial issue.  A judge couldn't say, 'Well, you're charged with kidnapping and rape, and we'll have the jury determine whether you're guilty of the rape, and I'll determine whether you're guilty of the kidnapping.'  You're entitled to a jury trial on both."

I mulled it over.  I'd heard worse arguments.  Hell, I'd made worse arguments, probably that morning.  "So you think a jury can make the determination of whether there's a separate animus?"

"Sure.  Take a look at State v. LoganLays out all these factors for determining whether a rape is committed separate from a kidnapping -- whether the confinement's secretive or prolonged, whether the movement's substantial, that sort of stuff.  Why couldn't a jury make the same determination?"  I continued to mull.  "So, you think I got a shot?" he persisted.

I nodded, reluctantly.  "Yeah, you might have a shot."

He beamed.  "You're the first person who's told me that.  Gotta run." 

"You mean I'm the first person who hasn't told you you're nuts," I shouted after him.

He turned and shrugged.  "You say tomah-to, they say tomato."


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