The 8th looks at allied offenses
I've maintained that State v. Johnson, the Supreme Court's 2010 decision overruling State v. Rance, did not merely return allied offense law to the pre-Rance era. Confirmation of that comes from the 8th District decision last week in State v. Lacavera. Actually, the 8th handed down three decisions on allied offense law, and all of them are worth a look.
First up is State v. Lindsey, which deals with a procedural question. Lindsey had pled guilty to forgery and uttering, and now claims that the trial court should have merged the two. There's a basis for that claim. Forgery prohibits the creation of a false document, and uttering prohibits the transfer of the document, or possession with intent to transfer. Back in 1995, the 8th had held that the two merged if the defendant forges the document and either simultaneously transfers it or possesses it with the purpose to utter it.
Lindsey hadn't raised the allied offense issue at sentencing, so it's reviewed only for plain error. The trial court didn't address it, so there was nothing in the record to show the timing of the two offenses, making it impossible to determine whether they were committed "in a single act, with a single state of mind" as Johnson requires. In some districts, that case would be remanded for a determination by the trial court, but not here; the court won't find plain error
where a defendant, after entering a guilty plea, fails to raise the issue of merger of offenses at sentencing, the trial court fails to sua sponte conduct an allied offense analysis and the defendant has failed to offer any evidence to make an obvious case for plain error in the trial court's failure to merge counts.
Lindsey emphasizes how fact-sensitive allied offense analysis has become, and that's demonstrated further by State v. Wallace and State v. Lacavera, two cases with roughly similar fact situations. Wallace and some buddies went to the victim's house and, once inside, Wallace punched the victim in the mouth. The others tied the victim up in the dining room while Wallace, who'd apparently watched way too many episodes of 24, went into the kitchen, heated a knife over the stove, then returned to the living room and burned the victim's face in three places. (The opinion doesn't say whether this prompted the victim to reveal the location of the nuclear bomb that the terrorists had planted on the subway.)
The defendant in Lacavera -- or rather, his accomplice -- proved a similarly poor visitor. Lacavera decided to rob an elderly woman he knew, and enlisted a man named Williams to do the deed. Williams knocked on the woman's door and, when she opened it, forced the door open, shoved her up against a wall, then pushed her down the stairs.
For their depredations, Wallace plead guilty to kidnapping and felonious assault, while Lacavera was convicted of aggravated burglary, aggravated robbery, kidnapping, and felonious assault. Both contended, at sentencing and on appeal, that the offenses should have merged. (Actually, it's not clear that Lacavera did raise the issue in the lower court, but note here that the trial obviated the problem that arose in Lindsey: the appellate court had a complete accounting of the facts.)
So what to do? Let's tackle Wallace first: were the two offenses committed with a "single act and single state of mind," as Johnson requires? Defense counsel argued that the two were committed "simultaneously," but the court wasn't buying. It noted that Wallace first punched the victim, then told the others to tie him up and restrain him while Wallace went looking for a weapon. He then returned and burned the victim's face; thus, this was not a "'continuous' series of acts that occurred 'simultaneously.'"
The court is borrowing from previous law, which even Rance recognized, that a separate conviction for kidnapping is unsupportable where the restraint is merely incidental to the underlying offense. But here, "the felonious assault did not last the duration of the restraint, or vice versa, depending upon one's perspective." The bottom line is that in deciding whether a kidnapping offense merges with another, the Johnson analysis is irrelevant; in fact, the opinion never mentions Johnson. Instead, the analysis will be whether the kidnapping involves some additional restraint or harm separate from the underlying offense.
Johnson gets an extended workout, though, in Lacavera. The court treats the kidnapping conviction the same way that Wallace did, except in this case it does find that the kidnapping was merely incidental to the other offenses: "The victim's 'restraint of movement' was incidental to the robbery of her property and the serious physical harm Williams caused." The analysis of whether the aggravated robbery and the felonious assault merge, though, is rather sketchy: the court's treatment of this issue consists entirely of two sentences:
Williams committed the felonious assault when he knowingly caused serious physical harm to the victim by pushing her down her basement steps. He completed the offense of aggravated robbery when he then stole her property.
Well, that's true, but does that mean it was a single act? Couldn't one make the argument that the felonious assault was complete when Williams knocked the victim down the stairs and threatened her, and that his going back upstairs and rummaging through her purse was a separate act, and thus punishable as a separate crime?
The problem recurs with the court's treatment of the aggravated burglary conviction; again, it holds that this offense merged with the other three, because "Williams's breaking into the house and inflicting physical harm on the victim by pushing her down the stairs (and thus completing the aggravated burglary) occurred as part of the same transaction as the other crimes." Again, couldn't you say that burglary was completed when Williams broke into the house, and that the other events occurred subsequently, and were committed by separate acts? (In fact, that's precisely the result the 8th District came to in a case back in 1997.)
There's some basis for arguing that Johnson eliminated the examination of the elements of the crime that was required under Rance, and one now looks only at conduct. (Indeed, Johnson never mentions the word element.) Lacavera shows the fallacy of that approach, because when you look at the elements of the charged crimes, you see the overlap. All three offenses -- aggravated robbery, felonious assault, and aggravated burglary -- required a showing that the defendant caused serious physical harm to the victim. It was the single act of pushing the woman down the stairs that formed the basis for all three charges, and thus the offenses merged.
Now, whether this is the right conclusion, from a normative standpoint, might be another matter. It does lead to the anomalous result that a person who breaks into somebody's house, beats them, and robs them, is in no worse position than a person who accosts somebody on the street and beats and robs them; one might argue that the societal interest in protecting the sanctity of the home allows greater punishment for those who violate that.
But it's hard to fault the court in Lacavera for coming to that result; its analysis, from the standpoint of Johnson, seems spot-on.