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What you need to know about gun specs

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You're probably going to learn something today.  A lot of lawyers, judges, and prosecutors don't know it.  Considering it can add three or more years to a defendant's sentence, it's something that you better know.

Your client Darnell takes offense from some imagind slight -- the driver of a passing car looked at him cross-eyed -- and decides to avenge the grievance by emptying a clip into the offending vehicle, which happens to be carrying three other people.  Darnell, being  long on pride but short on brains, is immediately apprehended and charged with four counts of attempted murder, all with three- and five-year gun specs.  The five is for shooting out of a car, and has to run consecutive to the underlying offenses and three-year specs, so you figured you've accomplished quite a lot to get the five-year specs dropped and the charges knocked down to four counts of felonious assault.  Darnell doesn't have a bad record, you've got a decent judge, and yes, you've still got the three-year gun specs, but as you explain to Darnell, they all merge because they arise from the same transaction.  You figure Darnell will get the middle range on an F2, about five years, plus three for the gun.  Considering what he was looking at before you walked in the door, eight years is a major accomplishment.

So you're a little non-plussed when the judge gives him the five years, then tacks on another twelve for the specs.

RC 2929.14, which provides the prison penalties for crimes in Ohio, has been amended 36 times since it was passed in 1996.  Some are of major significance, like those enacted as part of HB 86 in 2011.  Most of them aren't; they just clean up some language, or maybe tinker with this little thing or the other.

In one of the four amendments to the statute in 2008, the legislature slipped in 2929.14(B)(1)(g), which provides:

If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape blah blah blah, drone drone drone.

Okay, here's what it means in plain English:  if your client gets convicted of two or more of offenses above, and each has a firearm spec, the specs on the first two counts run consecutively to each other, and to the underlying crime.  Has to.  No way around it.  And the judge has the discretion to run any additional gun specs consecutively as well.

I didn't get the memo about this.  Neither did a lot of other people.  I had a case a couple years back where my guy was hit with four counts of felonious assault with 3-year specs.  His convictions got affirmed by a 2-1 vote because the one judge in the majority had never seen, let alone presided over or participated in, a felony trial.  (Not that I'm bitter or anything.)  In any event, the judge ran all the specs concurrent, and nobody said a word.  Including me; I had no idea.

This substantially changes the nature of the plea bargaining in this type of case.  First, figure out if it's applicable.  If, say, you've got a kidnapping/aggravated robbery/felonious assault because your guy pistol-whipped the victim,  then those offenses merge, and there's case law that the gun specs merge with them.  If you've got a multiple victim case, it is; the law's clear that there's a separate animus for each victim, so there's no allied offense issue.  But otherwise check to see which offenses are allied. 

If you've got a case where the underlying offenses aren't going to merge, like where there are multiple victims, recognize that the gun specs now become perhaps the most significant piece in plea bargaining, simply because it's definable:  it's three years.  Getting the charges reduced from a first degree to a second degree felony might knock a year or two off your client's sentence.  If you get every gun spec beside the first dropped, you've saved your client three years. 

But what if you're not sure that the prosecutor and the judge know about this?  Do you bring it up?  The concern you have here is what I mentioned earlier:  it turns out that the judge does know the law, and you stand there as he hammers your client with more time than you told your client he could.  Or worse, somebody catches that after the plea and the prosecution takes it up, with a slam dunk in their grasp:  after all, the judge has to impose the second gun spec consecutively to the first.  If he doesn't, the sentence is contrary to law.

But here's an out to that.  There's abundant case law to the effect that a judge doesn't have to advise a defendant of the possibility of consecutive sentences.  But there's an exception to that:  where the consecutive sentence is mandatory, as, for example, with the failure to comply statute; the law specifies that any prison sentence for that offense has to be consecutively to any other, and the 8th District found in this case that the plea had to be vacated where the judge didn't tell the defendant about that.  (This case has a nice collection of decisions - check paragraph 35 - where other districts have come to the same conclusion.)  Well, if consecutive sentences for gun specs are mandatory, that means that information has to be included in the plea, and if it isn't, the plea's not valid.

Regardless of how you approach this, this is something you need to know.  Now you do.

   *   *   *   *   *

Have a good holiday.  See you back here on Monday.

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