Counsel's role on allied offenses
On Tuesday,
I talked about the8th District's en banc decision
in State
v. Rivera, which held that it was plain error for a trial court to fail
to consider the issue of allied offenses at sentencing. This
raises an issue that I've been thinking about for a while: just what is a defense attorney's obligation at
a sentencing hearing? (Not the only
issue I've given thought to; I've also pondered the great philosophical questions,
like whether Anthony Weiner's emailing pictures of the maleness of his anatomy
to various women is some sort of cosmic joke.)
Anyway, on to more important things. There you are, standing next to your client
at the hearing. You are not a mere
potted plant, you tell yourself in your best Brendan Sullivan
impersonation. (Hey, look it up. That's why God invented Google.) What is
your purpose? A couple of issues:
Rivera, as noted,
holds that you don't have any obligation to raise the issue of allied
offenses. Should you?
There are a couple of considerations here. First, the issue is almost certainly going to
be resolved by the Ohio Supreme Court; the 8th District certified a conflict
with the 6th District, and further conflicts are emerging. The Rivera
decision was based on the argument that the Supreme Court has held that
sentencing on offenses which should have merged, even if the sentences are run
concurrently, is plain error. The lone dissent
in Rivera contended that the prerequisite
for finding "plain error" is that an error actually have occurred, and where
there's nothing in the record one way or the other to indicate whether the
offenses might have been allied, that prerequisite hasn't been met. Frankly, I think the dissent has a point, and
the 2nd District came to the same conclusion in a
decision last week. Bottom
line? I think there's a decent chance Rivera gets reversed. There's no telling when that might come down,
but if you rely on that, you could find yourself -- rather, your client -- getting
caught when the window shuts.
That's not to say there's no value in keeping silent. As it stands now, at least in the 8th, if
there's a colorable claim that the offenses are allied, the case is going to
get reversed. And "colorable" is very
broad here. The Supreme Court's decision
three years ago in State v. Johnson
announced a two-step analysis for allied offenses: could the
two offenses have been committed with the same conduct, and were they? Basically, the 8th's jurisprudence on this
issue means that the case is going to be reversed anytime the first step is
satisfied. Aggravated burglary and
aggravated robbery? Well, yes, there are
circumstances under which those offenses could
be committed with the same conduct.
There may be occasions when the facts in the record are enough for the appellate
court to conclude that they weren't committed with the same conduct in this
particular circumstance, but for the most part, the fewer facts, the more likely
the case is to be remanded.
Does that help your client?
Possibly. Keep in mind that the
remand is limited to the question of whether the offenses should merge; if
there are other offenses besides those, they're not affected by the
remand. If your client gets six years
for rape, six for kidnapping, and six for aggravated robbery, the court might
remand the rape and kidnapping for merger, but the sentence for the aggravated
robbery is going to be unaffected by that.
Your client is entitled, though, to a de novo resentencing on the kidnapping and rape, and you might be
able to talk the judge into a lesser sentence on those.
Whether he'll do that is another story, and I'm not sure
whether the game is worth the candle. It
makes more sense to make the arguments in support of merger at the trial court
level. The only real downside to that is
that it will force the prosecutor to make arguments, and present evidence,
showing that the offenses don't merge, and that's where you'd in all likelihood
eventually wind up anyway. One more
point here, and it's one that's made in the Rivera
decision: there's really no excuse
for the parties to appear at sentencing without having given any thought to whether
the offenses are allied, even to the point of including a determination of that
as part of a plea bargain. In fact,
there's no excuse for a defense attorney entering in a plea bargain without
having given that thought full consideration.
If the offenses aren't merged, that means your client is exposed to
consecutive sentences, and if you're exposing your client to that
unnecessarily, you really shouldn't be doing this kind of work.
Comments