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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.

I said there were a couple of considerations.  The other one is what to do on that very issue:  consecutive sentences.  That's a good bit thornier, and we'll talk about that next week.

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