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Two on allied offenses

In Cuyahoga County, the individual floor prosecutors don't have the authority to make a plea bargain.  They have to take it to a supervisor for a "mark" on what plea they're allowed to offer.

You can bet the supervisors are going to get a memo about the 8th District's decision in State v. Esper.

Esper shook his four-month old son, and was charged with felonious assault and two counts of child endangering, one under RC 2919.22(A), violating a duty of care, the other under RC 2919.22(B)(1), abusing a child.  The former is a third-degree felony, the latter a second-degree felony if it results in serious physical harm. 

Esper pled to the felonious assault and the second child endangering count, with the State dismissing the first child endangering count.  After hearing arguments, the trial court decided the two offenses were committed with a separate animus, and gave him eight years on the felonious assault and three years on the child endangering, run consecutively.

Notice the problem?  Basically, the two offenses Esper pled to charged the exact same conduct:  causing serious physical harm to his child.  That means they merge.  As the majority points out, had Esper pled to the count alleging a violation of a duty of care, they wouldn't have merged.  That count was based on Esper not seeking medical treatment for the child for seven days, and would've constituted separate conduct. 

My guess is that the prosecutor's office figured they wanted Esper to plead to two second-degree felonies, and didn't thoroughly consider the allied offense problem.  You can bet they will from here on out.

When they do, they should also take a look at last week's decision in State v. McKinney

We interrupt this program to give you a brief update on the law of allied offenses.  When I started this blog, the key case was State v. Rance, which held that in deciding whether two offenses were allied, you looked at the elements in the abstract, without considering the facts; if each offense had an element that the other did not, they weren't allied.  This was simple, but stupid, as even the court recognized, and Rance met its demise in 2010 in State v. Johnson, in which the majority held if the defendant committed the two offenses with the same conduct, the offenses were allied.

But Johnson was only a plurality decision, and was effectively buried by pair of 2015 decisions, State v. Ruff and State v. Earley.  Those cases essentially declared that in deciding whether offenses were allied, the key was in determining whether the offenses caused "separate, identifiable harms."

That's what the State tried to hang its hat on in McKinney.  McKinney had been on house arrest, and cut off his ankle bracelet.  He was charged with two crimes:  disrupting public service and criminal damaging.  The State argued that each had caused a separate harm:  he'd damaged the bracelet, and his cutting it off prevented the police from tracking him.  (One section of the offense of disrupting public services prohibits interrupting or impairing police communications.) 

This argument fairly tracks Ruff and Earley.  The latter had held that aggravated vehicular homicide and OVI didn't merge because there "is a legitimate justification for criminalizing each of those offenses separately."  At the time, I criticized the decisions for

focusing on whether different related offenses have different punishments.  They usually do.  That's why they're different offenses.

The opinion in McKinney comes to pretty much the same conclusion:

[The State's] approach could lead to an absurd result where any identifiable effect, consequence, or by-product of criminal conduct, no matter how remote, would suffice to justify separate convictions. The practice of categorizing all possible consequences, ramifications or by-products of criminal conduct into separately punishable harms could result in almost no offenses ever merging under the Ruff analysis. There would always be some identifiable harm that could be identified to justify separate convictions.

The court concludes that "the two claimed harms, the damaged property and the impaired communications, are necessarily intertwined and do not exist as independent 'harms' for purposes of authorizing separate convictions."  They merge.

So two good cases on allied offenses, by the same court and in the same week.  That's some cause for celebration, because that's two more good cases on the subject than the Supreme Court has come up with lately.

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