Allied offenses: sifting through the record
Oh, for the good old days of State v. Rance. Sure, its test for allied offenses, as the Supreme Court later confessed, led to "inconsistent, unreasonable, and, at times, absurd results" -- and that came almost three years before the court overruled Rance in State v. Johnson -- but at least at the appellate level all you had to do was compare the elements of the crimes. Except in rare cases, you didn't have to mess around with the facts. If somebody decided to use his girlfriend's face as a punching bag, he could be convicted of both felonious assault and domestic violence because the elements didn't align: it was possible to commit one without committing the other. The End.
Johnson, by refocusing attention on the defendant's conduct, changed all that. Now, appellate courts have to parse the record to determine whether the crimes were committed with the same conduct, as the 8th District did last year in State v. Waltzer: the defendant had pushed his wife down on the porch, then followed her into the house, grabbed a knife, and cut her. The change in location and elevation of violence, the court held, was enough to allow conviction on two separate offenses.
But Waltzer came up on an appeal from a trial. What happens when the case comes up on a plea, especially where neither the judge nor the parties even raised the issue of allied offenses?
The defense's failure to raise the issue at the time of sentencing waives it and allows for review only of plain error, but that doesn't mean anything; back in State v. Yarbrough the Supreme Court held that sentencing a defendant on two offenses which should have merged, even if concurrent sentences are imposed, is plain error. That leaves the appellate court having to sort out what happened.
And that's not easy, as the 8th District recognized last week in State v. Baker, the opinion lamenting that "the record is nearly devoid of any facts." Baker was accused of raping his daughter over a period of time, and pled to three counts of rape and two of gross sexual imposition. He claimed for the first time on appeal that two of the rapes should have merged with the GSI's. The court notes that "Johnson ushered in a new era where trial courts are always required to delve into the factual underpinnings of the case in order to resolve the allied offense issue," and grimly sets out on that venture.
One way of handling the problem at the trial level is for the parties to stipulate whether the offenses merge, a procedure specifically sanctioned by the Supreme Court two years ago in State v. Underwood. The opinion in Baker makes an interesting point here: that such a stipulation
merely supplants an allied offense issue with an ineffective assistance of counsel one -- for mistakenly advising the defendant to agree to multiple sentences for a single crime. Without the facts of the defendant's conduct in the record, the reviewing court will be unable to resolve the ineffective assistance of counsel claim either.
My initial reaction was that an IAC claim would be a hard sell, especially in the context of a plea bargain; the state may legitimately offer a plea to reduced charges on the condition that they will be considered as separate offenses. But the opinion might have a point, in light of the Supreme Court's decisions earlier this year in Lafler v. Cooper and Missouri v. Frye. Those decisions (discussed here, here, here, and here) basically establish a right to effective assistance of counsel at the plea bargaining stage. If an attorney can be deemed ineffective for failing to properly advise his client on whether to plead because he misunderstood the law on homicide, as occurred in Cooper, it's not too difficult to envision a claim being made on the basis that the lawyer improperly stipulated to non-merger of the offenses because he misunderstood the law on allied offenses. In any event, Baker's caution that "the better course would be for the state to include in the record the facts of the defendant's conduct, satisfying the Johnson test, prior to sentencing" is worth heeding.
But woulda coulda shoulda aside, the court's still confronted with figuring out how to resolve the allied offense issue. That task is complicated by the fact that in the past year the 8th has come out with two contradictory decisions on that. In State v. Corrao, the defendant pled to seven counts of pandering sexually oriented material involving a minor and sixteen of illegal use of a minor in nudity-oriented material. The court found it impossible to determine whether any of the offenses were allied, found plain error in the trial court's failure to make any inquiry on that, and vacated those sentences and remanded the case back for determination of whether any of the offenses merged.
But earlier this year the 8th took a different approach in State v. Lindsey (discussed here). In that case, Lindsey had pled to forgery and uttering, and claimed on appeal that the two should have merged. Again, there was no way for the appellate court to determine that issue from the record, but instead of remanding for that determination, the court found that the defense's failure to offer any evidence on the issue in the trial court precluded a finding of plain error.
What to do? The Baker court decides to come down on the side of Corrao, and then waded into the issue of whether the offenses should have merged. It's a hard slog: the indictment alleged the same year-long span for the first 30 counts, including the two rapes and GSI's, with no distinction between them. As typical in this county, the bill of particulars was no help, since it contained the exact same language as the indictment, with the place where the offenses were supposed to have occurred thrown in. The parties and the court apparently tried to use the pre-sentence report to resolve the issue, but that didn't indicate what conduct aligned with which offenses. The court finally throws up its hands, finds that the trial court committed plain error in failing to address the issue, and, as it did in Corrao, vacates the sentences and remands for that determination.
Some lessons to take away from Baker
- If you're the trial judge, you've got to make sure there's enough in the record to allow the appellate court to determine whether the offenses should have merged. If you don't do it the first time, you're going to have another opportunity.
- If you're the prosecutor, treat the allied offense issue the same as you would a no contest plea: you've got to provide a factual basis for the court to make a determination. Stipulations are probably the preferred way to go, but as a supplement, not a substitute, to providing a factual record.
- If you're the defense attorney and you've got an allied offense issue, don't rely on Baker to absolve you of any responsibilities; you don't know if the next court's going to apply Lindsey and knock an appeal out of the box because you didn't present anything.
Of course, this raises another angle: was the attorney in Lindsey ineffective for not presenting evidence on the allied offense issue?
If one thing's certain in all this, it's that Baker's unlikely to be the last word on the subject.
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