What you need to know about gun specs
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.
Comments