Merger of Allied Offenses can save the day.

In 2010, the Ohio Supreme Court revisited the definition and application of the allied offenses concept. In State v. Johnson, 2010-Ohio-6314, the Court reviewed the prior law from State v. Rance (1999), 85 Ohio St.3d 632, and concluded that the Rance standard was unworkable. The concept of "allied offenses of similar import" has its origins in the concept of merger and is codified in R.C. 2941.25. Do not underestimate its importance as the concept is designed to protect against a Double Jeopardy violation where a person is sentenced twice for what is in essence the same offense.

The Court went on to expressly overrule Rance. Impressively, the Court explained that the broad purpose of the allied offenses concept "ought not be watered down with artificial and academic equivocation regarding the similarities of the crimes. When 'in substance and effect but one offense has been committed,' the defendant may be convicted of only one offense." Id. para. 43. With that, here is precisely the test adopted by the Court:

[T]he question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.

If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., Aa single act, committed with a single state of mind.@ * * *

If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.

In addition to looking at the elements of the charges themselves, applying this Johnson test to the indicted offenses is critical to any defense preparation or plea negotiations.  If you fail to apply this test during plea negotiations, you and your client may accept a fools bargain.  Moreover, if you are planning a trial strategy, you may legitimately design a defense that leaves the Court with the conclusion that it is duty bound to merge any guilty counts. 

Although Johnson was a 2010 case, most courts of appeals have looked at it a few times.  Watch carefully in that your allied offenses analysis can fail if there is strong contextual evidence supporting a separate animus for each charge.  Black's Law defines animus as generally intention, design, or will and the Ohio Supreme Court has interpreted animus "to mean >purpose or, more properly, immediate motive,= and infers animus from the surrounding circumstances.@ State v. Shields, 2011BOhioB1912, & 16, quoting State v. Logan (1979), 60 Ohio St.2d 126, 131.  Animus is just a terrible term to use in the criminal context as the whole of criminal law and the underlying offenses themselves speak to intend and purpose.  There really is no remarkable case law providing any real guidance on the animus aspect of the analysis although it has been described as "[w]here an individual's immediate motive involves the commission of one offense, but in the course of committing that crime he must, A priori, [sic] commit another, then he may well possess but a single animus, and in that event may be convicted of only one crime.@ State v. Beverly, 2013‑Ohio‑1365.

Your Silence Can Be Used Against You.

I could swear I heard somewhere that a defendant has a right to remain silent and that the state cannot comment on the silence at trial. I could be wrong, but I swear I heard it somewhere.

On June 17, 2013, in Salinas v. Texas, the United States Supreme Court clarified for me. It held that the state could use at trial a defendant's failure to answer some questions where the defendant was not yet in custody and had answered some questions but refused to answer others. We know that the relevant provision in the Fifth Amendment reads that a defendant shall not "be compelled in any criminal case to be a witness against himself [.]" Prior to being in custody or Mirandized, Salinas answered some questions from police. When asked about ballistics testing, he remained silent. Texas argued at trial that this was evidence of guilt. Salinas argued that the comment violated his Fifth Amendment privilege not to be compelled to be a witness against himself.

Ultimately, the United States Supreme Court rejected this argument. The case is interesting in that the Court took the case to decide the question of the prosecution may use during its case-in-chief a defendant's assertion of the right to remain silent during a non-custodial interrogation. The Court though did not answer that question because it concluded that the Salinas had not invoked his privilege during the interrogation. (2013), 133 S.Ct. 2174. (Yep, mere silence is not enough to invoke the right to remain silent.)

The Court looked first at what it described as the long held opinion that those who desire the protection of the privilege, must claim it. Id. at 2179. The Court reasoned that this was necessary to ensure that the government is "put on notice when a witness intends to rely on the privilege[.]" (Nope, not answering a question is not enough notice.) In short and clear language, the Court held that "[b]efore petitioner could rely on the privilege against self-incrimination, he was required to invoke it."

Salinas is certainly complicated case law for criminal defense. Interesting though, remember that Salinas was not subject to a custodial interrogation. That is a critical fact that cannot be ignored.

You Can't Beg Yourself to a Better Sentence.

Too often overlooked by defense lawyers is the client’s right to effective assistance of counsel at the sentencing stage.  Too many defense lawyers also fail to recognize how an evaluation of sentencing is an essential component of effective assistance during the pretrial and plea negotiations.  See U.S. v. Pinkney, 551 F.2d 1241, 1248 (1976).  The Pinkney opinion explained that “the first step toward assuring proper protection for the rights to which defendants are entitled at sentencing is recognition by defense counsel that this may well be the most import part of the entire proceeding.”  Id. at 1249.

The performance and effectiveness of attorneys in criminal cases will often be judged against the American Bar Association Standards for the Defense Function.  The commentary to Standard 18-5.17 speaks to the measures of an appropriate sentencing.  Of significance, the commentary points out the obvious: “Contested proceedings as to guilt occur in a fraction of criminal prosecutions, but sentencing is an issue in every case.”  Id.  Standard 4-4.1 directs that defense counsel be prepared to address sentencing mitigation at the plea negotiation stage.  The reasoning of the commentary is quite compelling:

                “The lawyer has a substantial and important role in to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing.  This cannot effectively be done on the basis of broad general emotional appeals or on the strength of the statements made to the lawyer by the defendant.  Information concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant, as will mitigating circumstances surrounding the commission of the offense itself.”

The point being, that too many lawyers overlook sentencing preparation entirely.  And, where a client needs to be protected by negotiating a plea arrangement, the defense attorney needs to be preparing for sentencing from the outset of the case.  As the ABA commentary indicates, too many lawyers rely on nothing more than “general emotional appeals.”  Simply stated, you can’t beg your client to a better sentence.  And, the right to effective assistance of counsel applies to sentencing hearings, and hence, not preparing appropriately for sentencing as well as trial may lead to ineffective assistance of counsel claims.