Are we going to start seeing a rash of appellate opinions on criminal episodes?
by: Ryan • November 17, 2013 • no comments
As I have noted before, a finding of separate criminal episodes -- or a failure to so find -- does not impact sentences as much as the drafters of the felony sentencing guidelines would have expected, in large part because of M11 and other sentencing rules that make separate criminal episodes less relevant.
But in the right cases, such a finding can still have a big impact on a defendant's sentence, particularly if the crimes he or she is accused of aren't M11 crimes but carry a crime seriousness more than 4. Thus, crimes like encouraging child sexual abuse is one where a finding of separate criminal episodes can make the difference between a small amount of prison time and decades.
This month, we had two notable appellate discussions of separate criminal episodes. The first was the concurrence by Judge Walters in State v Campbell, the review of which was dismissed as improvidently granted. Though she agreed with the dismissal, it was obvious that she was encouraging the court to revisit the issue and perhaps clarify, broadly, what constitutes a criminal episode.
Then last Thursday, the Court of Appeals issued State v. Burns, which hinged on whether a father's severe punishment of two of his children, imposed consecutively, constituted one or two criminal episodes. There was, moreover, a passionate dissent from Judge Edmonds (pardon the redundancy).
I know of a couple of cases in the pipelines, where the defendants lost improper joinder demurrers. (Yes, some defendants have actually lost the demurrer, although I think more have prevailed.) The appellate review in some cases might require analyzing the criminal episode issue, depending on how the court approaches the analysis.
There are also cases related to ECSA sentences that have gone up.
And we can assume there are other cases where one of the issues on appeal involve separate criminal episodes.
With luck, we will see a reevaluation of the analysis as favorable to defendants as we did with merger law. These things tend to go in waves. We had few kidnapping decisions for twenty years, then we had a number of good ones at the Supreme Court. In a few month period, we had three Equal Privileges opinions at the COA, one of which was great (albeit short-lived, once the OSC reviewed).
In a later past, I'll list what I think are the big open issues in criminal episode case law. Now's the time to get on the bus.
