One of Them Will Be Decided (Partially?) Tomorrow
by: Ryan • October 29, 2013 • no comments
The evolution of merger law over the past 6-7 years has been largely beneficial for defendants. There aren't many big questions left. I am including in the "undecided" category those merger decisions that were decided ten or twenty years ago, which may very well be in doubt now. For example, I think MCS and PCS could merge, especially if argued correctly, though there is very thin case law against us from a long time ago. DCS and MCS merge, in my opinion, though I don't believe there's a case on point. Again, winning at the COA may depend on framing the issue correctly. For DCS and MCS, the proper framing is this, I think: both charges are from the same statutory provision and therefore merge, despite different elements. It's that simple, but a full explanation requires an analysis of what constitutes "same statutory provision," a somewhat complicated question. But that question is the one that has -- for the most part -- been answered favorably for defendants in other contexts.
Another big issue is whether DCS (substantial quantity) and PCS merge. The argument is that the allegation of "substantial quantity" is effectively an element of an aggravated form of DCS, and therefore PCS is a lesser-included. A variation of this issue was raised in St v. Cam earlier this year, but rejected as unpreserved.
Another variation involves the element of "use or threatened use of a firearm," aka the gun minimum. If attached to a Felon in Possession, does it create an aggravated offense for which the crime of "unlawful use of a weapon" is a lesser-included? That question will be answered tomorrow by the Court of Appeals in a case called St v. Flores.
I hope Mr. Flores wins, but it may not be an entirely bad decision if he loses. It all depends on why he loses. There's a tricky issue involving separate victims that could defeat merger, but might not apply in other combination of charges that have essentially the same issue. In fact, if that were the only reason he lost, it might bode well for the DCS (substantial quantity) and PCS merger argument I suggest above. (Same victim -- the state -- for both DCS and PCS.)
Updated: the Court of Appeals ordered the two counts merged. Good opinion, good result.
Anyway, we'll know tomorrow morning.
