One doesn't have to delve too deeply into the law of criminal episodes to realize that it isn't always obvious whether or not two crimes arise from the same criminal episode. My goal in this series of essays has been to provide some of the best arguments defense attorneys can use to persuade a judge that there has been only one criminal episode, even though the state is arguing that there have been two or more. I hope I've convinced you that there is a significant body of defense-favorable case law that is yours for the taking.
But you won't always be making your argument to a judge because often, a finding of separate criminal episodes must be made by a jury. The United States Constitution, specifically the right to a jury trial, requires a jury decision on criminal episodes where there are overlapping dates in the indictment. As the Oregon Court of Appeals stated:
The conclusion of "separateness" is a traditional factor considered by a court at sentencing that does not implicate the requirements of Apprendi and Blakely, unless it requires factfinding beyond a determination of what is in the court records. See Harris, 447 F.3d at 1304-06.
State v. Mallory, 213 Or App 392, 405 (2007)[Emphasis added.]
Keep in mind that police reports are not "court records." Neither is witness testimony. What the COA is talking about is, for example, the plea petition (depending on the admissions of the defendant) or, more often, the indictment. What the Mallory court concluded is that a finding of separate criminal episodes is not a jury question if there are non-overlapping dates in each count. If the dates in each count overlap then it becomes a jury question.
With respect to six of the seven offenses at issue, defendant admitted committing the offenses on different dates from the offense in Count 9, which defendant admitted committing "on or between November 1, 2003, and November 30, 2003." By admitting that those six offenses occurred on different dates from the offense alleged in Count 9-each more than 30 days apart from the date range alleged in Count 9-defendant admitted sufficient facts to establish that those offenses involved separate criminal episodes from count 9. See, e.g., State v. Koch, 169 Or App. 223, 226, 7 P3d 769 (2000) (offenses occurring on different dates did not arise from the same criminal episode for purposes of imposing consecutive sentences); State v. Smith, 95 Or App. 683, 687, 770 P.2d 950, rev den, 308 Or 158, 776 P.2d 859 (1989) (offenses committed on different dates did not arise from the same criminal episode for purposes of double jeopardy protection). With respect to the seventh offense, Count 20, charging identity theft, the indictment alleged a date range-"on or between August 1, 2003, and February 24, 2004?-that overlapped the date range for Count 9. 6 However, assuming without deciding that Count 9 could not qualify as a "prior" offense to Count 20 because there was no constitutionally adequate record to demonstrate that those offenses arose from separate criminal episodes, any error was harmless, because defendant's sentence on that count was imposed concurrently with all other repeat property offender sentences that the court imposed.
Mallory at 405-406. [Emphasis added.]
Because the holding in Mallory (which is consistent with federal case law) shares a superficial similarity with State v. Ice, 343 Ore. 248, 170 P.3d 1049 (2007), reversed on other grounds, Oregon v. Ice, 555 US __ , 129 S Ct 711, 172 L Ed 2d 517 (2009), the prosecutor's initial reaction may be that Mallory, like State v. Ice, is no longer good law.
In fact, Mallory was written before State v. Ice was issued, and the COA - at the time of Mallory - had already agreed with the state's position regarding who makes the findings necessary for consecutive sentences. State v. Tanner, 210 Or App 70, 150 P3d 31 (2006). All Oregon v. Ice did was to return the law to the status quo that existed when Mallory was decided. Therefore, nothing about Ice being overturned undermines the Mallory analysis.
How would the Mallory opinion work in practice?
Take the following hypothetical, based partially on a real case out of Multnomah County. A defendant is driving a vehicle, which is stopped. He runs fleeing from the vehicle and fires wildly at the police as he's running, hitting no one. Inside the vehicle, the police find enough methamphetamine to charge him with delivery of a controlled substance. He is also charged, in the same indictment, with attempted murder and attempted assault in the first degree. The jury acquits of attempted murder but convicts of attempted assault.
If the DCS and the attempted assault arise from the same criminal episode, the defendant is looking at less prison time - at least a year less - than if they arise from separate criminal episodes, not only because of the shift-to-I rule, but perhaps the 200% rule as well. Thus, the state is required - absent a waiver of the jury trial right - to ask the jury to make a finding that those two offenses arose from separate criminal episodes.
If the prosecutor does not ask the jury, the two crimes - both alleged to have occurred on the same day - are presumptively from the same criminal episode, and the judge does not have the power to conclude otherwise. The defendant need not do anything until sentencing, at which point he or she must alert the court that the two crimes arise from one criminal episode as a matter of law.
Very few defense attorneys understand this, and as a result, prosecutors are routinely getting away without asking for jury findings on separate criminal episodes. But this just means that prosecutors have gotten complacent, providing an advantage to the knowledgeable and aggressive defense attorney. Even prosecutors reading this essay are unlikely to present the issue to a jury unless and until a judge tells them they should have.
What if the prosecutor does seek a jury-finding of separate criminal episodes? It won't be easy. The complexity of the case law - and its inconsistency - would make drafting an accurate jury instruction extremely difficult. And the legal arguments I've raised could still be presented to the judge at the time of the motion for judgment of acquittal.
Mallory is not without problems, however. It cites a few opinions for the conclusion that separate dates in the indictment translate into separate criminal episodes. I've previously cited case law that holds to the contrary. See State v. Cantrell, 223 Or App 9, 195 P3d 451 (2008) (firearm possessed on one day part of same criminal episode as events involving firearm two weeks later); State v. Lyons, 161 Or App 355 (1999)(recognizing that the crimes were not obviously part of a "single transaction," the court nevertheless found earlier predicate acts to be part of the same criminal episode as subsequent racketeering charge); State v. Schwartz, 173 Or App 301, rev denied, 333 Or 162 (2001) (implicitly finding one criminal episode for computer crimes which were committed weeks apart, but refusing to merge counts because there was a sufficient pause between the two offenses to prohibit merger.)
This issue is one the courts will work out eventually, as long as defense attorneys raise issues surrounding both criminal episodes generally, and the jury-finding requirement specifically. But the gap between the defense-favorable case law and the practice of most defense attorneys is enormous, one of the reasons, most likely, that Mallory hasn't been cited since it was issued. If defense attorneys don't know to raise the issue, it will never get back to the Court of Appeals.