Does today's Flores opinion support merging DCS (substantial quantity) and PCS?
by: Ryan • October 30, 2013 • no comments
Here's the quickie argument why today's opinion in State v. Flores would support an argument that DCS (substantial quantities) and PCS would merge.
In Flores, two charges that otherwise wouldn't have merged did in fact merge because adding the gun minimum language created an aggravated version of felon in possession, and unlawful use of a weapon was now a lesser-included offense. The COA rejected the state's argument that the gun minimum ("use or threatened use of a firearm") was merely a sentence enhancement and not an element.
So let's assume your client is found guilty -- after trial -- of DCS--meth (substantial quantities) and PCS (meth). Every allegation contained in the charge of Possession of methamphetamine is also alleged in Delivery of Methamphetamine (possession of substantial quantities of meth). Given how the state has aggravated the DCS by including an allegation of substantial quantities, the DCS count explicitly alleges possession of meth, just like Felon in Possession of a Firearm with a Firearm explicitly alleges use or threatened use of a firearm.
A crime is a lesser-included offense of another crime as a matter of law if either of two circumstances exist: "(1) the elements of the lesser offense necessarily are included in the greater offense because the elements of the former are subsumed in the latter; or (2) all of the elements of the lesser offense are expressly set forth in the accusatory instrument." State v. Lee, 174 Or App 119, 125, 23 P3d 999, rev den, 332 Or 559 (2001).
In sum: all of the elements of PCS are contained in DCS (substantial quantity), and therefore they merge into a single conviction as a matter of law.
The state will insist Flores is different, because the COA -- rejecting the state's argument -- found that the "use or threatened use of a firearm" was not just a sentence enhancement but it was also an element of the offense. (The state's position will essentially be: okay, fine, we were wrong in Flores when we said the gun minimum was not an element but we're really right this time.) In support of the state's argument, they would undoubtedly point out that the gun minimum statute says explicitly it's an element. That is not true for the substantial quantity language. But the statutory language making the gun minimum an element became law only after the Oregon Supreme Court determined that, regardless of the legislative label, offense-specific aggravating factors were elements under Oregon law.
Here we have the Flores court quoting the Supreme Court in State v. Wedge:
- "Although the challenged statute is denominated an enhanced penalty statute, in effect it creates a new crime. The jury only considered evidence offered on the question of first degree robbery, and convicted him of that offense, but the defendant was sentenced on the basis of having been found guilty of the crime of 'first degree robbery using a firearm.' If the legislature had actually described the crime as 'first degree robbery using a firearm' the use of a firearm would certainly be an element and there would be no doubt defendant would have a right to a jury determination of guilt. The legislature cannot eliminate constitutional protections by separating and relabeling elements of a crime." Id. at 608.
For the exact same reason, the aggravator of "substantial quantities" is an element, regardless of the legislative label. The state might come back with State v. Reinke, but Reinke didn't overrule Wedge. It simply held that when it comes to elements that must be pled in the indictment, in that situation the legislative does get to say what is or is not an element. It did not disturb the Wedge holding that offense-specific enhancements are elements when determining the right to a jury trial.
Certainly, today's Flores quote cites Wedge as good authority.
