For the first time in 7 years, the COA cites Mallory in an opinion
by: Ryan • April 2, 2014 • no comments
If you've got a client charged with multiple non-Measure 11 felonies, and there is some ambiguity whether the crimes arise out of one criminal episode or not, you'd think Mallory is the best case out there. If the judge, at sentencing, is arguing separate criminal episodes to increase your client's sentence, you may be able to rely on Mallory to dramatically reduce the maximum the judge can give.
The Mallory opinion was issued in 2007. It was slightly ambiguous, which may account for why it's not widely known. The defendant lost. But the language was great. Nevertheless, not a single subsequent appellate case cited it for 7 years, until today.
Alas, the argument that Mallory suggested (that a finding of separate criminal episodes is a Blakely factor in some circumstances), the one defense attorneys should be making on a semi-regular basis? We're still in limbo. The court declared as to today's defendant the issue was moot.
Mallory was the subject of the fourth post I did for Library of Defense, in October, 2010. My first five posts were all about criminal episodes. That post is here.
If you have forgotten what Mallory was all about, or you didn't start defending felonies until after 2010, check out the post. One of these days the COA will finally decide what could be a great issue for the defense.
