Merger, Criminal History and 138.083 motions
by: Ryan • April 30, 2011 • no comments
I have often described the last few years of appellate law as reflecting a "quiet revolution in merger." Quiet, because merger is not a sexy topic and rarely will it change a person's life. Certainly I'd be surprised if the Oregonian ever had a story involving merger of counts into a single conviction.
And it's a "revolution", because. out of the dozens of opinions issued in the past 3-5 years, with just a couple of exceptions, the overwhelming majority have been favorable to defendants. It doesn't mean guilty defendants are being cut loose. It just means that the number of convictions they receive has started to better reflect the actual crimes they committed.
Obviously, however, there are a number of defendants whose convictions occurred before the revolution started, and who therefore have a criminal history that appears on paper far worse than it really should be. And it's not just a matter of appearances. It's inevitable that there are defendants who are burdened by more convictions than they should have as a matter of law.
The good news is this: Even if the appeal is long over, even if it's too late for PCR, even if probation has expired, the defendant can (probably) still get the error in his criminal history fixed. Therefore, a defendant who was convicted years ago of 5 counts of ID Theft, because he possessed five pieces of John Smith's ID, can ask the trial judge to merge all of those convictions into one, relying on ORS 138.083 as well as the case that says all those counts should have merged into one, St v. Mac Donald.
Will the defendant take the necessary steps to clean up his criminal history? It's not likely, because he probably doesn't know he can. Even if he knew that an unlawful sentence could be fixed years later, he's unlikely to be aware of the fact that his original judgment reflects what we now know are plain and obvious errors in law.
But let's say our hypothetical defendant is now charged with a new crime, and, based on his apparent criminal history, he's looking at a repeat property sentence under ORS 137.717. If his attorney is really exceptional - regardless of whether he's a private attorney or a public defender, exceptional lawyering does not necessarily correlate to income - that attorney will identify whether any of the prior convictions should have been merged. Sometimes it will be obvious. Does the defendant have a Forgery I and a Possession of a Forged Instrument from the same criminal episode? Probably should have merged under St v. Blake. Does the defendant have a theft by taking conviction and a theft by selling conviction for the same stolen property? Those too should have merged into just one conviction. And if they should have merged, the prior attorney can file a 138.083 motion on that case, reduce the number of convictions with the permission of the trial court, and save his no-longer-REPO client from going to prison.
I don't want to give the impression that merger mistakes are the only errors that can be fixed. Far from it.
In State v. Harding, 222 Or App 415 (2008), vacated on a technicality, 347 Or 368, 223 P3d 1029 (2009), the Oregon Court of Appeals found that the trial court had the ability to correct Blakely errors in a sentence, pursuant to ORS 138.083, even though the errors (some of the same Blakely errors as alleged above) were only evident in retrospect.
ORS 138.083(1)(a) provides:
"The sentencing court shall retain authority irrespective of any notice of appeal after entry of judgment of conviction to modify its judgment and sentence to correct any arithmetic or clerical errors or to delete or modify any erroneous term in the judgment. The court may correct the judgment either on the motion of one of the parties or on the court's own motion after written notice to all the parties."
The Harding court held:
Under the current state of the law, a departure sentence that is based on judicial findings of fact may constitute an "erroneous term in the judgment" under Blakely and Dilts. Where that is the case, a trial court would be authorized to "modify" that erroneous term. Accordingly, the trial court in this case did not lack jurisdiction to consider defendant's motion asserting that sentencing error.
Harding at 421. [Emphasis added.]
As noted above, the Harding opinion was subsequently vacated because Mr. Harding had filed his notice of appeal late. But the substance of the Harding analysis was unchanged.
But while merger mistakes aren't the only error that a trial judge could fix, they might be the easiest. They are relatively easy to identify from the previous judgment and indictment, both available in the court file, and confirmation would take a minimum of investigation. Once confirmed, the error will be obvious, without requiring the reliance on facts that could be disputed. (No trial judge will fix the error if it's not clear that actually was an error.) The state wouldn't have a particularly strong interest in maintaining an unlawfully and erroneously high number of convictions, at least not one they'd want to admit in court.
As always, the compilation of merger cases from the past few years can be found here.
