Merging Possessions of Oxycodone and Methadone
by: Ryan • July 2, 2014 • no comments
In a per curiam opinion this morning, the Court of Appeals remanded back to the Washington County trial court two counts of possession of a controlled substance, one for oxycodone and one for methadone. Further, the court did so under the review standard of plain error.
The legal analysis is simple, but to my knowledge this is the first time it's been successfully applied in this situation (merger of possession two different controlled substances-- in fact, there had been contrary authority that had been overruled). The two substances fall into the catch-all; that is, both were charged under the same statute (former ORS 475.840(3)(b), possession of a controlled substance), unlike statutes specifically prohibiting the possession of cocaine or methamphetamine.
The question is, could you get the same result for simultaneous possession of cocaine and methamphetamine, both schedule II controlled substances, but each with their own statutes. Arguably yes, since the standard is not whether the counts come from the same statute but whether they come from the same "statutory provision," a phrase that is often -- though not always -- read more broadly that simply the same statute. How broad the statutory provision is depends on legislative intent. Here, there's some good legislative history -- at least there was -- on why cocaine and methamphetamine were originally broken into different statutes-- it was merely to keep track of convictions for each substance, not, apparently, out of any desire to treat them differently. (I don't have the legislative history myself, but I know who does. Contact me if you need his name. Note that the statutes have been renumbered again, and I don't know the reason why, but obviously that means the possibility of more legislative history.)
This question can be disputed either way, so we aren't going to get a win on plain error. But it's potentially a big deal, especially if we extend the logic to delivery or manufacture, not just possession.
As I noted in my list of my favorite open questions, we can win some merger issues involving controlled substances that don't necessarily require overturning precedent (though some do). I've written about most of these issues at the LoD, and many of those posts can be found on the Ryan page. But you can also send me the indictment if so inclined, and I'll share what I have.
