Open Questions Regarding Merger
If you start the clock about five years ago, you could argue we've reached late in the third quarter when it comes to merger law. There have been so many open questions answered in the past five years that there aren't that many left. Not to say the issue will ever be completely exhausted, but only a few big ones remain.
And I thought I'd list them here, at least the ones that I hope will be answered in the next two to three years. I'm sure I'm forgetting some. Also, this list will not include those issues that the COA has, in my humble opinion, gotten wrong, on which the OSC has yet to weigh in. I think those issues -- merger of Hit & Run, merger of ID Theft involving real people -- are worth preserving until they get up to the OSC, but I've written enough about both that the topic even bores me a little bit.
So what's left?
(1) When the state alleges the gun minimum, does the charge it's attached to merge with Unlawful Use of a Weapon?
The argument is pretty straightforward: by adding the gun minimum language ("use or threatened use of a firearm"), the state has alleged all the elements of one theory of UUW, making that theory of UUW a lesser-included offense. If the state has separately charged UUW, then UUW merges into the greater offense.
If you were a prosecutor, and you hadn't thought about this issue at all, your response might be this: the gun minimum language does not constitute an "element," but only a sentence enhancement, and therefore it shouldn't be treated as an element for the purposes of lesser-included offenses and merger.
That sounds good. The problem is: the gun minimum language is an element. The gun minimum statute itself refers to it as an element. State v. Wedge says it's an element. Ergo, it's an element. And I'd be surprised if the state has any other argument opposing merger to make.
Expect an opinion one way or another from the COA sometime in 2013.
(2) Does alleging "substantial quantities of PCS" as a sentence enhancement to DCS result in the DCS merging with a separate PCS?
Here's where the state's argument that I cavalierly dismissed in (1) above would have legs. In a previous post, I argue why we should still win, even if the law doesn't change. But the law may change. The OSC has under advisement a case called St v. Reinke, which -- even if Mr. Reinke loses -- could reaffirm that offense-specific sentence enhancements (like the gun minimum in St v. Wedge) are actual elements, contrary to current COA case law. While Reinke has nothing to do with merger, the kind of merger raised in (2) could logically follow from a good opinion.
I don't think we'll get an actual opinion on this until 2014. While I don't think it's logically necessary, we probably need Reinke to shake up the status quo before the COA starts taking the issue seriously.
(3) Is a sufficient pause a "Blakely fact"?
Let's assume the defendant is found with a gun in each room in his house. Under current (and, I think, misguided) case law, the location of each gun could support a finding by the trial court of a sufficient pause that would prohibit merger of the felon in possession counts. But if a "sufficient pause" is a Blakely fact, then the failure of the state to submit the question of a sufficienct pause to a jury would foreclose that finding by the trial court. While a sufficient pause does not "increase the maximum sentence," it would increase the number of actual convictions, which seems equally worthy of 6th Amendment protection.
(4) Two-parter: do multiple counts of ID Theft (based on simultaneous possession) merge if the "victim" is either imaginary or dead? And secondly, is a finding that the "victim" is real and living at the time of the crime a Blakely fact?
The COA has said the named "victim" in ID Theft cases is a victim for the purposes of (prohibiting) merger. But the Court implied that it's ruling was limited to actual living people, which makes sense, since no harm can befall an imaginary person. If I simultaneously possess fake IDs in the names of all characters in Scooby-Doo, do all those ID Theft counts merge in the same way they would if I had twenty IDs but all in the name of Velma MacIntosh*?
*Velma's actual last name unknown. I got half-way through the Wikipedia page and felt I now knew way more about Scooby-Do than any human being should. I didn't have the fortitude to find out if she'd ever been given a last name.
And again, if their actual existence is necessary to prohibit merger, then is the victim's actual existence a question for the jury since, as noted above, a finding that results in additional convictions deserves just as much 6th Amendment protection as a finding that increases the sentence of a single conviction?
Anyway, those are my favorite open questions about merger. I hope someone will get the issues in front of the COA, so we can keep moving the ball forward.