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Reviving a Dead Argument: M11 and Accomplices

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by: Ryan • March 10, 2012 • no comments

I had pretty much given up hope on the argument that M11 didn't apply to accomplices. The COA shot it down. OSC didn't take review. I'd stopped encouraging people to raise it. There is some small reason to think it might be worth raising again.

First, let me quote from St v. Cobb, which held that M11 DID apply to accomplices:

Defendant contends that, because he was convicted of robbery in the second degree on a theory of aiding and abetting, he was not convicted of the offense "as defined in ORS 164.405."(3) Rather, he contends, he was convicted of robbery in the second degree as defined in ORS 161.155(2)(b), which imposes liability on a person who "aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime." Defendant contends that ORS 137.700 makes no express reference to ORS 161.155, and he asserts for that reason that a person convicted of second-degree robbery--a Measure 11 offense--on an aiding and abetting theory is not subject to a Measure 11 sentence. The flaw in defendant's reasoning is that aiding and abetting is a theory of criminal liability, not a separate offense.

That last sentence is the COA's analysis in full. If that last sentence turned out not to be true, then arguably we'd have a shot at getting a different result.

So what's changed? The OSC has taken review of a case that, if it goes the right way, could hold that aiding and abetting is a different offense, not just a different theory of criminal liability. The case is State v. Phillips, and the first question the OSC is going to address is:

(1) Is the crime of assault in the third degree, committed by the defendant while aided by another person actually present, the same crime as assault in the third degree committed by another person aided by the defendant?

The second question is:

(2) If principal- and accomplice-liability are the same crime, are they also the same prosecution theory?

Now, there are a lot of ways Phillips could go. Mr. Phillips could win and we still get a ruling that doesn't help us with the M11/sentencing argument. For example, the OSC could make a ruling specific to that particular crime, the elements of which make it somewhat unique among crimes. (Yes, "somewhat unique" is a semi-oxymoron, but there's only one other crime with similar elements: robbery in the second degree based on "aided by another actually present.") Or Phillips could lose.

But there is at least a small possibility that the OSC could hold that accomplice liability and principal liability -- because they have different elements -- are two different crimes. And if they do that, the COA's holding in Cobb falls apart.

Is this a reason to go to trial? Of course not. Is this a reason to take 60 seconds to preserve the issue after you've already lost the trial? You have to ask?