What open merger questions remain?
by: Ryan • February 21, 2016 • no comments
In my preceding post, I noted that the OSC has taken up one of the few remaining open merger questions. What are some of the other ones?
(1) Rob I (possession of a deadly weapon) should merge with Rob II (representation of a dangerous or deadly weapon) IF the Rob I also has the gun minimum attached. The allegation of the gun minimum makes the Rob II a lesser-included of Rob I (St v Riehl). And if there was any doubt, St v Flores holds that the gun minimum is an element of the aggravated offense. Putting those two together should be more than enough to get the counts to merge into a single conviction.
(2) PCS should merge into DCS IF "possession of substantial quantities of PCS" is alleged as an enhancement of DCS. Adding that enhancement makes PCS a lesser-included offense, just as adding the gun minimum language to Felon in Possession makes UUW a lesser-included offense. The state will argue that, unlike the gun minimum, the enhancement factor here -- substantial quantities -- is not an element. Logically, however, the distinction makes no sense under either the Oregon or the United States Constitution. (See State v. Wedge.) The beauty of this argument is that it doesn't require the court to overrule St v Sergent. This issue is under advisement with the COA.
(3) PCS might merge into DCS regardless of whether the DCS includes "substantial quantities" language under a theory that the two crimes are part of the same "statutory provision," a phrase with some elasticity to it. This too wouldn't require overruling Sergent, and I think the issue -- or more precisely the legal argument -- has been preserved.
(4) Multiple counts of ID Theft should merge even if different identities are used IF crimes arise out of one criminal episode and the state fails to showing real living victims.
