When Merger Actually Reduces the Sentence
by: Ryan • February 1, 2014 • no comments
Successful merger of guilty verdicts on appeal rarely reduces the sentence on remand, because if the charges were related enough to merge, even a judge who didn't merge them might have been disinclined to run the sentences consecutively.
An exception to that rule was highlighted this week. The Court of Appeals issued the per curiam opinion State v Amaya, holding that the court should have merged Unlawful Use of a Weapon into the Felon in Possession of a Firearm for a single conviction of Felon in Possession of a Firearm with a Firearm.
It was a per curiam opinion because the Court had already ruled for the defense on the identical issue in State v. Flores. Notably, the Oregon Supreme Court denied review of Flores this week.
Because the COA ordered the counts merged in Amaya, the second assignment of error was moot: did the court err in running the sentences consecutively? Consequently, when the case goes back down for re-sentencing, the defendant has a good shot at a shorter sentence. Counts that merged can't be run consecutively, although the question is whether other previously concurrent counts might.
Can Flores be expanded beyond gun minimum cases? Maybe. I would like to see people preserve an argument for merger of DCS-substantial quantity and PCS, under the same rationale as Flores. Or maybe misdemeanor assault with some level-9 burglaries. It's not a slam dunk they merge, which is why these types of arguments are referred to as "pushing the envelope." But the worst that can happen is the court says no. And thus some legal arguments are perhaps best analogized to asking for the phone number of the best-looking person at the party. Fortune favors the bold.
