The Easiest Merger Argument Defense Attorneys Still Aren't Making

by: Ryan Scott • May 2, 2025 • no comments

Assume defendant is accused of shooting at someone and missing. He is ultimately convicted of Attempted Murder w/ a firearm and UUW w/ a firearm (the latter for discharging the firearm at another person, as well as alternative theories the jury never specifically accepts).

Okay, we call all agree if the defendant is sentenced on both, the two sentences would have to run consecutively. But why stop there? The counts merge into a single conviction, and while it may not make a difference in their overall sentence, one conviction is always better than two. A secondary consideration is, if you lose the merger argument, and you win on appeal, you might have a shot at re-sentencing that maybe would give your client some relief, either because the law has changed or your client has done well in prison. Maybe not based on these two charges, but other charges (like Attempted Assault and UUW, which may not have a mandatory minimum.)

Anyway, merger of those two counts is an easy enough argument to make. And yet trial attorneys -- those who have been practicing for ten or twenty or thirty years -- don't make the 60-second effort. I am utterly baffled by this fact. And don't embarrass yourself by saying to me, UUW has a element attempted murder does not (the weapon). It's true but irrelevant. Attempted Murder w/ a firearm has an element of using a dangerous weapon.

Honestly, this a no-brainer, and I truly can't understand why the argument isn't routinely made.