Do DCS and PCS Merge? UPDATED
UPDATE: For a strong argument on merging DCS and MCS, see this post.
UPDATE: Check out the essay “The Merger Argument Even I’d Forgotten About” for a situation where DCS and PCS (or MCS and PCS) almost certainly merge, despite the Sargent case.
UPDATE II: Unlike delivery, the definition of MCS does not include “attempted manufacturing” although it does include “preparation.” For that reason, the Blake argument I’ve made below is much more favorable to merging MCS and PCS than DCS and PCS.
Do Delivery and Possession of a Controlled Substance merge into a single crime?
The short answer is “no.” In a case from 1991, the Oregon Court of Appeals held that DCS and PCS do not merge, because each crime contains an element the other does not. Specifically, a person can deliver a controlled substance (which, by statute, includes “attempted delivery”) but not possess the controlled substance. State v. Sargent, 110 Or App 194 (1991).
But there’s been a revolution in merger law in the past five years that has been largely defense-favorable, and it is worth revisiting our old assumptions, including whether the Sargent case is still good law. This is especially true in light of State v. Blake, ___ Or ___ (2010), which holds that a person who utters a forged document necessarily possesses it. Therefore, Forgery merges with Possession of a Forged Instrument. The state had argued in Blake that an accomplice could aid the uttering of a forged document but not possess it, and therefore possession didn’t always accompany uttering.
The Oregon Supreme Court rejected that argument:
Accomplice liability makes a person who aids or abets a crime liable for that crime even though the accomplice may not have committed any of the acts that the crime entails. See ORS 161.155(2)(b) (criminal liability for aiding and abetting another person in planning or committing a crime). Because the principal who utters a forged instrument also necessarily possesses it, a person who aids and abets the principal in the crime of forgery by definition also aids and abets the principal in the crime of criminal possession of a forged instrument. An accomplice who is liable for forgery is also liable for criminal possession of a forged instrument.
Blake at ___.
But “delivery” is different than “uttering,” because the statutory definition of delivery includes “attempted delivery.” The Sargent court relied on that distinction when it held that “soliciting” someone else to commit a crime was enough to constitute “attempt.” It’s a three-step analysis to reach their conclusion. (1) A defendant who asked a third party to deliver drugs that the third-party did not possess would be guilty of soliciting the crime of DCS. (2) Soliciting is, at least theoretically, sufficient to prove attempted delivery. (3) And attempted delivery equals delivery, even if there was never a time when any drugs were possessed by anyone.
The Sargent court relied heavily on the legislative commentary for the idea that solicitation could be enough to equal an attempt, giving no indication that the legislative commentary was actually quite ambivalent on the topic. Specifically, the Sargent court quoted the commentary for an example of what constitutes “attempt”: “(g) soliciting an innocent agent to engage in conduct constituting an element of the crime.”
But a subsequent Court of Appeals would note, in an attempted murder/solicitation to commit murder case that “[the] Commentary does not adopt the list; it includes the list as examples of actions that ‘could be held to be substantial’ because they are “strongly corroborative” of the actor’s criminal intent. Commentary, § 54 at 51.” State v. Johnson, 202 Or App 478, 487 (2005)[Bold added.]
The Johnson court further muddied the waters:
In fact, the Commentary’s treatment of solicitation and its relation to attempt is inconclusive. Its treatment of State v. Taylor, 47 Or 455, 84 P 82 (1906), demonstrates that fact. In Taylor, the defendant solicited a knowing (as opposed to innocent) agent to commit arson, and the court held that the solicitation amounted to an attempt. 47 Or at 464. In discussing the case (among others) in the Commentary to what would become the attempt statute, the commission wrote, “The very few Oregon attempt cases found [including Taylor] indicate that the language of the draft section both as to intent and the nature of the act is generally in accord with existing Oregon law.” Commentary, § 54 at 52 (emphasis and bracketed terms added). That statement would indicate that Taylor remains good law even after the adoption of ORS 161.405.
Discussing the draft solicitation statute, however, the commission reported that Taylor represents a minority view and explained that, under the majority view, solicitation “does not ordinarily constitute an attempt.” Commentary, § 57 at 57 (emphasis added). The commission noted that at the time Taylor was decided, “Oregon had no general solicitation statute,” and “thus, for justice to reach the defendant in the Taylor case, the general attempt statute was employed.” Id. As a consequence, the commission claimed that Taylor “in effect [made] solicitation the equivalent of a criminal attempt.” Id. However, the commission did not disavow Taylor, nor did it categorically state that any solicitation constitutes nothing more than “mere preparation.
Johnson at 488. [Emphasis added and in original.]
Unfortunately, Johnson does go on to reaffirm Sargent, although it is worth keeping in mind that the defendant in Johnson was making a somewhat peculiar argument that wasn’t in any way taking Sargent head on. No one in Johnson was trying to convince the court that Sargent wasn’t good law and so the Johnson court simply noted that it “saw no reason to depart” from the Sargent holding.
Incidentally, as the Johnson court observed, “in Ralston v. OSCI, 92 Or App 513, 517, 759 P2d 298 (1988) (Graber, J., concurring in part and dissenting in part), Judge Graber states that ‘mere solicitation,’ although a ‘step’ in the commission of a crime, is not ‘substantial’ for purposes of attempt. In addition to the fact that a statement in a concurring and dissenting opinion has no precedential value, Judge Graber’s statement relies on the common law and on cases decided before the current criminal code was adopted.”
Because one can solicit the delivery of drug and those drugs need not actually exist for a solicitation, the continuing validity of Sargent seems to hinge on a conclusion that “solicit ation” by itself is enough to constitute a “substantial step” towards the completion of a crime, i.e., an attempt. As the Johnson court noted, however, that conclusion was described as “the minority opinion” in the Commentary.
My argument for merger, if I were making it tomorrow, would be that Judge Graber had it right. “Solicitation” is not, by itself, enough for “attempted delivery.” Furthermore, I would argue, there is never a “substantial step” without the drugs themselves. If the word “substantial” means anything, it should be more than just talk, and without the drugs, it is never more than talk. There may be conspiracy, there may be solicitation, but there isn’t an actual attempt. And if you can’t have an attempted delivery without possession, the counts merge, as in Blake.
It strikes me as particularly absurd to convict someone of delivery of drugs when there are no drugs. I recognize that inherent absurdity is not necessarily counter-indicative of legislative intent, but the ambivalence in Johnson indicates that Sargent isn’t on entirely solid footing.
The Oregon Supreme Court has never weighed in on this topic. I don’t know if the COA would revisit the Sargent holding, but if you’ve gone to trial and lost on DCS and PCS, then there is zero harm in making the merger argument. But do the analysis above, don’t just ask for merger. Even when they are “just preserving an issue,” trial attorneys have an obligation to make a thorough argument if they want to convince the appellate attorney to challenge existing precedent. Trial attorneys expect, I think, appellate attorneys to do much of the heavy lifting in terms of case law, analysis and legislative history, but if the appellate attorney herself isn’t persuaded of the argument, the appellate courts will never hear about it.