Aggregation of Theft Cases – Equal Protection

You know how in cases where there are a bunch of thefts against the same victim, the prosecutor will aggregate the thefts to maximize the potential penalties?  For example, the prosecutor might aggregate thefts until they get to $10,000 and then start over with a new aggregated theft.  Rinse and repeat for each 10K.  Or, worse, the thefts might get aggregated to a felony amount with as many felonies charged as possible.   It turns out the prosecutor is allowed to do that.  But only if the prosecutor’s office has a sufficiently consistent standard for when to aggregate that it amounts to a coherent, systematic policy.   There is a case on appeal out of MPD where the DA had no such policy (like most offices in the state).  Conor Huseby did a nice job preserving the issue.  Ernie Lannet wrote the brief for OPDS.  I just turned Ernie’s appellate brief in PDF into a trial memo in Word:

Equal Protection Theft Aggregation motion

Oh, and here’s the AG’s response brief in the aforementioned case:

Aggregation – AG response

Ryan made a comment to this post that, as always, is worth promoting to the front page:

The primary reason the prosecutor will aggregate to a $ figure, rather than in six month increments, is because each individual Theft I (or Aggravated Theft I) would arguably constitute a separate criminal episode, and therefore each could be a predicate towards a presumptive prison/repeat property offender sentence for the next count and the next and the next.

But, as pointed out to me by Rob Harris of Harris Law Firm in Hillsboro, separate criminal episodes — whether found by a judge or a jury — are factual questions. What the state is attempting to do by way of creative aggregation is create separate criminal episodes via arbitrary divisions in the incident dates — to create facts, in other words — to serve its sentencing goals. This should be beyond the state’s ability. It’s no different than saying the state is allowed to get a “gun minimum” sentence by alleging you had a gun when you committed the crime, and by so alleging, you had a gun as a matter of law.

How do you defeat this, aside from the challenge above? First, the prosecutor will assume each count constitutes a single criminal episode, but you shouldn’t. Determine if the crimes — often embezzlement from one employer, to give a common example — sufficiently cross-relate, so that they nevertheless constitute a single criminal episode. If they do cross-relate, and therefore they constitute a single criminal episode, then the defendant who isn’t a repeat property offender for the first count isn’t a repeat property offender for the second, third or fourth count.

If you don’t think you can win the “cross-relate” argument, then argue that the legislature has demonstrated its intent — when aggregation like this occurs — to make each six month period one criminal episode. This is evidenced by the language from the aggregation statute which allows aggregation: “Against the same victim, or two or more persons who are joint owners, within a 180-day period.” Note that it does not say “periods up to 180 days,” a phrase that is used in other contexts and would explicitly permit shorter periods of aggregation.

Third, argue it’s a jury question and point out that the jury was never asked. Although State v. Mallory stands for the proposition that a finding of separate episodes is only a jury question when the dates in the indictment overlap, point out that due process would prohibit that limitation when it’s the prosecutor — not the facts of the case — that dictate the range of dates for each count.