CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, April 16, 2013

Obrecht on Merger of Sentences

Alexander K. Obrecht has posted Criminal Law - Merger of Sentences: The Legislature Says You Can't Hang 'Em Twice; Najera v. State, 214 P.3d 990 (Wyo. 2009) (Wyoming Law Review, 12 Wyo. L. Rev. 141 (2012)) on SSRN. Here is the abstract:

Historically, few constitutional protections conjured more mutated conceptions in society than double jeopardy. The United States Supreme Court holds that the Double Jeopardy Clause embodies the freedom from successive prosecution and multiple punishments for the same offense. This case note focuses on the freedom from multiple punishments, specifically post-conviction merger of sentences.

In Najera v. State, the jury convicted Najera of twelve counts of improper sexual contact with his two adopted minor daughters. Six counts were for sexual assault; the remaining six counts were for felony incest. The trial court sentenced Najera to consecutive sentences for sexual assault and incest. Najera appealed, contending that the convictions for sexual assault and incest should merge for sentencing purposes. The Wyoming Supreme Court agreed and reversed the trial court, holding that the convictions merged and that Najera should serve his sentences concurrently.

This case note advances three arguments to illustrate that the Wyoming Supreme Court must revisit the merger analysis applied in Najera. First, the court's application of the merger test parallels a test that the United States Supreme Court overruled. Second, the Wyoming Supreme Court based the policy justification and structure of its merger analysis on Pennsylvania law that as subsequently abandoned. Finally, the correct merger analysis represents a tool of statutory construction used to determine whether the legislature intended to create distinct offenses. The merger analysis applied in Najera must be revisited.

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