Merging because the legislature says so.

State v. Fagaragan (ICA Sept. 10, 2007)

Background. After a routine traffic stop, the police found from Fagaragan's pockets a bag with methamphetamines in individual plastic packets. Fagaragan was charged with Promoting a Dangerous Drug in the 1st Degree; Attempted Promotion of a Dangerous Drug in the First; and Prohibited Acts Related to Drug Paraphernalia. A jury found him guilty on all three counts, and the circuit court sentenced him on all three counts without merger. On appeal, Fagaragan argued that his promoting-in-the-first count should have merged with the prohibited-acts count thereby amounting to plain error.

Merger based on plain language and legislative intent of the statute, NOT on general principles. The ICA avoided constitutional arguments as well as arguments based on the general rules of merger provided in HRS § 701-109, by determining at the outset that the statute itself called for merged counts. Instead, the ICA held that convictions merge when the plain language and the legislative history demonstrate that the legislature did not intend on the imposition of multiple punishments. This is a threshold question. Therefore, before getting lost in the mire of general merger issues, check the statute itself for a legislative intent to have its offenses merge. This approach is not limited to just drug offenses, but should be considered for nearly all criminal statutes.


Plain language/structure of statute demonstrates merger. HRS § 712-1241 provides different kinds of offenses within the same statute. Promoting a dangerous drug in the first degree can be violated either by (a) possessing a certain quantity, (b) distributing a drug of a quantity lesser than mere possession, or (c) distributing any quantity to a minor. Based on this structure, the ICA held that when the same drugs found at the same point in time are used to support a conviction for the possession under (a) as well as distribution under (b), they merge together into a single punishment.

Legislative history suggests merger. HRS §712-1241 was enacted in 1970. The legislative history expressly stated that its purpose was to "hit hardest at the illegal trafficker" and lightest with the mere user. As a result, there are three tiers: the trafficker or dealer, the intermediary, and the user. From this, the ICA concluded that the legislature intended the possession of one ounce or more--the required weight to convict for distribution under the statute--to "serve as a proxy for the intent to distribute[.]" Put differently, the ICA concluded that when a defendant has on ounce or more of drugs, the "intent to distribute" is presumed, and need not be proven by the prosecution. The logic of the three tiers suggests that a defendant cannot be punished for being both a trafficker and a user for the same quantity of drugs in the same period of time.

Remedy for failing to merge. Once the ICA found error in a failure to merge the two convictions, it had to dismiss one or the other. But which one? Generally, the lesser-included offense should be dismissed unless the "lesser" is of a "higher grade and class." The rationale for the exception is that it'd be manifestly unfair to the prosecution and the public to reverse a more egregious conviction simply because it was an included offense. For example, when use of a firearm during the commission of a felony should have merged with the underlying felony of second-degree murder, it would be manifestly unfair to dismiss the murder conviction. State v. Jumila, 87 Hawai'i 1, 7, 950 P.2d 1201, 1204 (1998).

This case is not as easy and arguably adds a new contour to the phrase "manifestly unfair." Both attempted the distribution and possession offenses carry the same maximum, and so the rationale from Jumila doesn't fit as nicely. It doesn't matter which one should be dismissed. Neither appear to be manifestly unfair. Nevertheless, the State conceded that the distribution conviction was based on erroneous jury instructions. Therefore, the ICA reasoned that it would be "manifestly unfair" to dismiss a conviction with correct instructions, while keeping an erroneously-instructed one.

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