merger doctrine in District of Columbia

2021Despite the appellants’ www.oed.com/view/Entry/9784 (last visited July 10, 2021) (“of a significant extent or degree”). 8 In Byrd v. United States, 598 A.2d 386, 390-91 (D.C. 1991) (en banc)—a case that was not about and did not mention the word kidnapping—we rejected the merger analysis endorsed by Robinson and Sinclair.

2020Appellant’s 16 reliance on Nelson and Robinson is misplaced, because in this court’s en banc decision in Byrd v. United States, 598 A.2d 386 (D.C. 1991), we overruled Robinson and held that the merger analysis should be governed by the Blockburger “elements test[.]” Richardson, 116 A.3d at 439-40 .

1985The merger doctrine protects a defendant by preventing the government from taking conduct constituting one offense, and multiplying that offense into many charges subjecting the defendant “to multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969).

1985The merger doctrine protects a defendant by preventing the government from taking conduct constituting one offense, and multiplying that offense into many charges subjecting the defendant “to multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969).

2017See Breed v. Jones, 421 U.S. 519, 530-31 , 95 S.Ct. 1779 , 44 L.Ed.2d 346 (1975); see also In re Z.B., 131 A.3d 351, 354-55 (D.C. 2016) (considering a merger claim in a juvenile delinquency appeal).

2017In line with this purpose, the ASAA “rnodernize[d] the District`s antiquated rape and sexual assault laws" by ‘“creating graded offenses for sexual assaults ofvarying [degrees ol] severity[.]" Io'. at 2. ln addition to creating graded forms of sexual 2 Preliminarily, we obseiye that the merger protection ofthe Double jeopardy C`lause applies equally in juvenile delinquency proceedings and adult criminal prosecutions See Breer/ v. ./ones, 421 U.S. 519 . 530 31 (1975); see also fn re Z.B.. 131 A.3d 351 , 354 55 (D.C. 201()) (considering a merger claim in a juvenile delinquency appeal). l\/loreov

2015Wilson v. United States, 528 A.2d 876, 879 (D.C.1987) (citing North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969)). “[A] single transaction may result in distinct offenses under separate statutes without violating the Double Jeopardy Clause.” Id. (citing Albernaz v. United States, 450 U.S. 333 , 344-45 n. 3, 101 S.Ct. 1137 , 67 L.Ed.2d 275 (1981)).

2015Wilson v. United States, 528 A.2d 876, 879 (D.C. 1987) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). “[A] single transaction may result in distinct offenses under separate statutes without violating the Double Jeopardy Clause.” Id. (citing Albernaz v. United States, 450 U.S. 333 , 344-45 n.3 (1981)).

1995In light of Simmons’ contention that proper application of the merger doctrine reduces these twenty convictions to one count of first degree burglary and one count of possession of a firearm during a crime of violence, we will treat this appeal as presenting the question whether any of these twenty convictions merges with another. 5 III. “[T]he [Double Jeopardy Clause of the] Fifth Amendment does not prohibit separate and cumulative punishment for separate criminal acts.” Owens v. United States, 497 A.2d 1086, 1094-95 (D.C.1985), cert. denied, 474 U.S. 1085 , 106 S.Ct. 861 , 88 L.Ed.2d 900 (19

1990This court has also held that the Double Jeopardy Clause of the Fifth Amendment does not prohibit “separate and cumulative punishment for separate criminal acts.” Owens v. United States, 497 A.2d 1086, 1094-1095 (D.C.1985), cert. denied, 474 U.S. 1085 , 106 S.Ct. 861 , 88 L.Ed.2d 900 (1986).

1990It is settled law that the doctrine of merger “does not apply where the offenses arise out of separate acts or transactions.” Villines v. United States, 320 A.2d 313, 314 (D.C.1974) (citation omitted); accord, Logan v. United States, 460 A.2d 34, 36 (D.C.1983).

1983The doctrine of merger, however, “does not apply where the offenses arise out of separate acts or transactions.” Villines v. United States, 320 A.2d 313, 314 (D.C.1974); see Tuckson v. United States, 364 A.2d 138, 142 (D.C.1976) (merger inapplicable where evidence shows “two separate and distinct” offenses); Dixon v. United States, 320 A.2d 318, 321 (D.C.1974) (merger cannot occur where offenses are “separate and apart” from one another).

2021See Richardson, 116 A.3d at 439 (noting Byrd overruled Robinson’s approach to determining “whether offenses should merge”).

2020Appellant’s 16 reliance on Nelson and Robinson is misplaced, because in this court’s en banc decision in Byrd v. United States, 598 A.2d 386 (D.C. 1991), we overruled Robinson and held that the merger analysis should be governed by the Blockburger “elements test[.]” Richardson, 116 A.3d at 439-40 .

2017See Breed v. Jones, 421 U.S. 519, 530-31 , 95 S.Ct. 1779 , 44 L.Ed.2d 346 (1975); see also In re Z.B., 131 A.3d 351, 354-55 (D.C. 2016) (considering a merger claim in a juvenile delinquency appeal).

2017In line with this purpose, the ASAA “rnodernize[d] the District`s antiquated rape and sexual assault laws" by ‘“creating graded offenses for sexual assaults ofvarying [degrees ol] severity[.]" Io'. at 2. ln addition to creating graded forms of sexual 2 Preliminarily, we obseiye that the merger protection ofthe Double jeopardy C`lause applies equally in juvenile delinquency proceedings and adult criminal prosecutions See Breer/ v. ./ones, 421 U.S. 519 . 530 31 (1975); see also fn re Z.B.. 131 A.3d 351 , 354 55 (D.C. 201()) (considering a merger claim in a juvenile delinquency appeal). l\/loreov

2013See id.

1997Moreover, we have previously recognized that “[t]he presence or absence of a merger clause indicating complete integration may be a significant, though not conclusive, factor in ascertaining the parties’ intent.” Good Food, supra, 608 A.2d at 127 .

1983The doctrine of merger, however, “does not apply where the offenses arise out of separate acts or transactions.” Villines v. United States, 320 A.2d 313, 314 (D.C.1974); see Tuckson v. United States, 364 A.2d 138, 142 (D.C.1976) (merger inapplicable where evidence shows “two separate and distinct” offenses); Dixon v. United States, 320 A.2d 318, 321 (D.C.1974) (merger cannot occur where offenses are “separate and apart” from one another).

1974Dixon v. United States, D.C.App., 320 A.2d 318 (1974).

2017Moreover, a juvenile may raise a merger claim because a delinquency disposition may carry "penal consequences for an offender later in life.” H.M. v. State, 892 N.E.2d 679, 682 (Ind. Ct. App. 2008). 3 .

2017Moreover, a juvenile may raise a merger claim because a delinquency disposition may carry "penal consequences for an offender later in life.” H.M. v. State, 892 N.E.2d 679, 682 (Ind. Ct. App. 2008). 3 .

2015Except, whoever shall attempt to commit a crime of violence as defined in § 23-1331 shall be punished by a fine not exceeding $5,000 or by imprisonment for not more than 5 years, or both. 9 .See Pixley v. United States, 692 A.2d 438, 440 (D.C.1997) (quoting the full text of the unarmed carjacking statute to complete a merger analysis of carjacking and robbery, stating: "we observe that carjacking by definition includes an "attempt []” to take property, while robbery does not”); Allen, supra, 697 A.2d at 2 (quoting the full text of the unarmed carjacking statute to complete a merger analysis of

2015Except, whoever shall attempt to commit a crime of violence as defined in § 23-1331 shall be punished by a fine not exceeding $5,000 or by imprisonment for not more than 5 years, or both. 9 .See Pixley v. United States, 692 A.2d 438, 440 (D.C.1997) (quoting the full text of the unarmed carjacking statute to complete a merger analysis of carjacking and robbery, stating: "we observe that carjacking by definition includes an "attempt []” to take property, while robbery does not”); Allen, supra, 697 A.2d at 2 (quoting the full text of the unarmed carjacking statute to complete a merger analysis of

2015Except, whoever shall attempt to commit a crime of violence as defined in § 23-1331 shall be punished by a fine not exceeding $5,000 or by imprisonment for not more than 5 years, or both. 9 .See Pixley v. United States, 692 A.2d 438, 440 (D.C.1997) (quoting the full text of the unarmed carjacking statute to complete a merger analysis of carjacking and robbery, stating: "we observe that carjacking by definition includes an "attempt []” to take property, while robbery does not”); Allen, supra, 697 A.2d at 2 (quoting the full text of the unarmed carjacking statute to complete a merger analysis of

2015Except, whoever shall attempt to commit a crime of violence as defined in § 23-1331 shall be punished by a fine not exceeding $5,000 or by imprisonment for not more than 5 years, or both. 9 .See Pixley v. United States, 692 A.2d 438, 440 (D.C.1997) (quoting the full text of the unarmed carjacking statute to complete a merger analysis of carjacking and robbery, stating: "we observe that carjacking by definition includes an "attempt []” to take property, while robbery does not”); Allen, supra, 697 A.2d at 2 (quoting the full text of the unarmed carjacking statute to complete a merger analysis of

2015Except, whoever shall attempt to commit a crime of violence as defined in § 23-1331 shall be punished by a fine not exceeding $5,000 or by imprisonment for not more than 5 years, or both. 9 .See Pixley v. United States, 692 A.2d 438, 440 (D.C.1997) (quoting the full text of the unarmed carjacking statute to complete a merger analysis of carjacking and robbery, stating: "we observe that carjacking by definition includes an "attempt []” to take property, while robbery does not”); Allen, supra, 697 A.2d at 2 (quoting the full text of the unarmed carjacking statute to complete a merger analysis of

2015Except, whoever shall attempt to commit a crime of violence as defined in § 23-1331 shall be punished by a fine not exceeding $5,000 or by imprisonment for not more than 5 years, or both. 9 .See Pixley v. United States, 692 A.2d 438, 440 (D.C.1997) (quoting the full text of the unarmed carjacking statute to complete a merger analysis of carjacking and robbery, stating: "we observe that carjacking by definition includes an "attempt []” to take property, while robbery does not”); Allen, supra, 697 A.2d at 2 (quoting the full text of the unarmed carjacking statute to complete a merger analysis of

2015Except, whoever shall attempt to commit a crime of violence as defined in § 23-1331 shall be punished by a fine not exceeding $5,000 or by imprisonment for not more than 5 years, or both. 9 .See Pixley v. United States, 692 A.2d 438, 440 (D.C.1997) (quoting the full text of the unarmed carjacking statute to complete a merger analysis of carjacking and robbery, stating: "we observe that carjacking by definition includes an "attempt []” to take property, while robbery does not”); Allen, supra, 697 A.2d at 2 (quoting the full text of the unarmed carjacking statute to complete a merger analysis of

2007Sands was subsequently cited by the Court of Appeals of Virginia in Bazzle v. Bazzle, 37 Va.App. 737 , 561 S.E.2d 50, 55 (2002), for the “well settled” principle that “[w]hen a cause of action has been reduced to a judgment, the cause of action is merged into the judgment and cannot form the basis for future suits between the parties.” Then, in Lee v. Mulford, 269 Va. 562 , 611 S.E.2d 349 (2005), the Virginia Supreme Court again considered the relation between an underlying cause of action (again a suit on a promissory note) and a request for attorney’s fees based on the contract, and recogniz

2007Sands was subsequently cited by the Court of Appeals of Virginia in Bazzle v. Bazzle, 37 Va.App. 737 , 561 S.E.2d 50, 55 (2002), for the “well settled” principle that “[w]hen a cause of action has been reduced to a judgment, the cause of action is merged into the judgment and cannot form the basis for future suits between the parties.” Then, in Lee v. Mulford, 269 Va. 562 , 611 S.E.2d 349 (2005), the Virginia Supreme Court again considered the relation between an underlying cause of action (again a suit on a promissory note) and a request for attorney’s fees based on the contract, and recogniz

2007Sands was subsequently cited by the Court of Appeals of Virginia in Bazzle v. Bazzle, 37 Va.App. 737 , 561 S.E.2d 50, 55 (2002), for the “well settled” principle that “[w]hen a cause of action has been reduced to a judgment, the cause of action is merged into the judgment and cannot form the basis for future suits between the parties.” Then, in Lee v. Mulford, 269 Va. 562 , 611 S.E.2d 349 (2005), the Virginia Supreme Court again considered the relation between an underlying cause of action (again a suit on a promissory note) and a request for attorney’s fees based on the contract, and recogniz

2007Sands was subsequently cited by the Court of Appeals of Virginia in Bazzle v. Bazzle, 37 Va.App. 737 , 561 S.E.2d 50, 55 (2002), for the “well settled” principle that “[w]hen a cause of action has been reduced to a judgment, the cause of action is merged into the judgment and cannot form the basis for future suits between the parties.” Then, in Lee v. Mulford, 269 Va. 562 , 611 S.E.2d 349 (2005), the Virginia Supreme Court again considered the relation between an underlying cause of action (again a suit on a promissory note) and a request for attorney’s fees based on the contract, and recogniz

1996See, e.g., Hines v. United States, 326 A.2d 247 (D.C.1974). [2] The Court went on to explain that, "[i]n subsequent applications of the test, we have often concluded that two different statutes define the `same offense,' typically because one is a lesser included offense of the other." ___ U.S. at ___, 116 S.Ct. at 1245 . [3] This court's decisions follow the Supreme Court's merger analysis.

1996See, e.g., Byrd v. United States, 598 A.2d 386, 389 (D.C.1991) (en banc); see also D.C.Code § 23-112 (1996) (embodying the Blockburger test). [4] The government also had to prove the operability of the machine gun to convict under PPW (a), Washington v. United States, 498 A.2d 247 (D.C. 1985), something UF does not require.

1995Thus, “[i]t is settled law that the doctrine of merger does not apply where the offenses arise out of separate acts or transactions.” Allen v. United States, 580 A.2d 653, 657 (D.C.1990) (citation and inter *853 nal quotation omitted).

1995Thus, “[i]t is settled law that the doctrine of merger does not apply where the offenses arise out of separate acts or transactions.” Allen v. United States, 580 A.2d 653, 657 (D.C.1990) (citation and inter *853 nal quotation omitted).

1993This waiver expressly includes ... all other similar or related rights.[ 2 ] Similarly, the merger clause found in Article IX(A), 3 clearly evidences the parties’ intention to enter into a completely integrated contract and is supported by Article IX(B)’s provision that “[ejach party has carefully reviewed this Agreement ... [and] represents that he or she understands the meaning of the various provisions of this Agreement, and that the text does set forth the Agreement in the manner they had intended.” In reading the Agreement as a whole “giving reasonable, lawful and effective meaning to all

1993This waiver expressly includes ... all other similar or related rights.[ 2 ] Similarly, the merger clause found in Article IX(A), 3 clearly evidences the parties’ intention to enter into a completely integrated contract and is supported by Article IX(B)’s provision that “[ejach party has carefully reviewed this Agreement ... [and] represents that he or she understands the meaning of the various provisions of this Agreement, and that the text does set forth the Agreement in the manner they had intended.” In reading the Agreement as a whole “giving reasonable, lawful and effective meaning to all